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Patterns of Panic
Full text linkDisruptions in the constitutional order can agitate social anxiety, particularly when an out-group on the rise challenges an in-group’s political dominance and position in a constitutional regime. This has been acutely true concerning civil rights expansion, where civil rights opponents have turned to libertarian theories of law when their cultural currency is on the ropes. This essay highlights some of the similarities between libertarian ideological impulses at critical junctures of American constitutional development during Reconstruction and in resistance to the rights of gay, lesbian, bisexual, and transgender Americans in the twenty-first century. In these two crucial moments of constitutional development, a similar pattern of panic emerged whereby opponents to a more progressive constitutional order worked to steer civil rights jurisprudence toward a deregulatory, market-centered theory of rights, favoring live-and-let-live approaches to remedying social inequality over a state-backed right to dignity in the public square
2024--Revisiting Religion in the Struggle for Workplace Justice
No full textDominating the news about the intersection of religion and Worklaw are stories focused on conservative Christian claims of exemptions from a variety of laws designed, mostly, to provide minimum standards to protect vulnerable workers. Often lost in these narratives are perspectives from other religious traditions, even other Christian traditions, on economic and workplace justice, focused on protecting the vulnerable. Over 130 years ago, at the height of the Gilded Age, Pope Leo XIII delivered the first papal encyclical devoted to economic issues and vulnerable workers, Rerum Novarum. In the midst of what has been called a Second Gilded Age, a deeper examination of religious perspectives on workplace justice is needed to support contemporary movements for workplace and broader economic justice.https://scholarship.law.slu.edu/lj_wefel_symposia/1002/thumbnail.jp
2024--Race, Gender and Disability: Reimagining Controlled Substances Regulation in Health Care to Reduce Intersectional Harms
No full textFor more than a century, U.S. drug policy has been designed to disproportionately disempower and punish already marginalized communities. The effects have reverberated from the criminal legal system to matters as fundamental as employment, housing, and parenting. These structural forces of oppression are also pervasive in health care and result in serious and even life-threatening harms to people who use (or are perceived as using) controlled substances or could benefit from medical care that includes controlled substances. The symposium will examine the ways in which controlled substances laws and policies induce harm to individuals in need of appropriate health care. These harms are disproportionately felt by people in one or more minoritized and racialized groups (e.g., Black women with chronic pain), compounding the negative impacts of social determinants of health and worsening existing health inequities. Speakers will address specific areas of inequity and discrimination and offer approaches to reduce existing harm from current law and policy and its implementation.https://scholarship.law.slu.edu/jhlpsymposia/1003/thumbnail.jp
The Supreme Court’s Access to Court Decisions in 2023-2024
Full text linkThe Supreme Court’s 2023–24 Term produced a number of controversial decisions, affecting everything from where unhoused people can sleep to the president’s absolute immunity. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on a trio of decisions that curtail the power of administrative agencies. Also highlighted are decisions that address jurisdiction, standing and mootness, sovereign immunity, statutory construction, due process, and equal protection. We close with a brief preview of cases before the Court during the 2024–2025 Term
The Clean Water Act Section 401 Water Quality Certification Improvement Rule and Why it Deserves Chevron Deference
Full text linkThis Article reviews the history of CWA Section 401 and finds that it supports affording EPA’s newest interpretive rule Chevron deference. The CWA Section 401 Water Quality Certification Improvement Rule serves as an important case study of the doctrine which faces mounting criticisms and two cases challenging its legality in the Supreme Court at the time of this publication. Although its application delegates lawmaking authority to unelected officials who change policies with the tides of each election, this delegation has been necessary in many areas of the law due to Congress’s failure to act in recent years. Instead of simply surrendering the interpretation of ambiguous statutes to the judiciary, CWA Section 401 exemplifies the determination of deference owed to an agency’s interpretation through a close analysis of Congress’s intent, the agency’s previous actions, and the statutory language itself. Without addressing the merits of challenges to Chevron deference or predicting their outcomes, this Article reviews the legislative, rulemaking, and judicial history of CWA Section 401 and concludes that its history supports deference to the new rule when it is challenged in court
The Role of Historic Preservation in St. Louis Vacancy Solutions
Full text linkThe homes of St. Louis, Missouri reflect the diverse backgrounds of the families who built them. As the need for labor grew during the City’s “brick boom,” families from the American South and from around the world immigrated to St. Louis, bringing unique architectural history with them. This history is now threatened by St. Louis’s rising vacancy rates.
The long-term impacts of racial zoning ordinances, restrictive deed covenants, and redlining have led to dense vacancy in North St. Louis neighborhoods. Crime, public health, and economic concerns follow vacant properties, adversely impacting North St. Louis individuals, families, and businesses.
Demolition has been a standing solution to vacancy. St. Louis neighborhoods have been razed in the name of “urban revitalization,” leaving vacant properties in the place of community anchors and architectural landmarks.
This note will explore the heritage of North St. Louis through its architecture and examine how many of its historic homes have become vacant. Current practices used to curb vacancies, including tax credit incentives, demolition, and grass roots initiatives will be explored. Finally, this note will discuss proposed amendments to stem the rise of current vacancies, and address how deconstruction and urban archaeology can be used to balance demolition and historic preservation
Collaborative Creac Drafting: Co-Creating an Example in Context
Full text linkThe quickest way to a student’s mind is through engagement. As legal writing professors, we can assign pages on how to organize an analysis, provide helpful examples, and orally describe the process. However, some students need a more hands-on approach. In this article, I explain my process of actively engaging students to draft their first CREAC together. By collaboratively working together to assemble this ungraded CREAC over a series of classes, the students develop an understanding of how to properly organize their analysis of a discrete issue based on the assigned facts and law. For each part of the CREAC we draft in class, the students are directed to apply their newfound knowledge to tackling the memorandum’s remaining CREACs on their own. The results of this teaching technique are clearer expectations, increased self-confidence, and higher quality work product
THE MISGUIDED USE OF THE HARVARD/UNC RULING TO THWART LAW FIRM AND OTHER PRIVATE EMPLOYER DEI EFFORTS
Full text linkThis article explores the Harvard/UNC ruling and what, in the author’s view, is the misguided efforts by certain political and well-financed private actors to use that ruling to justify the eradication of private employers and law firm DEI efforts. It is the author’s firm belief that because the Supreme Court’s holding is limited to an analysis of the Constitution’s Equal Protection clause (limited to state actors) and Title VI (covering private actions receiving federal funding), that ruling should not be used by courts to quash DEI programs designed to level the employment playing field for minorities, women and other protected classes in accordance with Title VII of the Civil Rights Act of 1964 and EEOC regulations. On the contrary, where such DEI programs seek to remedy historical discrimination at a particular company, provide mandatory DEI training to personnel, or seek to afford opportunities based on race-neutral, socioeconomic factors such as underrepresentation or economic disadvantage, such DEI programs should be deemed in full compliance with existing law and can and should withstand judicial scrutiny.https://scholarship.law.slu.edu/lawjournalonline/1126/thumbnail.jp
EMTALA Preemption of State Laws Restricting Emergency Abortions
Full text linkThe Emergency Medical Treatment and Labor Act (EMTALA) was established to restrict hospitals from refusing to treat or transferring patients with an unstable emergency medical condition. While intended to protect vulnerable groups from discrimination, the duty EMTALA imposes on hospitals also applies when a pregnant patient presents to a participating emergency room experiencing an emergency medical condition where the standard of care is pregnancy termination. Since Dobbs v. Jackson Women’s Health Organization, states have enacted laws prohibiting abortions, many with no exception or exceptions too narrow for stabilizing a pregnant patient’s emergency medical condition as required by EMTALA. This Note examines the history of EMTALA and current state laws restricting abortion in Idaho, Texas, Missouri, Arkansas, and Alabama. This Note discusses how those state laws are at risk of being preempted to the extent of conflict by EMTALA’s express preemption clause, which preempts any state law that “directly conflicts” with the requirements of the Act. State laws that make it (1) impossible to comply with the requirements of EMTALA or (2) those laws that stand as an obstacle to the Act are at risk of preemption. A state law that only permits an abortion when the pregnant person’s life is at risk directly conflicts with EMTALA’s requirement to stabilize an emergency condition and to prevent material deterioration of the condition. Obstacles to EMTALA may include a state law that imposes additional requirements on a hospital prior to providing the stabilizing care, heavy burdens on a provider such as criminal penalties requiring an affirmative defense or those that chill their response to the condition, or unclear or narrow definitions of statutory terms. Finally, this Note concludes that state laws restricting emergency abortions that do not adopt the statutory language of EMTALA for the stabilization of an emergency medical condition are at risk of being preempted to the extent of the conflict