This Article considers a question rarely addressed: What is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. The analysis in this Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Alabama in the 1950s...
Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard
This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs...
Volume 57, Issue 4
Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory Abrogation of Oliphant
This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain...
The (Constitutional) Convention on IP: A New Reading
All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that...
Unborn & Unprotected: The Rights Of The Fetus Under § 1983
When the action of a state agent results in the deprivation of the federal rights of any “person” within the jurisdiction of the United States, that person may bring a civil action under 42 U.S.C. § 1983. In Roe v. Wade, the Supreme Court held that a fetus is not a constitutional “person.” As a result, an unborn child injured by a state agent may not raise a claim under § 1983. This result...
The Unexceptionalism of “Evolving Standards”
Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—determines constitutional protection based on...