Volume 170

Essays

Constitution of the United States. -
Ours is a racist Constitution. Despite its soaring language, it was founded on slavery and a commitment to racial inequality. This vision is etched in the constitutional text, from the notorious Three-Fifths Clause to the equally repugnant Fugitive Slave Clause. And despite the Civil War and the Reconstruction Amendments, the Constitution retains these vestiges of slavery in its fabric. After 230 years, it is time to remove these troubling provisions from the Constitution. This Essay offers a radical departure from prior constitutional practice. Instead of appending yet another amendment that would simply require readers to ignore the offending language, this Essay proposes a constitutional amendment that excises these words from the text. While this amendment would not abridge, enlarge, or modify any substantive rights, it would generate a document that further distances the United States from its racist past and better reflects this present moment in the journey to form a more perfect Union.
Eli Whitney's Cotton Gin Patent
The United States government owes African-Americans reparations for the harm of the Transatlantic Slave Trade. Existing reparations scholarship focuses on remedying losses related to real property, healthcare disparities, mass incarceration, and educational opportunities. But reparations for the Transatlantic Slave Trade must also include the value of patents historically denied to African-Americans. Revolutionary contributions from enslaved Black inventors and their descendants catapulted the United States to the top of the global economy. However, the United States denied enslaved Black people the right to property, including intellectual property to maximize the profitability of their inventions. After emancipation, structural racism and racial violence continued to ostracize African-Americans from the patent system until their inventive activity plummeted in the late 1800s. The Transatlantic Slave Trade’s legacy endures in the patent context: its violence has contributed to the underrepresentation of African-American patent applicants and awardees, stark disparities in income and economic mobility, and forgone inventive contributions. This harm warrants a comprehensive reparations package that confronts gaps in whites and African-American inventive activity.
Black Lives Matter Protest
Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges to the white supremacist social order. The use of federal officers in that violent response during the summer of 2020 makes the urgent need for Bivens relief for the victims of police violence clear. Fortunately, the history of the First and Fourth Amendments reveals a basis for extending Bivens relief under both Amendments in the context of the violent policing of Black protest. But will the courts or Congress extend that protection?
Looking Up At Thurgood Marshall Courthouse, 10.14.17
Modern mass tort defendants—including Johnson & Johnson, Purdue Pharma, USA Gymnastics, and Boy Scouts of America—have developed unprecedented techniques for resolving mass tort cases: innovation coupled with exploitation. Three weapons in this new arsenal are particularly noteworthy. Before filing for bankruptcy, corporate defendants undergo divisive mergers to access bankruptcy on their terms. Once in bankruptcy, these mass restructuring debtors curate advantageous provisions in the Bankruptcy Code to craft their own ad hoc resolution mechanism implemented through plans of reorganization. This maneuver facilitates questionable outcomes, including the third-party releases the Sackler family recently secured. Finally, a mass restructuring debtor can agree to convert its tainted business into a public benefit corporation after bankruptcy and devote future profits—no matter how speculative they may be—to victims in exchange for a reduced financial contribution to the victims’ settlement trust.
paper for contract and pen
The at-will doctrine permits employers to terminate employees at any time for any reason—or no reason at all—so long as it is not an illegal one. This creates a significant power imbalance between employers and employees, chills employee speech regarding unsafe or unlawful workplace conduct, and leaves employees vulnerable to arbitrary and unjust dismissals. The current system disproportionately impacts Black, Latinx, and women workers, who are often segregated into low-wage jobs where the at-will presumption applies. As evidenced by recent legislative efforts around the country, and especially in light of COVID-19, there is growing momentum in states and localities to replace the at-will doctrine with a just cause standard. By contrast, a just cause standard requires employers to articulate a bona fide reason for dismissal, use a system of progressive discipline, and provide written notice to employees. Not only is the just cause standard consistent with due process principles of adequate notice and fair process, it also seeks to address racial and gender inequities in the workplace and beyond.
Person in a wheelchair entering an inbound Red Line train at Harvard Square
“To effectuate its sweeping purpose, the Americans with Disabilities Act (ADA) forbids discrimination against disabled individuals in major areas of public life,” including public accommodations. The thesis of this Essay is that, under the ADA, public accommodations must be prepared to facilitate independent wayfinding to ensure access to, and effective communication inside, the relevant environment. While there is currently no case law which accepts or rejects this contention, I argue that the statutory and regulatory text requires this interpretation, and that wayfinding fits neatly within the textual structure. Moreover, existing relevant ADA case law tends to support this thesis.
Silverman Hall at the University of Pennsylvania Law School
Academics are incredibly privileged. They are paid relatively well to read, think, write, teach, learn, and provide service to their institutions and communities. Yet law professors, like every other segment of society, have struggled during the pandemic. The negative effects of COVID, which go far beyond health consequences, are not distributed equally either within or outside of legal education. Those faculty who were in vulnerable positions before March 2020 have borne the brunt of these difficulties during the pandemic. In the hierarchical structure of legal academia—one that prioritizes scholarship over service, the Socratic method above skills-based learning, and normative doctrinal scholarship more than identity-based research—underrepresented and marginalized populations have faced heightened challenges due to COVID.
The Demon - A rollercoaster at Six Flags Great America in Gurnee, IL
On August 5th, 2017, while enjoying the thrills and frills of a Six Flags theme park, Hugo and Sharon Soto used their debit cards to purchase food five separate times during their outing. After processing each payment for their food purchases, Six Flags issued them a receipt that contained all twelve digits of their debit card number. The Sotos sued in state court on behalf of themselves and a putative class arguing that these receipts violated the federal Fair Credit Reporting Act (FCRA), amended by the Fair and Accurate Credit Transactions Act (FACTA), which prohibits the printing of more than the last five digits of a credit or debit card number on an electronically printed receipt. The Sotos argued that their injury consisted of the chance that the receipts that they had thrown away could compromise their payment card information; however, they did not allege that their credit or debit card information had actually been compromised.

Responses

Puzzle piece found, black and white
Merritt McAlister’s Missing Decisions is an important contribution to our understanding of civil procedure, judicial decisionmaking, and the law itself. McAlister’s study demonstrates that many merits terminations by federal appellate courts aren’t readily accessible to the public, nor do they show up in major legal research databases like Westlaw, Lexis, and Bloomberg. Two of the limitations of Missing Decisions are that it relies on summary statistical tables to quantify the portion of merits terminations that are “missing,” and that it doesn’t include the United States Court of Appeals for the Federal Circuit because its statistical tables are in a different format than those of other circuits. Yet, the Federal Circuit is a prime candidate for understanding the issue of “missing decisions.” It is a court that has employed summary decisionmaking to a great extent, even as it is perhaps the most scrutinized court aside from the Supreme Court.
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