VOLUME 170, ISSUE 5 May 2022

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Articles

Gaming Certiorari

Aaron L. Nielson & Paul Stancil

Just how “supreme” is the Supreme Court? By most accounts, the Supreme Court sits atop of the nation’s judicial hierarchy and—at least among judges—has the last word on what the law means. Yet this conventional wisdom overlooks something important: the Supreme Court’s ability to “say what the law is” is limited both by the cases presented to it and the manner of their presentation. This means that the Supreme Court’s supremacy in a sense depends on how lower courts tee cases up for the Justices, which in turns means that lower court judges—acting strategically—can influence which cases the Supreme Court decides. By understanding how the certiorari process works, lower court judges can reverse engineer their decisions to make certiorari more or less attractive for the Justices. It is more difficult, for example, for the Justices to review decisions with cursory analysis, fact-bound rationales, or alternative holdings, and these or similar techniques are often available to a lower court seeking to avoid the Supreme Court’s attention.

Race in Contract Law

Dylan C. Penningroth

Modern contract law is rife with ideas about race and slavery and cases involving African Americans, but that presence is very hard to see. This Article recovers a hidden history of race in contract law, from its formative era in the 1870s, through the Realist critiques of the early 1900s to the diverse intellectual movements of the 1970s and 80s. Moving beyond recent accounts of “erasure,” and complementing Critical Race Theorists’ insights about law’s role in constructing, naturalizing, and justifying racial inequality, the Article offers a historically rich account of when, where, and why legal professionals have highlighted race in contract law.

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Disenfranchisement, Democracy, and Incarceration: A Legislative End to Felony Disenfranchisement in United States Prisons

Teddy Okechukwu

“I believe that everyone, and I mean everyone, deserves their right [to vote].” Antonio Lancaster, voting for the first time in the November 2020 election, has been incarcerated since 2003 following an armed robbery conviction. At age nineteen, he lost his right to vote before he was ever able to use it. Then, Lancaster became one the first Washington D.C. residents to cast an absentee ballot while incarcerated following the July 2020 passage of emergency criminal justice reform legislation. This legislation ended the practice of felony disenfranchisement—the practice of barring an individual who has been convicted of a felony from casting a vote in political elections — in the District of Columbia. Because D.C. has no federal prison, residents convicted of felonies are sent to federal prisons across the country. Lancaster, currently serving his sentence in a Kansas prison, noted that fellow inmates are jealous of his reinstated right to vote: “When we talk about [voting], they’re like, ‘You don’t know how lucky you are.’”

Unknown Unknowns: Why We Need More Information About How the Government Stifles the Right to Receive Information from Foreigners Online

Apratim Vidyarthi

The First Amendment right to receive information ensures that where speakers are free to speak, listeners receive their speech. In theory, this right has been enshrined through doctrine, and is critical in protecting the First Amendment’s goals of truth- seeking, self-governance, and self-realization. In practice, with respect to foreign speech online, the right to receive is not realized, impacting the First Amendment’s goals. Courts have repeatedly struck down right to receive claims because of inadequate standing. The government also cooperates with technology companies to take down (foreign) content and monitor (foreign) speakers, which prevents Americans from seeing information sent their way, both directly and through speaker self-censorship. The government’s foreign policy moves in banning apps and pressuring technology companies to remove adversarial leaders also impact this right. These moves mean that listeners do not know what they do not know.