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.

Trump's Dangerous Judicial Legacy

Combining the statistical data on the rapidly shifting demography of the federal judiciary under President Trump with insights from the scholarly literature on theories of procedural justice and representative bureaucracy, which posit that the diversity of judges matters to citizens’ perceptions of justice as well as to judicial accountability to minority citizens’ interests, this paper suggests...

The Supreme Court, Due Process and State Income Taxation of Trusts

What are the constitutional limits on a state’s power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina’s income taxation of...

An Incomplete Masterpiece

The recent wave of commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. This article contends that Masterpiece is a flawed decision because of its fundamental incompleteness. Despite being held out as an opinion on religious liberty, Kennedy’s decision omits any discussion of whether the state interest might outweigh the baker’s religious freedom.

W(h)ither Environmental Justice?

This article considers Gitanjali Nain Gill’s recent book Environmental Justice in India, the first comprehensive look at India’s National Green Tribunal. In addition to assessing issues concerning the best ways to integrate science into judicial decisionmaking and highlighting India’s failure to maintain good environmental data, it argues that the Tribunal’s record reveals several crucial...

The Problem With Nostalgia (or In Defense Of Alternative Facts)

Language lives in the present, though we often approach it as though it was settled in the past. But those yearning for the meanings of some bygone era, like those endeavoring to deduce a single, correct meaning from the words on a page, are deluded. The intractable problem of induction scuttles these projects, and reveals that we cannot ask “What does it mean?” without also asking, “To whom?”

The Two-Foundings Thesis: The Puzzle of Constitutional Interpretation

This essay explores interpretive debates over constitutional powers and rights. It aims to explain how opposing viewpoints about power/rights and moral reading/originalism could both accurately reflect the theories on which the nation was founded. The essay proposes that the Constitution itself is a bifurcated text created by the existence of America’s two foundings establishing state governments...

A Successful Experiment: California’s Local Laboratories of Regulatory Innovation

This Article looks to local California jurisdictions’ experiences in regulating electronic smoking devices to examine the mechanisms by which state and local policies converge. It concludes that, over time, California jurisdictions tended to adopt broader and more effective regulations of such devices, and that the experiences of localities may have shaped policy at the state level as well.

Enforcing Stereotypes: The Self-Fulfilling Prophecies of U.S. Immigration Enforcement

This article illustrates the present-day impact of racialization of U.S. immigration law through a critical analysis of Section 240A(b)(1) of the Immigration and Nationality Act, which governs relief from deportation for undocumented immigrants. Immigration scholars have discussed the amorphous, unworkable nature of this provision, but the article delves a step further to consider its secondary...

The Reliable Application of Fingerprint Evidence

In State v. McPhaul, the North Carolina appellate panel found error in admitting expert testimony on latent fingerprinting based on the lack of evidence of reliability. The panel did not reverse the defendant’s conviction, finding the error to be harmless. This essay describes the scientific status of fingerprint evidence, the facts and the judicial reasoning in McPhaul, and the implications of...

Insuring Breast Reconstruction

The article posits that the proper interpretation of the Women’s Health and Cancer Rights Act includes breast cancer-suffering women’s right to insurance coverage for reconstruction after partial, as well as full, mastectomies. Additionally, the article argues that the question of whether the Act contains a private right of action separate from ERISA should be revisited.

Prohibiting Guns at Public Demonstrations: Debunking First and Second Amendment Myths After Charlottesville

Prompted by the violent events at the August 2017 white supremacist protest in Charlottesville, Virginia, this article argues that state and local officials have significant latitude to enact and enforce laws that restrict the intimidating display of firearms at public demonstrations and protect people’s rights to speak freely and to peaceably assemble.

The Production of Feeling and the Reproduction of Privilege: Expectation, Affect, and International Investment Law

In the last twenty years, the concept of legitimate expectations has come to play a very prominent role in international investment treaty-based arbitration. This article explores what insights investment law scholars can gain from authors in the fields of critical race theory and settler colonial studies, who have examined the use, and implications of the use, of the concept of expectations in...

By Force of Expectation: Colonization, Public Lands, and the Property Relation

This Essay argues that federal land policy as a form of colonial administration has been constitutive for the logic of expectation as property in the United States. Approaching the Bundy occupations as flashpoints that illuminate competing interpretations and claims to land within the history of westward colonization, the Essay demonstrates the ways in which expectation emerges from particular...