Recent Print Articles
Zigzagging Outer Space: The Legal Complexities of MegaConstellations
Alex S. Li, #TheSpaceBar®
The rapid rise of satellite mega-constellations is reshaping the “spacescape” of Low Earth Orbits (LEO). This Article explores the unprecedented challenges introduced by these vast networks and proposes a comprehensive governance framework to ensure their sustainable operations.
The Self-Erasure of the EEOC in Bostock v. Clayton County
Nicholas B. Mauer, U.S. District Court for the Eastern District of Missouri
This Article explores the EEOC’s part in the backstory of Bostock, theorizing what the EEOC could and should have done differently to justify consideration of its views. Interpreting Title VII, the EEOC used the “traditional tools of statutory construction” statutory text and judicial precedent. This Article argues that the EEOC should have also used methods of interpretation that capitalized on its unique capacities and role as an administrative agency, different from the capacities and role of federal courts. This Article also analyzes why the EEOC’s interpretations of Title VII received little public opposition from conservative members of Congress. While the EEOC did publicize its actions, this Article suggests ways that the EEOC could have further increased public attention to and deliberation about its interpretations. This Article concludes that an agency seeking to make the case that it deserves consideration of and deference to its interpretations of statutes should take actions and use methods of interpretation that emphasize the agency’s differences from courts. In short, agencies should act like agencies, not courts.
Reading Is Dead: Can Law Schools Make Lawyers from Non-Readers?
Elizabeth Ruiz Frost, University of Oregon School of Law
Reading is dead. While its death has been widely reported in popular media, this Article contributes to the conversation by connecting the death of reading to core lawyering skills, arguing that the way we teach in law schools must change to account for the loss. Reading fuels critical thinking skills, communication skills, general knowledge, and our ability to understand and empathize with people. Thus, a lifetime of reading builds the foundation for core lawyering skills. But what happens when law students spend their lifetime doing anything but reading? This Article will first explain, briefly, how reading has been taught in American schools and how our brains do the work of reading. Next, the Article explores the state of reading in the United States to prove what many of us suspect: people now read less and less well than recent generations. Finally, the Article analyzes all that is lost when we stop reading and connects those deficits to core lawyering skills. It then proposes modest suggestions that may make equally modest inroads to address reading deficits in law students.
The Jurisprudence of Statutory Interpretation: A Framework for the Logical Restraints of Legal Positivism and Textualism
K. A. Stenseng, Washington State Legislature & Gonzaga University School of Law
Since President Donald Trump’s first term in office, the Supreme Court has become increasingly dominated by justices who identify as textualists. In recent years, the Court’s environmental decisions (and the Court itself) have become the center of public scrutiny. As President Trump proceeds through his second term in office, how can legal experts and policymakers better understand the trajectory of the current court? Answering this question is vital as the legal community faces new questions surrounding the Rule of Law. This Article centers on recent Supreme Court case law, including the Court’s controversial Clean Water Act (“CWA”) decision in Sackett v. Environmental Protection Agency, to present a logical, normative approach to understanding statutory interpretation.
A Study of the Tap In Center Movement: How Collaboration in the Legal System Is Reducing the Negative Impact of Bench Warrants and Restoring Justice in Communities
Patrick C. Brayer, University of Missouri Kansas City School of Law
While many aspects of the criminal legal system have been criticized for the harm judicial institutions inflict on communities, a unique legal initiative is garnering praise from observers across the nation. What started as a local effort to help residents withdraw bench warrants during the COVID-19 Pandemic has blossomed into four independent legal service centers in three separate Midwest metropolitan areas called Tap In Centers. The primary mission of the Centers is the recalling of bench warrants issued when criminal defendants fail to appear for court or pay a fine; however, the needs of the individual and the community guide specific Center services. This Article explores a Tap In Center program that is incrementally restoring justice in communities by examining the unique collaboration that organized the program. The Article also explores the deep negative impact bench warrants have inflicted on both individuals and neighborhoods. Municipal and other low-level courts have used bench warrants to extract revenue from nonaffluent populations and control racialized residents. The Article views Tap In Centers through a lens of structural violence where courts use bench warrants as a tool of human submission.
A Judiciary without Trust?
Brandon J. Johnson, University of Nebraska College of Law
This Essay engages in a three stage inquiry. First, drawing on political theory and social psychology, it disentangles the concepts of trust, distrust, and trustworthiness, proposing a metric rooted in transparent reasoning, procedural fairness, and ethical rigor. Second, it applies that metric to the Court’s historical and contemporary record, demonstrating how signature failures—and the Court’s traditions of opacity, privilege, and self-aggrandizement—have produced a deep reservoir of suspicion among vulnerable communities. Finally, it confronts the self reinforcing nature of distrust and assesses proposed reforms: intellectual humility, public apologies for past harms, external ethics oversight, and greater daylight on the shadow docket. While each could cultivate genuine trustworthiness, the Court’s institutional culture renders such shifts improbable. The Essay thus reframes legitimacy debates, insisting that the path to restored confidence runs not through exhortations to “trust the Court” but through the Court’s willingness to commit to the work of demonstrating its own trustworthiness.
Democracy’s Fundamentals: Efficacy, Equality, and the Supreme Court
Jenny Breen, Syracuse University College of Law
When assessing courts in a democratic regime, we must begin by asking substantial questions about what it means for any democratic nation to allocate such important functions to an often unelected branch of government. Courts must fit within a democracy, not democracies within a judicial system.
This Essay identifies two fundamental predicates of democratic rule—efficacy and equality—and examines the decisions of the United States Supreme Court in light of both of those key categories, finding that its recent decisions have been consistently undermining both. These observations on the United States Supreme Court are prefaced by overviews of the scholarly literature regarding the role of courts in a variety of regime types, including nations in the process of democratic erosion like the United States, as well as consolidated regimes of both the authoritarian and democratic varieties.
The Rise and Fall of Public Confidence in Higher Education
Anthony J. Gaughan, Drake University Law School
During the 20th century, college came to be viewed as an essential credential on the path to middle-class prosperity. But in the 21st century, a growing percentage of Americans have come to doubt the value of higher education. Consequently, the future for colleges and universities has never been more uncertain. This Article explores the rise and decline of public confidence in higher education. Part One explores how higher education gained the confidence of the American people. In the 1800s, the idea that higher education would uplift the country became an article of national faith. The 20th century saw further gains as both federal financial support for higher education and college enrollment reached unprecedented levels. As the 21st century began, higher education seemed to have unstoppable momentum. American universities dominated global rankings and attracted hundreds of thousands of foreign students.
Part Two explains why the public lost confidence in higher education in the 21st century. The public’s growing disenchantment stems from the perception that colleges and universities push political agendas, fail to teach relevant skills, and leave students with heavy debt loads. Amid growing public criticism, colleges and universities have experienced major enrollment declines in the 2010s and 2020s.
Part Three concludes by proposing reforms to revitalize higher education’s standing in public opinion. The first critical reform is to diversify the ideological make-up of colleges and universities. The second is for colleges to teach students to accept, respect, and even celebrate differences of opinion. The third is for higher education to make attracting and retaining lower-income students a priority.
Lessons from the Vieth Dissents: Partisan Gerrymandering, Party Construction, and the Challenge of Judicial Intervention
Jacob Eisler, Florida State University College of Law
This Article uses the Vieth dissents to demonstrate the intrinsic complexity of party governance and the subsequent challenges for robust judicial intervention. It first reconstructs the role of parties in governance and law (Part I) and then reviews the reception of parties in legal scholarship (Part II). These understandings have been marked by significant variation in the desirability of parties as participants in democratic governance. Part III offers a detailed doctrinal construction of the Supreme Court’s 40-year foray into the partisan gerrymandering challenge. Part IV observes how the Vieth dissents themselves reveal the foundational difficulty with innovative judicial intervention: partisan gerrymandering is one of the (less savory) practices by which party composition is dynamically constructed. Part V observes other available mechanisms for judicial intervention in party politics that enhance rank-and-file participation, rather than constrain party practice.
Not the “Mere Creature” of Big Tech: The Constitutionality of Parental Consent Laws for Minors’ Social Media Accounts
Kat Turco, University of Nebraska College of Law
A growing number of states have passed laws requiring social media platforms to obtain parental consent before granting accounts to minors to combat rising mental health issues, cyberbullying, and screen addiction. Although well-intentioned, every such law has been enjoined in the lower courts, and the Supreme Court has yet to address whether laws requiring parental consent for minors’ social‑media accounts violate the First Amendment. This Comment argues that lower courts have miscast such statutes as content‑based speech restrictions requiring strict scrutiny under Brown v. Entertainment Merchants’ Association. Parental consent laws differ from the content-based statute at issue in Brown. Moreover, when analyzed at the function level, parental consent laws regulate non-expressive functions, not speech itself. Therefore, parental consent laws should face intermediate scrutiny.
This Comment explores how parental consent laws pass constitutional muster while providing parents with a tool to protect minors online. Part II surveys several parental consent statutes and their mechanics. Part III reviews the existing First Amendment precedent in minors’, parents’, and platforms’ speech rights and examines the recent district‑court decisions on parental consent statutes. Part IV explains how the Supreme Court could distinguish parental consent laws from Brown v. Entertainment Merchants’ Association and uphold parental consent laws as content-neutral by analyzing them at the function level. Lastly, Part V outlines the First Amendment considerations legislatures should consider when drafting a parental consent law.