Absolutely Unnecessary Immunity
Eileen Prescott, Director for the Accountable Prosecutor Project, Wake Forest University School of Law
Prosecutors, like judges, cannot be sued for their professional misconduct in most jurisdictions. As long as their actions are sufficiently tied to their job duties, their actual malice does not matter, even if they had demonstrable malice—a prosecutor could bring baseless charges against an ex-spouse specifically to harass them, with absolute immunity from suit. This immunity allows prosecutors to abuse the power of their office without civil recourse. In theory, absolute immunity aims to protect the office by resolving cases simply and quickly, but in reality, courts get bogged down litigating whether a prosecutor’s specific action was sufficiently tied to their role. This disconnect is illustrated by the existence of at least seven federal circuit splits about the exact contours of absolute immunity.
Although most lawsuits brought against prosecutors come through federal courts, the criminal system itself is best understood as a network of state and local policies. Different states developed different approaches to prosecutorial immunity over the course of more than a hundred years, creating something like a natural experiment that contradicts federal assumptions. I compiled a first-of-its-kind dataset of 353 civil suits in state courts against prosecutors for misconduct, and reached three important conclusions.
Tax Compliance, Social Norms, and Influencers
James Alm, Jay A. Soled & Kathleen DeLaney Thomas
While attaining perfect tax compliance is unachievable, more can and must be done. In the past, the country has relied primarily on a traditional system of sticks (e.g., audits and penalties) and carrots (e.g., refunds and whistleblower awards) to help narrow the “tax gap,” or the difference between what taxpayers owe in taxes and what they actually pay. Now, in the social media era, Congress and the Internal Revenue Service (IRS) should look beyond these traditional enforcement mechanisms. To achieve an even higher voluntary compliance rate, this Article advocates for policymakers to invest greater resources to enhance the social norm related to tax compliance. While scholars have long suggested that social norms play a role in tax compliance, this Article suggests a revolutionary approach, one that attempts to foster a social norm of compliance by employing the use of social media influencers.
The internet and other electronic media have revolutionized and amplified the stunning impact that influencers can have. Virtually everyone, particularly the younger generation, is keenly aware of the dramatic impact that influencers can have in shaping social norms. Thus, now is the time for Congress and the IRS to capitalize on this power by strategically employing social media influencers. A wellcrafted influencer campaign could educate taxpayers on how to fulfill their tax obligations, remind taxpayers of the laudatory impact of the tax system, and foster a positive social norm of compliance. Such a change in compliance orientation could help policymakers narrow the tax gap, yielding billions of dollars of additional tax revenue without the need to raise tax rates.
Diversity Statements, Academic Freedom, and the First Amendment
Keith E. Whittington, David Boies Professor, Yale Law School
Diversity statements have become a common component of applications for faculty positions and student admission at universities across the country. They have also become politically controversial, with several states banning the use of such requirements at public universities. The use of diversity statements also raises difficult constitutional questions under the First Amendment at public universities and academic freedom questions at both public and private universities. Although there are versions of such statements that might pass constitutional muster, as commonly designed and implemented, the use of diversity statements likely violates both First Amendment and academic freedom principles. Indeed, diversity statement requirements for faculty hiring are inconsistent with multiple lines of constitutional doctrine.
Uncle Sam and the Sea: An Administrative Red Herring
Heather Harastis, J.D. Candidate, 2025, University of Nebraska College of Law
“The law must be stable and yet it cannot stand still.”
Compared to the Old Man and the Sea, the administrative state’s situation does not seem all that different. The idea of the administrative state has been around since the birth of civilization. There has always been a need for caretakers to protect the best interests of their people. While the administrative state is a testament of our society’s resilience and loyalty to the idea of one union providing for public good; it has become the Santiago. An administrative state is only as good as its output, and our current state cannot perform its desired function without the Manolin.
Who's Afraid of Little Old Me? The Record Industry: Protecting Creativity and Promoting Artists' Rights Through a Narrow Scope of 17 U.S.C. §§ 103 and 114 Rights for Derivative Works
Margaret Fouberg, J.D. Candidate, 2025, University of Nebraska College of Law
This Comment explores the growing conversation surrounding artist rights and music ownership, catalyzed by Taylor Swift’s public dispute with Big Machine Records. Swift’s efforts to reclaim her work have spotlighted the complexities of U.S. copyright law, particularly the distinct rights afforded to sound recordings versus musical compositions under the Sound Recording Act of 1971. By examining derivative works and their required standard of originality, this Comment argues that a narrow interpretation of copyright protections for derivative works, as outlined in 17 U.S.C. §§ 103 and 114, is essential for fostering creativity and safeguarding artists’ rights. Through an analysis of legislative history, judicial precedent, and the broader implications for originality, this paper underscores the importance of protecting artistry while balancing the rights of creators and producers.
Wife, Mother, Worst of the Worst: America's Death Penalty Schemes as Gendered and Arbitrary
Abby Slyter, J.D. Candidate, 2025, University of Nebraska College of Law
The legal landscape surrounding capital punishment in the United States has evolved significantly since its inception, and women's status on death row has not been left untouched by these developments. Following the Supreme Court's landmark decision in Furman v. Georgia, the constitutionality of the death penalty as it applies to women has faced increased scrutiny.
This Comment explores the history of capital punishment for women, the status of women on death row as of March 2024, and analyzes capital punishment sentencing as a gendered process through the Chivalry and Evil Woman Theories. An examination of Furman and subsequent cases shows that contemporary death penalty practices are often gendered, potentially rendering them arbitrary and capricious. While women on death row are not a monolith, this Comment highlights the gendered application of capital punishment in America and emphasizes the urgent need to address these issues, as women continue to be sentenced to death.
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.