Volume 169

Essays

One of the most anticipated decisions of this term will be the three consolidated cases pending in front of the Supreme Court, Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, which collectively present the question of whether Title VII’s prohibition on discrimination “because of sex” includes discrimination against gay, lesbian, and transgender employees.
Fragility
Whoever said pandemics were equalizers doesn’t know a thing about disability legal history. It does not take much of a pretext to rollback disability rights. This is because disability rights laws, despite enumerated principles of equal opportunity and civil rights, have always been viewed as “nice to do” and not “must do.” Simply put, society continues to misunderstand disability—what it means, who the category includes or excludes, its relationship to impairment, its valence and construction as an identity. Moral and religious-tinged frames have trumped the perception of disability as a protected class akin to race, gender, or national origin. This view explains Congress’s intent that the Americans with Disabilities Act (ADA) play not only a remedial role for disability discrimination ex post, but also a proactive, ex ante role in upending problematic social norms that treat disability and incapacity as synonymous. Similarly, the perception of disability as a different kind of civil right helps explain the Supreme Court’s interpretive missteps in the infancy and adolescence of the ADA and Congress’s direct reproach and redirection of the Court in the ADA Amendments Act eighteen years later.
Thanksgiving Parade Silver Spring 514 Police Lights
The first few months of the COVID-19 outbreak in the United States saw the rise of a troubling sort of behavior: people would cough or spit on people or otherwise threaten to spread the COVID-19 virus, resulting in panic and sometimes thousands of dollars in damages to businesses. Those who have been caught have been charged under so-called “terroristic threat” statutes. But what is a terroristic threat, and is it an appropriate charge in these cases? Surprisingly little has been written about these statutes despite their long history and frequent use by states. Our Essay is one of the first to look systematically at these statutes, and we do so in light of the rash of these charges during the ongoing pandemic.
Mental_Disorder_Silhouette
Mental illness is not a crime. That fundamental proposition is threatened by the Supreme Court’s recent decision in Kahler v. Kansas, which allows states to abolish the insanity defense. This Essay presents three examples of absurd and discriminatory results that could follow. But the conclusion is a positive one: constitutional constraints not considered in Kahler—the Equal Protection Clause and the Eighth Amendment—should prevent the worst results from materializing.
Fauci speaks to the White House press corps on COVID-19 in April 2020, watched by President Donald Trump (left) and Vice President Mike Pence (right)
The ambitious policy goals we set for our governments demand that they develop a great deal of expertise. We want drinking water to be clean and prescription drugs to be safe, but we don’t expect legislators themselves to spend years learning about water chemistry and pharmacology before they legislate. It is unrealistic to expect members of a popularly elected body to have the breadth and depth of knowledge needed to address emergent social problems in a timely and effective way. Instead, we trust that bodies acting on the legislature’s behalf, like administrative agencies, have the technical knowledge—including knowledge of chemistry, engineering, economics, and law—necessary to accomplish the goals the legislature entrusts to them.
Equal Justice Under Law
In the recent case of Ramos v. Louisiana, the U.S. Supreme Court held that the “Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.” A majority of the Justices agreed on that much. A majority also agreed that the racist history of the state laws allowing for nonunanimous jury verdicts was important to take into account and weighed against the constitutionality of those laws. But a majority could not agree on underlying questions about the nature and power of precedent, and the Justices took the case as an opportunity to advance their own distinct views on the topic. The decision showcases a convoluted debate about whether, when, and how past cases are binding on new ones. On these trans- substantive questions, the Court is radically fractured, offering up a cacophony of five different conceptions of precedent, with no more than three Justices agreeing on any one of them.
The Roberts Court
The Chief Justice of the United States possesses significant power. His position as the senior-most Justice on the U.S. Supreme Court allows him to assign opinions to other Justices and to coordinate scheduling the Court’s cases for argument. And after Justice Kennedy retired in June 2018, Chief Justice Roberts was the median Justice on the Court, whose vote often determined the outcome in a case. Even after Justice Barrett’s confirmation changed that state of affairs, the Chief remains an important Justice to watch.
capitol
It is a moment of racial reckoning. It is not the first, it will not be the last, and it assures no restitution. But it is, nonetheless, a moment. As befits such moments, assorted conversations are occurring about the significance of race in American life and how to meaningfully improve Black lives. These conversations—debates might be the more accurate noun—have inspired calls for recompense and broad structural reforms. The Black Lives Matter movement, for example, advocates for reparations, police defunding, education reform, and a restructured political economy.
Reconstruction
The Civil War ended in the spring of 1865 and attention promptly turned to escalating the process of reconstructing the South. Reconstruction, which involved dismantling the planter-dominated slaveocracies and turning these political communities into multiracial, egalitarian societies centered around civil and political rights, fundamentally changed the nature of our system of federalism, as well as the universe of rights to which individuals were now entitled.
The Breaking Point Project
In order for something to be built, something has to be destroyed, and this jail's administration has to be destroyed. We're too far along as a society to continue to be submerged in the wrongs and the corruptions, instead of to stand for what's right. . . . I wish people understood that jail isn't really what they think it is; it's a façade. This place isn't meant to help you get better. . . .
Building that houses both the Legislative and Judicial Branch of the Muscogee (Creek) Nation
"Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law." So reads McGirt v. Oklahoma, the most important reservation boundary case in the history of the Supreme Court, But before McGirt, courts often rewarded unlawful acts with reservation diminishment. This Essay first places McGirt in the context of the Muscogee (Creek) Nation's century-long fight to restore sovereign rights illegally denied after allotment, and the even longer fight by the Muskogee Nation and others to survive the trail of broken treaty promises. It then corrects the false assumptions about the past and present of reservation boundaries that led the Court to turn lawbreaking into law.
Many dollar banknotes.
Recently, “probate lenders” have started to advance cash to heirs and beneficiaries in return for part of their interest in a pending decedent’s estate. This Essay advances our understanding of this phenomenon by analyzing an original dataset of 1,119 probate matters from San Francisco. Capitalizing on a California statute that requires probate lenders to file their contracts in the court record, the Essay offers insights about the contours of the industry, why people borrow against their inheritances, and the fairness of these transactions. The Essay concludes that probate lending raises serious consumer protection concerns.
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