Blog

Private Right of Inaction: The Decades-Long Struggle To Enforce the Church Amendments

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Sarah L. Betz. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has reinvigorated debates over the role of conscience in healthcare. Conscience plays a pivotal role in healthcare, as the Hippocratic Oath that physicians take upon graduating medical school instructs them to “do no harm.” Abortion and other controversial medical practices have transformed this instruction to “do no harm” into a policy task fit for a legislator. What one views as “harm” in the context of abortion is largely dependent on that person’s subjective beliefs regarding abortion. Full Article
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Rethinking Accomplice Liability

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Charles F. Capps. The basic premise of accomplice liability—so foundational that it has been described as true “[b]y definition”—is that the accomplice is liable for the conduct of the principal. Accordingly, scholars and lawmakers generally approach the project of fashioning liability rules for accomplices as a search for conditions under which the law is justified in punishing one person for the conduct of another.The search has yielded considerable frustration and little success. Scholars and lawmakers are “notoriously puzzled” by what mens rea makes someone responsible for another person’s conduct. They disagree sharply over whether someone should need to make a causal contribution to another person’s conduct to incur liability for it. And they debate the extent to which a person’s complicity in a crime can justify punishing the person for…
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Tribes and Trilateral Federalism: A Study of Criminal Jurisdiction

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Alexandra Fay. In 1789, the people of thirteen young American states defined a new sovereign. By ratifying the Constitution, the citizens of the states formed a national government to reign supreme over the United States of America. The two preexisting sovereigns of this American territory—states and tribes— would ultimately bow before the supremacy of the national government. The states formally accepted their subordination through ratification conventions. And they have jealously guarded the remaining attributes of their independent sovereignty throughout the ensuing centuries. In contrast, tribes and their citizens were absent from the drafting convention and ratification process. America’s Native nations were subjected to subordination by treaties and conquest. Full Article
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The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By David B. Froomkin & Eric Eisner.The Fourteenth Amendment is a gift that keeps on giving. In the aftermath of the January 6, 2021 attack on the U.S. Capitol, scholars were quick to observe that Section 3 of the Fourteenth Amendment offered potential remedies for a nation seeking to bar access to federal power to those who had sought to overthrow the federal government. Litigants have achieved some success in invoking Section 3 to challenge the eligibility of aspirants to office. Section 2 of the Fourteenth Amendment also has new and powerful relevance in an era of presidential election subversion. Indeed, Section 2, we will argue, imposes stiff penalties on states that deny their citizens the right to participate in elections for President. Full Article
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Multistate Failure: Advocating for an Affirmative Defense for Sex-Trafficking Victims in Line with Feminist Legal Reasoning

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Katharine Greer. Chrystul Kizer entered Gary, Indiana’s junior high performing arts academy with a dream of becoming a violinist.  She practiced all hours of the day trying to master music by composers like Beethoven. She was a “burgeoning artist” and defined herself by her music. However, this dream began to unravel when her mom’s boyfriend became violent. His abuse became too much for the family and forced them to move out of town to Milwaukee. Unable to find work or shelter, Chrystul’s family stayed at a Salvation Army shelter for months. In Milwaukee, Chrystul started dating Delane Nelson. Unfortunately, Delane was abusive, and they spent many days fighting. While Chrystul’s mom eventually got a job at Denny’s, Chrystul was still unable to pay for school supplies or food. Her friend…
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The Canon of Natural Law Avoidance

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By William Harren. The relationship between natural law and positive law represents one of the oldest unresolved questions in American jurisprudence. When Thomas Jefferson wrote, “[w]e hold these truths to be self-evident, that all men are created equal,” he invoked natural law principles to establish the United States’ legitimacy. Yet the Constitution itself has little to say about natural law. Judges, lawyers, and legal scholars—unsure what to make of this discrepancy—spent much of the nation’s first hundred years debating these questions: Does natural law supersede the Constitution? Does the Constitution override natural law? Or does the Constitution somehow incorporate natural law into positive law?While discussion of these questions declined in the twentieth century, it is unclear whether the debate fully resolved. It’s obvious that references to “the natural ordering of reason”…
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Co-Authoring with an AI? Ethical Dilemmas and Artificial Intelligence

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Hadar Y. Jabotinsky & Roee Sarel. Artificial Intelligence (“AI”) is rapidly advancing, particularly in the area of generative AI—a technology capable of producing new and rich content in response to human prompts. Generative AI systems have been causing quite a commotion in the legal sphere: systems that generate visual art, such as Stable Diffusion, Dall-E-2, and Midjourney, are currently facing major copyright infringement lawsuits, blaming their algorithms of plagiarism. Similar lawsuits have also been filed with respect to systems that generate computer code. Full Article
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The Proactive Process: An Empirical Study of Disparities in Workplace Accommodations

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Heidi H. Liu. Recent legislation and caselaw have imposed an affirmative obligation on employers to provide employees with workplace accommodations. Whether someone receives an accommodation, however, often first depends on whether they ask. And asking for accommodations can be fraught. Employees may fear stigma or be uncertain about navigating employer- specific unwritten rules and procedures. Although scholars have begun to argue that these procedures are unreasonably onerous, we know little about the extent to which people ask for and are granted accommodations.This Article addresses this empirical gap. I use newly released data from the Census Bureau, alongside additional data from the Department of Labor, to analyze demographic disparities in workplace accommodations. My original study is one of the first nationally representative studies to do so and the first-ever use of…
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American Exceptionalism And/In Affirmative Action

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Lucy Williams.In 2014, a nonprofit group called Students for Fair Admissions (“SFFA”) filed two lawsuits challenging the use of race in university admissions. In one suit, against Harvard College, SFFA alleged that Harvard’s admission policies violate Title VI of the Civil Rights Act by favoring white, Black, and Hispanic applicants over similarly qualified Asian American applicants. In the other, against the University of North Carolina (“UNC”), the group alleged that UNC’s race-conscious admissions policies violate the Fourteenth Amendment’s Equal Protection Clause. In both cases, SFFA urged that the challenged admissions practices did not satisfy strict scrutiny, the standard for race-based classifications articulated in Richmond v. J.A. Croson Co. and Adarand Constructors, Inc. v. Peña. SFFA also requested that the courts overrule Grutter v. Bollinger—a 2003 case which held that student…
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Resolving Equity’s Erie Problem

2024, Current Issue, Print, Volume 56 (2024) Issue 1 (Spring)
By Andrea Olson.It is an open secret that equity has an Erie problem. In 1945, the Supreme Court insisted that federal courts sitting in diversity must apply certain general equitable principles when faced with suits seeking equitable relief, even for state law claims and even in the face of contradictory state law. At first glance, this proposition appears to run headfirst against Erie ’s notorious instruction that “[t]here is no federal general common law.” Although distinct from the forbidden general commercial law that Erie declared unconstitutional as federal common law, in many ways these equitable principles—like the rule that equitable remedies are unavailable when legal remedies are adequate—seem to exist only “by common practice and consent among a number of sovereigns.”This Equity-Erie problem exists and persists in large part because…
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