Issue Archives

Agriculture systems are extremely susceptible to the consequences of climate change. Extreme weather events, changing temperature patterns, and invasive pests and weeds threaten our nationโ€™s crop yields and food security. U.S. agriculture is also a leading contributor to climate change, as industrial farming and land management practices emit around a third of nationwide greenhouse gases. Certain climate-friendly agriculture practices have the...

ASSESSING AFFIRMATIVE ACTIONโ€™S DIVERSITY RATIONALE

Adam Chilton, Justin Driver, Jonathan S. Masur & Kyle Rozema*

Ever since Justice Lewis Powellโ€™s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to โ€œless meritoriousโ€ applicants being selected. Critics on the left charge that diversity...

Issues relating to disability are undertheorized in the Supreme Courtโ€™s Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendmentโ€™s vast scope of police discretion...

COUNTERING GERRYMANDERED COURTS

Jed Handelsman Shugerman*

The key insight in Professor Miriam Seifterโ€™s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers...

Although antitrust scrutiny of โ€œbig techโ€ companies has increased drastically over the past decade, much of the national debate has concerned issues of monopolization and the Sherman Actโ€”the dominant federal antitrust statute. But with rapid developments in artificial intelligence and machine learning, algorithmic price fixing has become an increasingly pressing threat that the Sherman Act is ill-equipped to tackle. Under the current framework,...

Bostock v. Clayton County has been widely recognized as momentous for providing LGBTQ Americans with protection against workplace discrimination, helping to safeguard their economic wellbeing and dignity. But it also has the potential to impact sex discrimination jurisprudence even more broadly. This Note argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include...

For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no oneโ€”apart from the executive branch negotiatorsโ€”knows what these deals contain....

In Oregon v. Kennedy, the Supreme Court held that the Double Jeopardy Clause does not bar the reprosecution of a defendant in cases in which prosecutorial misconduct causes the defendant to move for a mistrial. The Court established only one exception to this rule: If the prosecutorโ€™s misconduct was intended to provoke the defendant into moving for a mistrial, the Double Jeopardy Clause bars the retrial of the defendant. The Kennedy...

This Article uncovers the intellectual foundations of presidential administration andโ€”on the basis of original archival research and new contextualizationโ€”grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws...

STATUTORY INTERPRETATION FROM THE OUTSIDE

Kevin Tobia,* Brian G. Slocum** & Victoria Nourse***

How should judges decide which linguistic canons to apply in interยญpreting statutes? One important answer looks to the inside of the legislaยญtive process: Follow the canons that lawmakers contemplate. A different answer, based on the โ€œordinary meaningโ€ doctrine, looks to the outside: Follow the canons that guide an ordinary personโ€™s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons โ€œfrom...