CategoryDiscourse

Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.

Abolishing Racist Policing With the Thirteenth Amendment

This Essay is also forthcoming in our print edition. Abstract Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the...

Love in the Time of Cholera

Abstract A famous novel by Gabriel García Márquez describes a love story among three actors that took place in a city in Colombia during the time of cholera.  The interpersonal dynamics that unfold in this work by a Nobel Prize-winning writer offer insight into events taking place today.  We show how the urge to romanticize emotions during a time of great social stress, as well as the desire to...

Jump v. Los Angeles: Removing Platforms Further from Democratic Control?

Abstract In March 2020, Jump, Uber’s e-scooter subsidiary, sued the Los Angeles Department of Transportation over a rule that requires the company to share real-time location data about its e-scooters with the city government.  Jump argues that the rule operates in practice as a warrantless administrative search.  It also argues that all the data it collects from its users are part of its...

How the Law Fails Tenants (And not Just During a Pandemic)

Abstract In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two...

The Folly of Credit as Pandemic Relief

Abstract Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to...

The Shifting Frontiers of Standing: How Litigation over Border Wall Funding is Exposing Standing's Current Doctrinal Fault Lines

Abstract When President Trump announced that he was diverting funds from other items in the federal budget to satisfy a campaign promise to build a wall on the U.S.–Mexico border, a range of litigants lined up to challenge this action in the courts, including nonprofit organizations; state governments; the border county of El Paso, Texas; and the U.S. House of Representatives.  At the heart of...

Jail Suicide by Design

Abstract Jeffrey Epstein’s death in the federal jail in downtown Manhattan was the result of a conspiracy.  But the conspirators were not the Clintons, President Trump, or Prince Andrew.  Instead, his death, like too many others, was the result of a longtime conspiracy of lawmakers and actors within the criminal legal system itself.  Several features of our legal system seem almost designed to...

Misgendering as Misconduct

Abstract As litigation regarding the civil rights of transgender persons blossoms, a curious trend has emerged: In briefs, pleadings, and motions advocating anti-trans positions, attorneys have addressed trans parties with language at odds with their gender.  Through a close review of the language in briefs for three recent Supreme Court cases, this Article exposes the extent to which intentional...

What About the Rule of Law?  Deviation From the Principles of Stare Decisis in Abortion Jurisprudence, and an Analysis of June Medical Services L.L.C. v. Russo Oral Arguments

Abstract The right to abortion was established in Roe v. Wade in 1973.  Abortions have nevertheless been systemically inaccessible to vulnerable individuals and communities for generations, and anti-abortion state legislatures and the United States federal judiciary have continued to further obstruct abortion access.  This effort to undercut reproductive rights has taken on a new sense of...

Reversal Rates in Capital Cases in Texas, 2000–2020

A death row inmate who challenges either his conviction or sentence in postconviction proceedings can be said to succeed if he obtains either a new guilt-phase trial, a new sentencing-phase trial, or a commutation of his death sentence. This Article reports on the success rates of death row inmates in Texas for those who arrived on death row on or after January 1, 2000, up until December 31, 2019...

Can Fourteen- and Fifteen-Year-Olds Be Transferred to Adult Court in California?: A Conceptual Roadmap to the Senate Bill 1391 Litigation

California Legislature amended Prop. 57 with California Senate Bill 1391, which prohibited the transfer of fourteen- and fifteen-year-olds beyond narrow exceptions.  In response, the California courts have faced a series of cases brought by district attorneys challenging the constitutionality of SB 1391. This Article describes the sources of disagreement throughout this litigation and makes the...

Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction over Nonmembers

For the last forty years the U.S. Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. This Article proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such nonmembers.

The Consequences of Automating and Deskilling the Police

Discussions of automation in the workplace typically omit policing. This is a mistake. The increasing combination of artificial intelligence and robotics will provide us with social benefits, but it will also create new problems as automation replaces human labor. Mass unemployment may be one consequence. Another is deskilling, the loss of the skills and knowledge needed to perform a job when...

An Ode to the Categorical Approach

Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy. Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.