Free Exercise and Substantial Burdens under Federal Law
Mark Strasser
I. Introduction
II. The Ever-Changing Free Exercise Jurisprudence ... A. Reynolds ... B. Modern Jurisprudence Suggesting No Exemptions Are Required ... C. The Jurisprudence Does an About-Face ... D. An Implicit Modification of the Jurisprudence? ... E. Back to Robust Protection? ... F. Tepid Protection?
III. The Congressional Response to the Court’s Free Exercise Jurisprudence ... A. RLUIPA ... B. RFRA ... C. The Circuits’ Quandary
IV. Conclusion
The Concept of Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in the Enforcement of Private Legal Arrangements
Farshad Ghodoosi
The doctrine of public policy is a channel through which public law enters private law and bars it from actualizing its normal legal consequences. Although public policy is an old doctrine in common law and other legal systems, it is not clear which aspects of public law can enter the arena of contract (private) law and make it unenforceable. The phrase public policy is used and pled in various national and international tribunals on a daily basis. Despite its importance, the literature surrounding the doctrine of public policy is extremely limited. This Article first briefly traces the genealogy and paradigm shifts of the doctrine of public policy in the history of common law. Subsequently, it scrutinizes the ramifications emanating from developments of legal theory as well as the emergence of the welfare state in transformation of the notion of public policy. It then explains the doctrine of public policy from the law and economics perspective and shows its shortcomings. In the last section, the Article argues that the concept of public policy is a not a single concept but consists of three distinct strands—public interest, public morality, public security—each with a separate pedigree and logic requiring a separate method for its analysis. The public interest category refers to instances where the public policy exception can be determined employing cost-benefit analysis by weighing the interests of private parties versus societal interest. The second strand, public morality, attempts to safeguard the communal values by allowing the judiciary to lend its enforcement apparatus to private legal arrangements that are injurious to common morality. Lastly, public security is structured around the exceptionalist logic of modern statehood, which aims to protect states’ survival interests. This Article argues that in instances where public morality and public security are seriously at stake, private law is subsumed by the mandate of public policy. However, in the majority of cases falling under the category of public interest, courts should follow the balancing approach with the single test of avoiding negative externalities.
A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students
Brian J. Fahey
I. Introduction
II. Three Models for Regulating Juvenile Conduct ... A. The Criminal Punishment Model ... 1. Rights Attendant to the Criminal Punishment Model ... 2. A Framework for Recognizing Criminal Punishment ... B. The Juvenile Justice Model ... 1. Rehabilitative Beginnings ... 2. Recognizing Due Process Rights in Juvenile Justice ... 3. A Retributive Renaissance in Juvenile Courts ... C. The School Discipline Model ... 1. Sparse Constitutional Origins ... 2. Students’ Rights and Punishment in Schools ... a. Goss v. Lopez ... b. Ingraham v. Wright ... 3. What Goss and Ingraham Tell Us about Students’ Rights in School
III. The School-to-Prison Pipeline ... A. Zero-Tolerance Policies ... B. Referral of Students to the Juvenile System for Misconduct in School ... C. The Rise of the School Resource Officer
IV. The Negative Consequences of the Pipeline ... A. Counterproductive Results ... B. Disproportionate Effect on Minority and Learning-Disabled Students ... C. Discipline without a Purpose
V. Conclusion
An Infamous Case: How the Iowa Supreme Court’s Minimalist Approach Forced Everyone to Come Back for More in Chiodo v. Section 43.24 Panel, 846 N.W.2d 845 (Iowa 2014)
Michael S. Boal
I. Introduction
II. Background ... A. Chiodo v. Section 43.24 Panel Facts ... B. Chiodo v. Section 43.24 Panel Opinions ... C. Judicial Minimalism
III. Analysis ... A. Dual Disorder: Two Levels of Minimalism ... B. More Harm than Good: Four Indicators ... 1. Final Arbiter of Constitutional Rights ... 2. Application of Stare Decisis ... 3. Repeat Players and Institutional Relationships ... 4. Increased Future Litigation
IV. Conclusion
Giving Birth under the ACA: Analyzing the Use of Law as a Tool to Improve Health Care
Elizabeth Kukura
I. Introduction
II. Overview of Maternity Care in the United States ... A. High Costs and Poor Outcomes: Demonstrating the Urgent Need for Maternity Care Reform ... B. Understanding the Landscape of Childbirth
III. The ACA and Maternity Care ... A. The ACA’s Significant Expansion of Access to Maternity Coverage ... 1. ACA Reforms that Apply Regardless of Coverage Source ... 2. ACA Reforms That Apply to Particular Modes of Coverage ... a. Individual Market ... b. Medicaid ... B. The ACA’s Improvement of Maternity Care Benefits ... 1. ACA Reforms That Apply Regardless of Coverage Source ... 2. ACA Reforms That Apply to Particular Modes of Coverage ... a. Individual Market ... b. Private Insurance (Individual and Employer-Sponsored) ... c. Medicaid (and Medicare) ... C. The ACA’s Investments in Better Care through Programmatic and Policy Initiatives
IV. Assessing the ACA’s Impact on Maternity Care: Enhancing Coverage without Shifting Culture ... A. The Need for Payment Reform in Maternity Care ... B. Improving Outcomes Requires Practicing Evidence-Based Maternity Care ... C. Transforming Birth by Elevating Midwives as Primary Maternity Care Providers
V. Conclusion: Reflections on Law as a Tool to Improve Health Care
Restoring the Civil Jury in a World without Trials
Dmitry Bam
Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed. This Article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.
Intersectionality at the Intersection of Profiteering and Immigration Detention
Mariela Olivares
This Article presents an original exploration of the connections between the corporatization of mass immigration detention, the societal and political pressures for stricter immigration law and policy, and the subordination of immigrants. In short, the social and political subordination of immigrants, who embody the marginalized identities of criminal, non-citizen, and person of color, feed the profit-seeking carceral machine. To illuminate this practice, the Article uses as a case study the increased detention of mothers and children immigrants, who migrated to the United States in record numbers in 2014. This intersection between corporate profit models—immigration law and policy—and critical legal studies has not yet been fully explored in the scholarly literature. Upon setting a foundation regarding the history and constitutional underpinnings of immigrant detention and presenting a snapshot of the current state of detention, the Article then focuses on the corporatization of incarceration and immigration detention. Further, the profiteering—immigration detention intersection is placed within the context of subordination theory. Finally, the Article concludes by providing paths to legislative and regulatory reform and to modes of advocacy to disrupt the entrenched intersectional foundation.
Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources
Elizabeth Ann Kronk Warner
In an age when vulnerable tribes and Native communities around the country are threatened by the impacts of climate change, advocates seek new and innovative legal tools to provide protection for endangered resources. To date, legal tools such as litigation and adaptation plans have been used with varying levels of success. For the first time, this article considers whether tribal treaties with the United States may prove helpful in protecting threatened resources. Treaties historically played an important role for many tribes, as they have a profound cultural connection and are a powerful expression of tribal sovereignty. Also, when courts find treaties applicable, tribes have generally been successful in protecting the resources at issue. In considering whether such historical documents may be applied in the climate change context, this article begins by looking at the treaty language of specific tribes, which have expressed interest in shielding treaty-protected resources, and also methodologies of interpreting treaties. The article then goes on to consider how such treaty language might be used in a legal claim against the United States, speculating as to uses under both domestic and international law. Ultimately, the article concludes that it may be possible to use treaty language to protect resources threatened by climate change under certain circumstances.
Standing on Thin Ice: How Nebraska’s Standing Doctrine Prevents the Majority of Surface Water Users from Obtaining Judicial Relief against Groundwater Users Interfering with Their Appropriations
Logan Hoyt
I. Introduction
II. Background ... A. Water Development in Nebraska ... B. Spear T Ranch, Inc. v. Knaub ... C. Introduction to Standing Doctrine
III. Standing in Water Law Cases ... A. Natural Resource Districts and Standing to Challenge Governmental Actions ... B. Surface Water Entities and Standing ... C. Contrast between Natural Resources District Standing Cases and Central ... D. Nebraska’s Standing Doctrine Prevents Most Surface Water Users from Obtaining Relief
IV. Is It Good Public Policy to Allow Surface Water Users to Pursue Judicial Relief? ... A. Arguments in Favor of Judicial Intervention ... B. Arguments against Allowing Surface Water Irrigators to Obtain Judicial Relief ... C. Policy Summary
V. If Surface Water Irrigators Should Be Able to Sue, What Changes Can Be Made? ... A. Legislative Intervention ... B. Judicial Intervention
VI. Conclusion