Recent Print Articles
When One Door Closes: Legal Education and Racial Justice after Students for Fair Admissions
Michael I. Meyerson, University of Baltimore School of Law
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court ruled that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibited colleges and universities from using race as a factor in admissions decisions. Many have feared that this ruling portends the end of racial diversity in higher education. Law schools, however, can choose to treat this decision as creating a fresh opportunity to pursue racial justice in a comprehensive and meaningful way. Most of the early scholarly writing on Students for Fair Admissions focused on either its shortcomings or the narrow issue of academic admissions policies. These initial analyses did not examine two critical facts. First, prior to the Court’s decision, most law school practices were far from ideal and frequently reinforced structural racism. Second, law schools can use Students for Fair Admissions as an impetus for making changes to those harmful practices.
This Article demonstrates how law schools can take full advantage of that opportunity. First, it explains how the Court’s decision in Students for Fair Admissions preserves law schools’ ability to pursue racial justice, especially with schools no longer needing to restrict their actions to meet the Court’s previous constrained diversity model. Next, this Article details the need for changing the ways in which most law schools currently contribute to the legal profession’s status as America’s “whitest profession.” Finally, it provides a wide range of actions, in areas including student recruitment, admissions policies, law school culture, faculty hiring, bar exams, U.S. News rankings, and law firm practices, that law schools can undertake to advance racial justice in a post-Students for Fair Admissions world.
Adapting Gingles & Retaining Voter Power: Applying the VRA to State Judicial Retention Elections
Jake Mazeitis
State supreme courts play a crucial yet overlooked role in our nation’s judiciary. They are also predominantly White. In states with judicial elections, this racial homogeneity suggests that voters of color may not have an equal opportunity to “elect representatives of their choice” as required by the Voting Rights Act. While federal courts frequently apply the VRA to judicial elections resembling legislative and executive contests, those same tribunals have failed to protect voters of color in non-competitive judicial retention elections. This failure is due in part to Thornburg v. Gingles, which established three threshold requirements for plaintiffs in vote dilution cases. These factors, which focus on a given plaintiff’s ability to craft a majority-minority district within the relevant multi-member elected body, do little to aid courts in judicial retention election cases because Gingles presumes the existence of geographic districts and a choice between candidates. Judicial retention elections possess neither of those qualities. Despite Gingles’ inapplicability, lower federal courts have often mechanically applied the Gingles factors in judicial retention cases, creating insurmountable hurdles for plaintiffs bringing claims. In contravention of basic legal principles, these decisions declare that there is a right, but no associated remedy. This Article advances a new reading of Gingles, a reading that both aligns with Supreme Court caselaw and ensures that voters of color in judicial retention elections can obtain meaningful relief when denied the ability to select a representative of their choice.
Wrongful Birth after Dobbs and the Limits of Tort Law in Areas of Dissensus
E. Travis Ramey, University of Alabama School of Law
As the abortion debate has raged in this country, a secondary debate over wrongful birth has accompanied it. Wrongful birth is a medical malpractice-like claim brought by parents who allege that a medical provider negligently failed to provide accurate information about the fetus and that had they received accurate information they would have terminated the pregnancy. Courts rejected the tort theory until Roe v. Wade was decided. Post-Roe, courts were heavily divided over whether to recognize the claim and what damages were recoverable. Now, after Dobbs v. Jackson Women’s Health Organization, the continued viability of wrongful birth is in question, and the already chaotic nature of wrongful birth has become even more complex.
This Article examines wrongful birth and its criticisms before examining the effect Dobbs is likely to have on wrongful birth jurisprudence. It concludes that wrongful birth will remain unchanged in jurisdictions that do not restrict abortion. And it suggests analyses that might permit wrongful birth to remain viable in jurisdictions that ban abortion, though doing so concededly adds to the dissensus surrounding wrongful birth.
Most importantly, the Article examines why wrongful birth has resisted judicial consensus. Instead of simply blaming the heated abortion debate, it concludes that social dissensus about multiple issues makes regulating wrongful birth through tort law inappropriate. Recognizing and accepting the limitations of tort law that wrongful birth exposes is important given that other looming technological developments—such as artificial intelligence and transhumanist ideas to expand human capabilities—promise to raise again and again the same dissensus problem that wrongful birth highlights.
Incentivizing Accelerated Federal Student Loan Repayment, a Small Change
Steve Lydick, Erickson Sederstrom, PC, LLO, Omaha, Nebraska
This Comment suggests incentivizing accelerated repayment as a practical solution to provide relief to stakeholders in the federal student loan program. By using its existing legal authority, the Department of Education can permit borrowers to satisfy their loan obligations through partial overpayments. This strategy allows borrowers to play a more active role in expediting their loan repayment, benefiting both the borrowers and the Department.
The Unsettled State of Corporate General Personal Jurisdiction
Anthony J. Gaughan
This Article examines Mallory’s unsettling ramifications for corporate general personal jurisdiction. It proceeds in four parts. Part I explains the rationale behind the Court’s ruling. Part II examines the judicial uncertainty and inconsistent rulings that plagued corporate general personal jurisdiction before Goodyear. Part III argues that the Goodyear trilogy brought long overdue stability, consistency, and predictability to corporate general jurisdiction. When combined with the Court’s recent clarification of specific jurisdiction’s scope, Goodyear and its companion cases placed plaintiffs and defendants on a level playing field. But the Mallory decision destroys that equilibrium and creates a new era of instability in corporate general jurisdiction. Part IV warns of the consequences if the Court fails to salvage at least some of the stability achieved by the Goodyear trilogy. As Justice Alito noted in his concurring opinion in Mallory, there is a strong case to be made that general-jurisdiction-by-registration statutes violate the Dormant Commerce Clause. At present, however, Mallory clears the way for legislatures to coerce foreign corporations to consent to all-purpose jurisdiction without running afoul of the Due Process Clause. Left unchecked, the ruling will give rise to a patchwork quilt of conflicting general jurisdiction rules and questionable choice-of-law determinations. Mallory may thus go down in history as the case that turned the clock back to the unsettled pre-Goodyear era of corporate general jurisdiction.
Neglected, Perplexing, Unpredictable: Remedies in International Commercial Arbitration
Charles H. Brower II
The Article concludes that the applicable substantive law and the parties’ prayers for relief are the two most important factors affecting the selection of remedies in international commercial arbitration. This perspective envisages that arbitrators will perform a narrower role than is often contemplated. But it also a perspective that increases predictability and channels the exercise of discretion on the single most important topic in international commercial arbitration.
Powerless Beings: Solitary Confinement of Humans and Nonhumans in America
Michael B. Mushlin & David N. Cassuto
This Article uses a comparative format to examine the moral, penological, and scientific shortcomings of solitary confinement across species. Part I describes how solitary confinement is used in human and nonhuman settings and shows the deep wounds that it inflicts in both. Part II examines why the legal structures under which solitary confinement is imposed (on humans and nonhumans) offer inadequate protections from its depredations. Part III argues that incarcerated beings have no legal protections because they are powerless and invisible. In Part IV, the authors write individually. The author with expertise in prison law (Mushlin) describes how solitary confinement would end in penal facilities if prisoners were empowered and their rights protected. Next, the author with expertise in animal law (Cassuto) explains why solitary confinement for animals in zoos, aquariums, and laboratories should and could be abolished. The authors conclude with a call to empower creatures subjected to solitary confinement. If all vulnerable beings are adequately protected, the unnecessary suffering inflicted by solitary confinement will finally end.
What Roosevelt Did to Brown v. Board of Education, or Race and Court Packing
Jill M. Fraley
In the decades when Roosevelt’s court packing attempt remained in lived memory, Brown was never going to fully succeed in the South, where it did not have the majority support of the population. The Court simply did not have the power to demand public acquiescence or sway public opinion. This understanding of the Court’s power matters today, as both court packing and court reforms are brewing in American politics. Any future changes must be done with a nuanced understanding of how the public will view the Court and what precedents we set that will be mirrored at the state level.
Shared Housing as a Missing Middle Solution for Rural Communities
Alison Lintal
This Article demonstrates that shared housing, particularly among seniors, can be a successful model for providing affordable housing in rural areas. It will identify and examine the legal impediments to implementing shared housing programs which include: (1) failure to meet building code and internal density requirements; (2) antiquated definitions of family and cohabitation under zoning laws with a need for statutory permission for unrelated people desiring to live together; (3) restrictive occupancy codes; (4) property and income tax consequences as well as impact on public benefits eligibility; (5) lack of traditional landlord tenant protections for informal shared housing arrangements; and (6) limited fair housing protections for shared housing arrangements. In addition, funding and financing shared housing under current conventional and government financing structures presents challenges.
Rising Tides, Rising Premiums
Kevin Freudenberg
Insuring flood-prone properties is a complex insurance problem. Attempts by the U.S. federal government to step in and correct perceived private market failures have often exacerbated the problem by artificially subsidizing building and rebuilding activity in low-lying areas. This article describes the fundamental problems inherent in the design of the National Flood Insurance Program (NFIP) by analyzing the program through the lens of the insurance concepts of moral hazard and adverse selection. It also provides a comparative view of flood insurance schemes globally, and suggests possible reforms.