SLR Online

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Symposium - 2021 - Policing, Race, and Power

Law and Order as the Foundational
Paradox of the Trump Presidency

by  Trevor George Gardner  

This Essay scrutinizes the feuding between the Trump White House and various federal law enforcement agencies, concurrent with criminal lawbreaking in the Trump Administration, in an effort to extend scholarly understanding of the relationship between law-and-order politics and popular regard for rule-of-law principles.

Volume 73 (2020-2021)

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Symposium - 2021 - Policing, Race, and Power

To ‘Defund’ the Police

by  Jessica M. Eaglin  

Much public debate circles around grassroots activists’ demand to “defund the police,” raised in public consciousness in the summer of 2020. Yet confusion about the demand is pervasive. This Essay adopts a literal interpretation of “defund” to clarify and distinguish four alternative, substantive policy positions that legal reforms related to police funding can validate. It argues that the policy debates between these positions exist on top of the ideological critique launched by grassroots activists, who use the term “defund the police” as a discursive tactic to make visible deeper transformations in government practices that normalize the structural marginalization of black people enforced through criminal law.

Volume 73 (2020-2021)

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Reply

Medical Civil Rights as a Site of Activism

A Reply to Critics
by  Craig Konnoth  

Many continue to diagnose civil rights problems and their solutions using medical frames. Are these policymakers, backed by activists, wrong to do so? The answer, according to legal scholarship that has explicitly considered the question, seems to be yes. While the legal scholarship has emphasized the harms of using medical discourse, it has not explicitly considered its benefits across social movements—and there are several. Rather than suggest that these activists have miscalculated, this Reply seeks to understand why activists and policymakers have deployed medical frames. Further, recognizing that medical discourse and the rights—and burdens—it produces are malleable, this Reply seeks to explore ways in which to further its social justice possibilities.

Volume 73 (2020-2021)

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Essay

Legal Lessons from a Very Fast Problem: COVID-19

by  Eric E. Johnson & Theodore C. Bailey  

This Essay offers a look back on the initial phase of the COVID-19 catastrophe—a crisis that, at the time of this writing, is still expanding and deepening. We suggest three lessons: First, the free flow of information saves lives, an observation which sounds in constitutional free-speech rights, copyright law, and patent law. Second, politically accountable decision-making in the public health sphere has proven inapt in responding to the pandemic; this observation suggests a more prominent role in public health crises for independent administrative agencies and the judiciary. Third, pre-crisis regulations and rulemaking structures for approvals of medical products, and vaccines in particular, have not proven nimble enough in the face of the pandemic; this suggests an opportunity for congressional action to push agencies to move faster.

Volume 73 (2020-2021)

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Response

Reweighing Medical Civil Rights

by  Rabia Belt & Doron Dorfman  

Craig Konnoth’s Article, using “medical civil rights” as an angle onto disability, captures the ostensible benefits of disability legal claiming. We partially agree with him on this, but we also believe that he does not fully account for the weight on the other side of the negative aspects of medical framing. This Response contextualizes the benefits and recognition granted to medicalized individuals by noting the drawbacks to medicalization. We conclude by proposing a new way forward for disability justice. 

Volume 72 (2019-2020)

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Response

How Medicalization of Civil Rights Could Disappoint

by  Allison K. Hoffman  

Craig Konnoth’s article, Medicalization and the New Civil Rights, shows how medical framing and evidence of physically identifiable and measurable harms have been providing new pathways to vindicate civil rights harms. Longer-term, however, this Response wonders whether medicalization of civil rights might tell a more ambivalent narrative. First, medicalization could produce a sociological narrowing that could eventually limit how we think about justice. Second, and more speculatively, even the utilitarian benefits that medical framing is now producing might diminish as medicalization becomes a new situs for civil rights contests.

Volume 72 (2019-2020)

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Essay

Damnatio Memoriae and Black Lives Matter

by  Alex Zhang  

This Essay defends the recent scrutiny of civic symbols, triggered by police brutality and killings, against the Trump Administration’s criticism that it constituted a frivolous exercise in cancel culture. It examines links between recent destruction of monuments and the age-old Roman legal procedure of damnatio memoriae to show that condemnation of memory may serve legitimate purposes, especially in rehabilitating public spaces to express society’s disapproval of past offensive actions.

Volume 73 (2020-2021)

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Essay

‘Foreseeable Violence’ & Black Lives Matter

How Mckesson Can Stifle a Movement
by  Tasnim Motala  

This Essay draws from recent events to show how the Fifth Circuit’s “foreseeable violence” standard uniquely harms Black and racial justice protesters.  By contextualizing the Fifth Circuit’s opinion in Mckesson as part of a wider project spanning state and local legislatures aimed at stifling Black protest, the Author explains how even tort liability standards for protest can be, and will be, weaponized against those whose First Amendment rights are the most vulnerable.

Volume 73 (2020-2021)

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Essay

Contracts and COVID-19

by  Andrew A. Schwartz  

The COVID-19 pandemic of 2020—as well as government orders to contain it—has prevented countless people, babysitters to basketball players, from fulfilling their contracts. Are all of these parties legally liable for breaching their contracts? Or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled, or a dorm room leased at a college that is now closed?

Volume 73 (2020-2021)

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Essay

Indian Lives Matter

Pandemics and Inherent Tribal Powers
by  Matthew L.M. Fletcher  

American Indian people know all too well the impact of pandemics on human populations, having barely survived smallpox outbreaks and other diseases transmitted during the generations of early contact between themselves and Europeans. Modern tribal governments navigate a tricky legal and political environment. While tribal governments have power to govern their own citizens, nonmembers are everywhere in Indian country, and the courts are skeptical of tribal authority over nonmembers. This short Essay argues for tribal regulatory powers over nonmembers in Indian country during a pandemic. This should be an easy argument, but federal Indian law makes it more complicated than it should be.

Volume 73 (2020-2021)

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Essay

Why Do Rule 48(a) Dismissals Require ‘Leave of Court’?

by  Thomas Ward Frampton  

On May 7, 2020, the Department of Justice asked District Judge Emmet G. Sullivan to dismiss the felony charge against President Trump's former National Security Advisor, Michael T. Flynn. The Government has urged that Judge Sullivan grant the motion based on an argument that judicial meddling is improper where Rule 48(a) dismissal accrues to the benefit of the defendant. This Essay argues that the Government's position—and the Supreme Court language upon which it is based—is simply wrong in light of Rule 48(a)’s forgotten history. Rather, Rule 48(a) was drafted precisely to empower a district judge to halt a dismissal where the court suspects some impropriety has motivated the dismissal.

Volume 73 (2020-2021)

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Essay

COVID-19 and Formal Wills

by  David Horton & Reid Kress Weisbord  

This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it renders will-making inaccessible. As a result, the Essay urges lawmakers in states that cling to the statute to liberalize the requirements for creating a will.

Volume 73 (2020-2021)

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Essay

The Auteur as Editor

by  Rafi Reznik  

Bluebook Rule 18.6 is wrong because it cites production companies instead of film directors, counter to The Bluebook’s commitment to treating individuals rather than corporations as responsible for their work. Examining the issue through the lenses of Bluebook history, comparative citation guidelines, and film theory, this Essay suggests that film citations should recognize both individual directors and the collaborative character of filmmaking.

Volume 73 (2020-2021)

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Essay

When Public Participation Is Public Theatre

Misuse of Public Comment Opportunities by Anti-Vaccine Activists
by  Dorit Rubinstein Reiss & Barbara S. Romzek  

In recent years, anti-vaccine activists have misused public participation opportunities, especially the oral comment process in front of the Advisory Committee on Immunization Practices at the Centers for Disease Control and Prevention (CDC). These comments do not advance any legitimate interest—they do not improve decision-making, do not increase legitimacy of the policy-making process, and can even make committee members feel threatened. In these circumstances, oral commenting is more harmful than beneficial—and since the CDC has the discretion to limit oral comments, it should.

Volume 73 (2020-2021)

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Symposium - 2020 - Lawyering in the Age of Climate Change

What the Pandemic Can Teach Climate Attorneys

by  Sara C. Bronin  

The COVID-19 pandemic has caused more rapid changes to the law than most of us have seen in our lifetimes. As many have argued, climate change is also a dire emergency, requiring an equally sweeping legal response. Unlike COVID-19, however, the climate crisis will not manifest as one swift, simple, time-limited threat that might generate immediate consensus. This Essay explains why, on a practical level, COVID-19 and climate are intertwined. It argues that climate attorneys should focus on coronavirus lawsuits, which could be more consequential to climate progress than recent executive or legislative action.

Volume 72 (2019-2020)

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Symposium - 2020 - Lawyering in the Age of Climate Change

Litigating Separate and Equal

Climate Justice and the Fourth Branch
by  Maxine Burkett  

There are two kinds of climate cases proceeding through the courts that intersect with racial discrimination. One, the carbon tort, has the potential to address the more severe impacts of climate change on black and brown communities. The other, Juliana v. United States or, informally, the “Youth v. Gov” case, invokes the struggles and legacy of those fighting for racial equality in the civil rights movement. This Essay explores the “separate” and “equal” themes in these two lines of cases and, particularly relevant to the latter, suggests that the appeals for equality and dignity may continue to find inspiration in the broader strategies of the civil rights movement.

Volume 72 (2019-2020)

Courtroom

Symposium - 2020 - Lawyering in the Age of Climate Change

Forum Versus Substance

Should Climate Damages Cases Be Heard in State or Federal Court?
by  Vic Sher  

Since 2017, public agencies including cities, counties, and one state have filed thirteen lawsuits against fossil fuel companies seeking climate change-related damages. Plaintiffs filed 12 of the 13 cases in state courts; all 13 assert solely state law claims. But, defendants removed the cases to federal court. This Essay examines the relationship between the questions of federal court removal jurisdiction and the substance of plaintiffs’ claims.

Volume 72 (2019-2020)

Storm Over Business District

Symposium - 2020 - Lawyering in the Age of Climate Change

New Mandates for Action

Corporate Governance Meets Climate Change
by  Ali A. Zaidi  

In recent years, entities involved across the broad spectrum of private capital formation have begun to analyze the financial implications of climate change. This Essay seeks, briefly, to identify the purpose, people, and processes activated in the engagement of climate change by corporate governance. It notes with optimism that the decision points for corporate governance in this context are heterogenous: Opportunities exist to go on offense, not just defense.

Volume 72 (2019-2020)

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Symposium - 2020 - Lawyering in the Age of Climate Change

The Role of Lawyers in Decarbonizing Society

by  Michael B. Gerrard  

A number of groups of engineers and scientists have laid out specific pathways for meeting targets for reducing greenhouse gas emissions. For governments and corporations to deviate from their business as usual and instead follow these pathways, voluntary measures will only take us so far; legal requirements, incentives, and other inducements are needed. This Essay concerns one current project to turn GHG reduction goals into actual laws that could achieve these goals, and the critical role that volunteer lawyers will play in this effort.

Volume 72 (2019-2020)

Mind Your Oil Business

Symposium - 2020 - Lawyering in the Age of Climate Change

The Public Use Clause in an Age of U.S. Natural Gas Exports

by  Alexandra B. Klass  

This Essay explores how courts are grappling anew with the role of the Public Use Clause in an age of energy exports. Recent case law involving FERC’s public use determinations and the agency’s practice of delaying judicial review of its decisions through “tolling orders” shows increasing discomfort in the federal courts with FERC’s treatment of these projects. Such discomfort could lead to real changes in the law governing public use for natural gas pipelines and may create a new jurisprudence surrounding eminent domain.

Volume 72 (2019-2020)