As helpful as new forms of centralized data collection might be for investigators, there remains a critical open issue: the systems were not designed to identify the exculpatory and impeaching material prosecutors are required to disclose under Brady v. Maryland. This Article is the first to examine the design flaw at the core of the intelligence-driven prosecution model – a flaw that creates a due process problem that threatens to undermine the legality and legitimacy of this innovation.
This Article outlines a novel First Amendment compelled speech claim against a growing body of abortion restrictions, including fetal demise and burial laws, premised on a state interest in “expressing respect for potential life.” It weaves Fourteenth Amendment limitations together with developments set out last year in NIFLA v. Becerra to demonstrate that the Court’s expanding First Amendment jurisprudence has made such laws exceptionally vulnerable to a compelled expressive conduct challenge.
This article presents the results of an unprecedented study of cases appealing naturalization denials where the adjudicator found the applicant lied or omitted information during the course of the naturalization process, referred to as “false testimony.” The study uncovered that while the most recent targets of this tool are disproportionately those from Muslim-majority nations, these tactics were used against perceived communists, Eastern Europeans, and Irish and Italian immigrants in our recent past.
This article argues that mixed income housing is a policy response to racial segregation structured around managing discrimination – building affordable housing in a way that takes into account the discriminatory preferences of wealthier residents. Deciding whether “discrimination management” is acceptable requires confronting racism as a permanent condition in our society and the costs of catering to discriminatory preferences in order to seek to achieve a possibly greater good.
This essay explores Janus’s implications in light of the Supreme Court’s apparent adherence to “the doctrine of one last chance,” which requires the Court to give notice of its willingness to issue disruptive decisions before doing so.
The Supreme Court promulgates rules of procedure pursuant to the Rules Enabling Act. This statute provides that “Such rules shall not abridge, enlarge or modify any substantive right.” The Court has not taken the opportunity to refine the precise contours of the Act and has never invalidated a rule under it. This article takes up that enterprise, articulating an understanding of the Rules Enabling Act that will clarify the scope of the Supreme Court’s rulemaking authority.
The familiar ideal is that the remedy should “fit the wrong”. This article reveals that in copyright law, the remedies actually create the wrong. Conducting a novel study of infringement claims and case law involving statutory damages, the author explains how plaintiffs routinely employ enhanced damage claims to threaten and subdue alleged infringers into making settlement concessions. The article concludes that copyright’s statutory damage framework is a remedy in dire need of reform and provides a number of substantive and procedural policy suggestions.
The article argues that courts unjustifiably limit public school liability under both Title IX and the Fourteenth Amendment to students who suffer sexual, physical, and verbal abuse and harassment. As a remedy, the article proposes changes to the assessment of Fourteenth Amendment and Title IX claims that abandon misconceptions, increase schools’ potential for liability, and promote the development in schools of processes for preventing, discovering, and addressing students’ harms.