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Take in Case of Emergency: Reconciling Necessity Takings with the Original Meaning of the Takings Clause
Get PDFDoes the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.
Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social problems, ranging from climate change mitigation to expanded public restroom access.
This Note attempts to ground necessity doctrine in the text and history of the Fifth Amendment’s Takings Clause through an originalist lens. The Takings Clause and necessity have a rich history, ripe for originalist analysis. After compiling and considering the relevant evidence, this Note argues the original meaning of the Fifth Amendment does not support a necessity exception to its compensation requirement. Instead, it argues that only in circumscribed circumstances does the state’s compensation obligation fail to attach when it destroys private property
What Does NPEP Mean to Us?
No full textThe Northwestern Prison Education Program (NPEP) provides currently incarcerated individuals across Illinois an undergraduate education from Northwestern University. At Stateville and Logan Correctional Centers, admitted NPEP students work toward a Bachelor of Science degree, taking a full course load taught by Northwestern professors within the prisons’ walls. On November 14, 2023, the inaugural cohort of NPEP students at Stateville graduated from the program, making history as the first incarcerated students in the United States to earn a bachelor’s degree from a top ten university as ranked by U.S. News and World Report. This piece is a collection of personal reflections from currently enrolled NPEP students, who were asked to answer an open-ended prompt: “What does NPEP mean to you?” Students were encouraged to respond in any way they saw fit, and the essays included here represent various and varied takes on the simple question. Thomas Gordon, Justin Foster, and Scott Sanders reflect on the application and enrollment process of NPEP and the opportunities the program has given its students. Meanwhile, Juan Garcia and Brandon V. Wyatt write more generally about the importance and intersections of education and abolition. Bookending the collection, Tony Triplett and Giovanni Rios vividly describe NPEP as not just a program, but a lifesaving endeavor
Preventive Transparency in Third-Party Litigation Funding
No full textFor years, efforts to comprehensively regulate third-party litigation funding have been unsuccessful. But bills requiring mandatory disclosure are being introduced in Congress, and the Advisory Committee for Civil Rules has finally agreed to take up the issue. By grounding the discussion of third-party litigation funding in both the broader civil procedure and professional responsibility scholarship, this Article identifies an easy, uncontroversial reform to preventively address the categorical concerns raised by the practice. The primary contribution is a doctrinal intervention, identifying how legal ethics are an integral part of federal civil procedure and then drawing out the implications for third-party litigation funding transparency. The policy upshot of anchoring the analysis in legal ethics is that at minimum, litigants must disclose, in camera, both the existence of any third-party litigation funding agreements and provisions giving any control over the litigation to the funder. While the framework and resulting recommendation are modest—a first step based on a close study of where the law already is, not what it could or should be as a matter of first principles or other policy considerations—their effects should be significant, highlighting what is necessary to conform current practices to the federal judicial disqualification statute and several nationally uniform professional-conduct rules while breaking the existing policy stalemate
First Amendment Exceptions to Otherwise Valid Laws: A Doctrinal and Meta-Doctrinal Perspective
No full textWhen do the First Amendment’s Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases––such as United States v. O’Brien and Employment Division v. Smith—insist that First Amendment exceptions should be rare.
In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to First Amendment exceptions as as-applied challenges, which the Supreme Court purports to welcome in other contexts, and elucidates the role of “severability” principles in making as-applied challenges possible. Insofar as as-applied challenges are unavailable, the Article argues, applicable doctrine necessarily relies on facial challenges to protect First Amendment rights. Second, the Article conducts a doctrinal survey of judicially mandated exceptions under both the Free Speech and Free Exercise Clauses and highlights the diverse variety of tests that determine when claims to exceptions can succeed. The survey confirms that First Amendment exceptions are indeed exceptional, though not anomalous. It additionally establishes, however, that facial challenges are the more common mechanism for protecting First Amendment rights––a conclusion contrary to the Supreme Court’s frequent admonition that facial challenges should be rare and disfavored. Third, the Article probes beneath the surface of current doctrines authorizing First Amendment exceptions and generates insights about the nature of First Amendment rights and the diverse interests that those rights protect. Based on variance in the Supreme Court’s receptivity to claims to First Amendment exceptions, the Article draws provocative conclusions about which underlying interests the Justices view as more and less deserving of judicial protection. Fourth, the Article exposes flaws in the Supreme Court’s reasoning in designing and applying frameworks authorizing First Amendment exceptions in two recent leading cases, 303 Creative LLC v. Elenis under the Free Speech Clause and Tandon v. Newsom under the Free Exercise Clause. Overall, the Article enriches previous understandings of how exceptions do and should fit into a complex ecosystem of First Amendment rights and interests
Due Diligence Obligations over State Economic Entities in International Investment Law
No full textThe growing importance and sophistication of State capitalism and associated implementation of governmental policies through State economic entities, such as State-owned banks, State-owned enterprises, monopolies, and other entities close to the government, has given rise to a perception that existing international law rules are inadequate to effectively accommodate the activities of such entities. Sole reliance on customary international law principles of attribution has proven particularly problematic where governments maintain links with their economic entities that create a risk of the latter being used as conduits for governmental action. Such links may exist in a variety of forms beyond mere ownership, such as voting rights, appointment powers, the occupation of board seats by governmental ministers, private firms’ managers’ concurrent governmental posts, the imposition of governmental oversight committees within firms, coordination of economic activity in a given industry through chambers of commerce composed of former governmental ministries, overlapping board membership amongst private and State firms, and other means of directly influencing such entities beyond general regulation. This opaque relationship between the government and State economic entities may allow governments to circumvent international law obligations by channeling acts through those entities and casting such acts as private economic activity not attributable to the State. States are increasingly elaborating primary rules to overcome the perceived risks associated with State capitalism, most prominently in modern preferential trade and investment agreements. While varying in content and scope, these rules generally hold States accountable for the activities of their State economic entities by requiring the State to ensure that such activities be in compliance with the State’s treaty obligations. In this regard, they resemble classic international law standards of due diligence. Commentators and tribunals, however, have struggled in construing these provisions on State economic entities and how they interact with underlying attribution principles. This paper considers to what extent these provisions are characterized by the due diligence standard of international law. It argues that they provide a flexible means of regulating the activities of State economic entities without regard to whether their acts would be attributable under secondary attribution rules. Requiring States to exercise due diligence over their State economic entities thus addresses the perceived risks arising out of the closeness of those entities to the State without the need to make the State fully responsible for all their actions in all scenarios
Who Gets Remembered? Structural Barriers in the National Register of Historic Places
No full textThis article examines the systemic barriers within the National Register of Historic Places, established under the National Historic Preservation Act of 1966, that have contributed to the underrepresentation of marginalized communities in historic preservation. Despite the United States’ diverse cultural heritage, only an estimated 3% to 10% of sites listed on the National Register reflect histories associated with racial and ethnic minority groups. Through a qualitative analysis of legislative history, federal regulations, nomination processes, and governance structures, this study identifies how key criteria such as “significance” and “integrity” have reinforced exclusionary practices. These criteria consistently prioritize architectural and tangible heritage over lived experiences, cultural landscapes, and communal histories. Additionally, this research explores the role of State Historic Preservation Offices, federal decision-making bodies, and professional norms in shaping preservation outcomes, revealing systemic biases in leadership, funding distribution, and procedural accessibility. One critical limitation is the lack of comprehensive data collection and transparency, which hinders efforts to measure disparities and implement reforms. This article argues that addressing these structural inequities requires broadening definitions of significance, reconsidering integrity standards to reflect the realities of displacement and adaptation, increasing diversity in preservation leadership, and expanding financial and technical support for underrepresented communities. By critically examining legal frameworks and institutional practices, this study underscores the need for transformative reforms to ensure that historic preservation more equitably reflects and protects the full spectrum of American history
Bridging The Rural Justice Gap: A Scalable Solution Rooted in Clinical Legal Education
No full textThe rural justice gap significantly impacts child welfare legal representation, exacerbating the challenges families face when navigating juvenile courts in rural America. Attorneys in these communities frequently encounter geographic isolation, limited access to specialized training, professional burnout, and inadequate resources, all of which hinder effective advocacy for vulnerable children and families.
This article argues that clinical legal education, when paired with structured post-graduate training and multidisciplinary consultation, offers a replicable model for addressing the rural attorney shortages in juvenile court advocacy. The Nebraska Children’s Justice and Legal Advocacy Center (NCJC) illustrates how this model can be designed and scaled to meet the needs of other jurisdictions. The NCJC combines a law school clinical program, training future attorneys as Guardians ad Litem, with a post-graduate fellowship that enhances the competencies of all practicing rural attorneys in child welfare law. Central to this model are experiential learning, structured mentorship, interdisciplinary collaboration, and reflective practice, each grounded in trauma-informed principles.
Empirical evaluation data indicates that NCJC has significantly improved attorney preparedness, increased sustained commitment to juvenile advocacy, and expanded rural communities’ access to skilled representation. This framework offers a replicable, evidence-based solution that jurisdictions nationwide can adopt, bridging critical gaps in rural justice and ensuring that geography no longer determines the quality of justice available to children and families