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.
Dreamers and the FDA: Article III Standing in Immigration Cases after FDA v. Alliance
Madeline Hutchison, University of Nebraska College of Law
States historically challenge federal executive policy through litigation. One recent example is Texas’ challenge to the Deferred Action for Childhood Arrivals (“DACA”) policy for the second time in two years. The validity of DACA was challenged in the Fifth Circuit due to immigration concerns by Texas, where the court ultimately held Texas had Article III standing to sue. However other courts, and the Supreme Court in particular, have begun closing the door on plaintiffs that demonstrate only broad injuries related to government regulations and policies. The June 2024 Supreme Court ruling in FDA v. Alliance may open the door for the Court to find that Texas does not have standing to challenge the second iteration of DACA if the decision of the Fifth Circuit is appealed.
This Comment examines Article III standing requirements as applied by the Supreme Court up to and including Alliance, the history of the second DACA suit out of Texas and the resulting Fifth Circuit’s ruling in Texas v. United States. The Comment argues that, despite the Fifth Circuit’s ruling, the Supreme Court may find that Texas does not have standing to sue. The Comment focuses specifically on the injuryin-fact and causation requirements of Article III standing as they apply to a potential appeal of Texas v. United States given the ruling in Alliance.
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.