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Regulating the Pains of Racial Discrimination
Full text linkThis essay examines the relationship between experiences of racial discrimination and pain, assessing how social, legal, and regulatory responses to racial pain in the United States can enable further discrimination and compound the underlying pain. The essay articulates a conceptual framework for understanding this relationship, contending that: racial discrimination can contribute to pain severity and sensitivity; patients of color seeking pain relief are subject to heavy social scrutiny, including from their medical providers; social scrutiny and regulatory restriction together limit patients’ lawful avenues for pain relief, including their access to controlled substances that are used to manage pain; patients who engage in self-help when denied adequate pain relief face criminalization and further limits on the management of their pain; and the weight of this scrutiny, restriction, and penalization are likely to compound and sustain the painful effects of racial discrimination. In offering this framework, the essay conceptualizes both racial discrimination as a source of pain and pain as a factor that enables subsequent discrimination. This conceptualization thus underscores the significant role of failed pain management policies in facilitating racial discrimination and draws attention to the underacknowledged anti-subordination potential of effective pain management law, regulation, and policy as a tool for intervening in the complex pathways to racial discrimination
International Efforts to Collect Evidence Related to Russia’s Aggression Against Ukraine
Full text linkInternational law has been at the very center of the global response to Russia’s aggression against Ukraine since February 2022. Evidence collection has become one of the core elements of this international law response. The April 2023 keynote address on which this article is based focused on international efforts to collect evidence related to Russia’s aggression against Ukraine. Specifically, this article focuses on responses in Ukraine, the United States, the European Union, and other jurisdictions on behalf of governments, international organizations, and civil society organizations to collect evidence related to war crimes, crimes against humanity, genocide, and aggression by all parties to the conflict
From Deference to Indifference: Judicial Review of the Scope of Public Health Authority During the COVID-19 Pandemic
Full text linkFor most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic cases that presaged its decline. Part IV looks at how state and federal courts analyzed challenges to officials’ scope of authority during the pandemic. Although most courts upheld most uses of public health powers during the pandemic, many courts, including the Supreme Court under the guise of the major questions doctrine, replaced deference with deep skepticism of expertise and indifference to the public health effects of their decisions. Part V considers the implications of this development for the government’s capacity to respond to new health threats and argues, paradoxically, that the decline of deference to agency determinations of the scope of their authority may be more dangerous to health than the denial of deference to agency fact-finding in particular cases
The Future of Jacobson v. Massachusetts and Modern Substantive Due Process for Public Health Preparedness
Full text linkBoth the threat of public exposure to Ebola in the United States in 2014 and the COVID-19 pandemic beginning in 2020 prompted states to impose quarantine and mask mandates, among other responses, to protect the public’s health. When these state actions were eventually challenged on substantive due process grounds in courts across the nation, judges struggled to determine which legal test applied when reviewing the constitutionality of the state actions. On one hand, courts considered the precedent set forth in Jacobson v. Massachusetts, a 1905 Supreme Court case that upheld a Massachusetts vaccine mandate as a valid exercise of the state’s police power. On the other hand, courts customarily review state actions challenged on substantive due process grounds using modern substantive due process, which Jacobson pre-dated. During the Ebola crisis and the COVID-19 pandemic, courts applied Jacobson’s precedent in disparate ways, further muddying the waters in determining how Jacobson relates to the modern substantive due process. This Note defines the three ways courts have applied Jacobson during public health events of the last decade and defends reading Jacobson as articulating a standard that is consistent with modern substantive due process. This Note argues that this reading of Jacobson is not only logically and historically sound, but is also the best approach for ensuring a coordinated approach to address future public health emergencies, therefore promoting public health preparedness
War Crimes as Vocabulary Shaping the Visible
Full text linkThe traditional exclusion of sexual violence and rape from the ambit of international humanitarian law stems from the long-established masculinist perception of war and the exacerbated invisibility of women and girls in that context. International criminal law tried to recognize this traditionally invisible suffering and pain in armed conflicts by characterizing rape and sexual violence as war crimes. This contribution explores the effect of the recognition of rape and sexual violence as war crimes on conflicts and societies as a case study to explore the use of war crimes and international criminal law—rather than International Humanitarian Law (“IHL”) norms—as a means of, if not regulating, at least framing, perceiving, and communicating about practices of warfare and the suffering they engender.
In order to respond to this inquiry, this contribution asks whether the recognition of rape and sexual violence as war crimes led to a better acknowledgement of women’s experiences during armed conflicts. This contribution argues that it is impossible and undesirable to search for the deterrent effect of international criminal law in general, and war crimes in particular or to demonstrate that they prevent harm during armed conflicts. However, I suggest that they offer a powerful vocabulary that holds the potential to better acknowledge suffering and formulate counter-narratives accounting for the stories and lived experiences of victims. The war crimes vocabulary and the way it is shaped and populated by judges and scholars determines the extent to which suffering is visible and discussed beyond the courtroom
Teaching and Learning About Implicit Bias in the Legal Practice Classroom: The Lesson of Sandy Jordan
Full text link“Implicit bias” describes the unconscious stereotypes and attitudes that all humans have hard wired in their brains. It can go awry when we have implicit biases based on race or ethnicity that are unrealized and unfair. Gen Z students are famously diverse, and they are proud of their diversity, but they are also uncomfortable talking about sensitive topics, including implicit bias. Legal Practice professors are in a unique position to work with their Gen Z students to identify and eliminate implicit bias because of our year-long course and the interactive nature of our class. This article discusses how implicit bias is innate in humans, how even our diverse Gen Z students are not immune to it, and how to address implicit bias in our Legal Practice class. We know from the research that Gen Z likes to work independently but also together, first coming up with their thoughts before sharing with others. To make discussions of implicit bias work with this cohort, various exercises can be done giving students the opportunity to work alone and then sharing their thoughts with the larger class. Once students have identified their own implicit biases, students can discuss them constructively with one another in a “Brave Space.” Brave Spaces ask students to be vulnerable with each other while relying on certain ground rules like engaging in civil dialogue, owning one’s intentions and impact on their classmates, and differentiating between a personal attack and an attack on a person’s idea. Coming to discussions of implicit bias from this perspective and with these guardrails can help students understand their classmates’ and their own implicit biases and work to correct them
And the Results Are in … Reviewing the Results of the First Year Larc Research Exam Wherein Some of the Questions Were Redesigned to Meet the Expectations of the Next Gen Bar Exam Format
Full text linkIn 2010, the faculty of St. Louis University School of Law implemented a research exam to test student competencies after their first year of law school. Since its creation, the exam has helped students feel more secure starting their first legal internships, allowed faculty to identify areas of decreased competency, and helped faculty find “better” ways to teach legal research and writing material. In anticipation of the implementation of the NextGen Bar exam in July 2026, the faculty determined that it was necessary to make some changes to the research exam in order to both gather data on students’ responses to the new question styles as well as expose students to the new question formatting. Professor Chris Rollins utilized NCBE materials and Missouri case law to craft a set of NextGen Bar Exam questions that then appeared in the research exam.
There are several takeaways from the student data for the NextGen Bar questions that appeared on the research exam. First, students must employ critical reading skills and concept retention when they encounter the progression of questions rolled out for any given fact pattern, as they are currently expected to do on the MPT section of the Bar exam. Second, students need a strong handle on time management in order to succeed with these questions. Third, faculty must help students learn how to spot multiple correct answers instead of searching for a singular correct answer. Lastly, students need more opportunities to connect concepts from different class subjects. There are more and more resources available to help address these needs, and with proper planning, faculty can help students succeed with the NextGen Bar requirements
Second-Tier Marriages
Full text linkThis Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now on the books, the Supreme Court\u27s treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm\u27n and 303 Creative LLC v. Elenis reveals the status quo\u27s hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court\u27s LGBTQ rights advancement cases why such diminishment has occurred in Masterpiece and 303 Creative and what these recent decisions mean for sexual minorities. Retrenchment is not an unexpected halt to the LGBTQ rights progress of the early 2010s because of some new grievance from the status quo; rather, retrenchment is part of the ongoing establishment\u27s maneuverings involving group rights and identities that have always been at play in our democratic commitments-particularly as a settler colonial state. Specifically, from a historical-political perspective, this Essay anchors Masterpiece and 303 Creative within our American settler colonial experience to explain the persistence of retrenchment. From this anchoring, the Court\u27s motivations in 303 Creative become clearer. Ultimately, the American settler colonial experience informs the Court\u27s normative vision of queer people and relationships post-Obergefell. As this Essay reveals, these post-Obergefell decisions that involve same-sex couples allow the Court to normatively envision same-sex relationships after marriage equality—putting an imprimatur on same-sex relationships as second-tier to opposite-sex relationships as a way to ultimately preserve or privilege a discriminatory, heteronormative status quo