SLR Online

Volume 72 (2019-2020)

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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)

CCU Room

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)

Coronavirus_SARS-CoV-2

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)

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Book Review Symposium - Theaters of Pardoning

Introduction

by  Amalia D. Kessler  

Bernadette Meyler’s Theaters of Pardoning is a tour de force of legal, literary, and historical erudition, which packs a punch for key questions of law and justice today. In this Book Review Symposium, four prominent, interdisciplinary scholars, including Meyler herself, each reflect on particular aspects of the book’s many important contributions.

Volume 72 (2019-2020)

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Book Review Symposium - Theaters of Pardoning

Acts of Oblivion

by  Kenji Yoshino  

Bernadette Meyler’s Theaters of Pardoning offers a profound and provocative meditation on the relationship between forgiveness and the state. In this comment, I follow her methodological and substantive lead by taking literary and legal approaches to a curious form of pardoning she discusses in her work—the “Act of Oblivion.” The Act of Oblivion operated as a super-pardon: It was “a form of general amnesty erasing the record of the underlying events rather than simply remitting punishment.” Pardon is to oblivion as forgiving is to forgetting.

Volume 72 (2019-2020)

Cinna

Book Review Symposium - Theaters of Pardoning

The Ends of Pardoning

by  Peter Brooks  

Theaters of Pardoning is itself an exemplary act of law and literature scholarship, in which each of these fields illuminates the other. Meyler’s book transcends the impasse of law and literature scholarship in that it privileges neither of its fields but instead creates a dialogue between them. That takes tact and balance, as well as deep understanding of the two fields set in juxtaposition.

Volume 72 (2019-2020)

Measure for Measure

Book Review Symposium - Theaters of Pardoning

The Drama of the Pardon, the Aesthetics of Governing and Judging

by  Robert Weisberg  

Theaters of Pardoning is the one of the rare works that shows how legal authority and literary form interact catalytically in the conduct of government and adjudication. The heart of the book’s contribution to law-literature scholarship, however, lies in its demonstration of how the aesthetic development of the genre of tragicomedy both mirrored and influenced adjustments in the strategy of royal pardoning employed to buttress sovereignty.

Volume 72 (2019-2020)

Trump

Book Review Symposium - Theaters of Pardoning

Trump’s Theater of Pardoning

by  Bernadette Meyler  

Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion.

Volume 72 (2019-2020)

Immigration to Europe

Response

The Struggle Against Empire Continues

Reflections on Migration as Decolonization
by  Chantal Thomas  

Migration as Decolonization telegraphs the essence of a postcolonial approach to the assertion of sovereign territorial exclusion. Tendayi Achiume’s concept of “de-imperial migration” clarifies and enhances a set of important critiques and should justly impact not just legal scholarship but also broader public discourse. This Response brings out two of the concepts in Migration as Decolonization and relates them to Professor Thomas' earlier discussions of “interconnectedness” between migration-sending and migration-receiving territories.

Volume 72 (2019-2020)

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2019 Student Essay Competition Winner

Influencing the Future

Compensating Children in the Age of Social-Media Influencer Marketing
by  Erin E. O'Neill  

In the age of smartphones, parents frequently take photos and videos of their children—even mundane moments are easy to share with friends and family. But what happens when these photos and videos are made public for any social-media user to see? This Essay proposes ways in which states can regulate online child-centric content by mom-influencers.

Volume 72 (2019-2020)

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2019 Student Essay Competition Winner

Game Changer

Why and How Congress Should Preempt State Student-Athlete Compensation Regimes
by  Justin W. Aimonetti & Christian Talley  

In September 2019, California enacted the Fair Pay to Play Act, a groundbreaking piece of legislation that allows college athletes to profit off their name, image, and likeness. This Essay contends that congressional legislation should expressly preempt competing state regulations, thus restoring national uniformity in college sports. An express preemption provision would both avoid judicial uncertainty about the law’s preemptive scope and ensure a level playing field.

Volume 72 (2019-2020)

We the People

Response

Madison’s Waiver

Can Constitutional Liquidation Be Liquidated?
by  David S. Schwartz  

Professor William Baude’s recent article Constitutional Liquidation outlines such a theory, by which indeterminate constitutional meaning can be “liquidated”—clarified and settled—through a “course of deliberate practice” by non-judicial public officials. Baude’s article makes a good start but leaves certain critical questions unaddressed. If Baude develops his theory further, he will have to analyze numerous examples of non-judicial precedent to define the contours and limits of liquidation.

Volume 72 (2019-2020)

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Essay

What Justice Thomas Gets Right About Batson

by  Thomas Ward Frampton  

In Flowers v. Mississippi, the Supreme Court vacated the capital conviction of Curtis Flowers; prosecutor Doug Evans was “motivated in substantial part by discriminatory intent” when he used a peremptory strike to exclude a black potential juror, the Court held, violating a prohibition against such conduct first announced in Batson v. Kentucky. Justice Thomas penned a lengthy dissent that has been met with disdain in the popular press. But Justice Thomas’s dissent also gets right many things about the Batson doctrine and race in the courtroom that the Court’s liberal wing has proven loath to confront.

Volume 72 (2019-2020)