Volume 55 (2023) Issue 2 (Summer)
By Nicholas Almendares & Dimitri Landa. The “hard cases” for the law relating to accomplices deal with the definition of what counts as aiding and abetting a crime. A retailer might sell a murder weapon in the ordinary course of business, while an accomplice might do nothing because their help was simply not needed. How do we distinguish between these cases? The Capitol Riot is a striking example of this sort of hard case because there were so many people involved in so many different and ambiguous ways. Outside of the conceptually easy cases of someone caught on camera making off with property or attacking officers, who should be found guilty of what? A lack of a rubric for answering these questions makes collective crimes like the Capitol Riot especially challenging…
By Katie Eyer. In 1974, Geduldig v. Aiello held that pregnancy discrimination is not facially sex discrimination. Only four years later, Congress repudiated Geduldig in the statutory context in the Pregnancy Discrimination Act of 1978. For decades, Geduldig remained largely moribund, as the vast majority of pregnancy cases were brought pursuant to Title VII—and as the courts increasingly recognized that pregnancy discrimination implicated gender stereotypes (and thus sex discrimination) even in the Equal Protection context.But now, close to five decades later, opponents of transgender equality are trying to give the decision new life. Faced with the prospect of defending government laws and policies targeting “sex changes,” “gender dysphoria,” and more, such opponents have relied on Geduldig to argue that such policies are not facially discriminatory on the basis of sex or…
By Joanna Jandali. In a tiny fishing village along the Kutch coastline of India, families wake up to ash falling from the sky. Foul smells loom in dark clouds over the settlements, while chemicals and excess salts taint local sources of drinking water. Abscesses and boils paint the bodies of children and respiratory illnesses like asthma afflict the majority of residents. It was not always like this in Mundra, a port city within India’s Gujarat state. Wild animals used to run free among the forests and grazing lands. The water was clean, the air was pure, and the marine life was abundant. For centuries, thousands of Wagher families, a Muslim minority in India, would migrate yearly from the inland villages to the sandy Kutch gulf to begin eight months of…
By Ashton P. Jones-Doherty. Burwell v. Hobby Lobby is a misunderstood case. Since the decision in 2014, scholars have split into two camps, debating Hobby Lobby’s religious liberty concerns. One camp argues Hobby Lobby unconstitutionally allows corporations the right to enact religiously motivated policies where the corporate purpose is purely secular, whereas the other camp argues Hobby Lobby simply affirms an ownership’s right to control the corporation pursuant to their religious interests without government intervention. Both camps miss Hobby Lobby’s underlying reasoning, debating the religious liberty interests while ignoring the case’s constitutional affirmation of corporate sovereignty. Full Article.
By Tamara Kuennen. The “Power and Control Wheel” (“the Wheel”) is an iconic image in the anti-gender violence field. On a single vivid page, it captures multiple layers of intimate partner abuse. In the Wheel’s hub are the words “power and control,” the fundamental motivation of an abusive partner. Eight spokes emanate from the center, each representing a tactic of abuse designed to accomplish that goal, such as “coercion and threats” and “intimidation.” The rim of the wheel identifies “physical” and “sexual” violence as the actions holding together and fortifying the tactics of an abusive partner’s control.The Wheel sprung from activists’ focus group interviews with two hundred “battered women,” conducted in the early 1980s.4 First printed in a modest spiral bound manual with cover art drawn by a volunteer, the Wheel…
By Jake Linford, Justin Sevier & Allyson Willis. Trademark law protects famous marks from dilution by tarnishment, defined by statute as use likely to “harm the reputation of the famous mark.” Tarnishing uses are typically those that connect a mark with disreputable goods or topics, like sex or drugs. Mark owners worry that consumers will not purchase products connected with sexually explicit or drug-related materials, and courts often presume the same. If those associations likely cause consumers to withhold custom or dissipate goodwill consumers have invested in the mark, anti-tarnishment protection might be justified. But if that harm is more mythic than real, the law penalizing tarnishing use of trademarks may be ripe for judicial skepticism or congressional reevaluation.Indeed, constitutional invalidation might even be on the table. In a series of…
By Brian Soucek. Universities have been put in an impossible situation. They are liable under nondiscrimination laws if they allow hostile speech to interfere with someone’s education, but they are increasingly said to be liable under the Free Speech Clause if they do anything to stop speech before that point. Put simply, universities are liable for acting until the moment when they are liable for not having acted. This conundrum—what this Article calls the Double Liability Dilemma— is the result of remarkably successful litigation brought in courts across the country by a new, conservative free-speech organization called Speech First. Three courts of appeals, with a fourth perhaps soon to come, have recently enjoined universities from enforcing their harassment policies. These schools now find themselves unable to act to counteract hostile…
By Nicholas A. Traver. Are you fatigued, lethargic, or forgetful? Do you find it difficult to lose weight? Would you like to reduce your odds of cancer or even reverse the signs of aging? Considering the variety of common ailments many face every day, how empowered would you feel if you could address these, all on your own, with products widely available off the shelf? Would you take a magic pill, powder, or liquid that intimated quick relief? “Wellness culture” is thriving, and chances are more than half of the readers of this Comment take at least one dietary supplement regularly. If this includes you, consider the following question: Do you really know what’s in your dietary supplement? Full Article.
