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Crisis Convergence
Full text linkProgressive jurists and legal scholars have called the Supreme Court’s doctrine of colorblind constitutionalism that dismantled affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard (SFFA) a crisis for constitutional democracy. However, scholars have not yet tended to students, particularly students mobilized for racial justice, to understand their interpretation of this race-evasive ideology and what insights those mobilized students might offer in this pivotal moment. Given the fact that a small coalition of dissenting conservative jurists, scholars, and mobilized students—the Federalist Society—spent decades crafting the doctrine, scholarship, and resources that drive colorblind constitutionalism and originalist doctrine, it seems that one way out of this crisis would be for progressive scholars to pursue a similar approach. This Essay intervenes by describing how mobilized students have demanded race-conscious laws despite the SFFA majority’s race-evasive ruling, highlighting where those demands converge with the interests of progressive jurists and legal scholars working to protect race-conscious constitutionalism. To do so, this Essay provides a qualitative empirical study identifying converging interests in the SFFA dissenting opinions, the legal scholarship criticizing the SFFA opinion, and the grassroots student campaigns demanding race-conscious laws in the wake of SFFA. The Essay introduces the concept of “crisis convergence” to describe the common interests and values at the intersection of constitutional change, racial justice, and education. Crisis convergence builds on critical race theorist Derrick Bell’s concept of interest convergence and divergence—the idea that Black communities win constitutional change, particularly in the realm of education, only when their interests converge with those of their privileged, white counterparts. This concept helps explain why mobilized students of color and progressive legal scholars should leverage their common ground to develop a race-conscious, rebellious constitutionalism to turn the tides of conservative backlash. The Essay concludes that some of the largest constituencies of mobilized students share a broad convergence point with the SFFA dissent on the pursuit of the self-determination of racially isolated students of color, but also that those same students diverge from progressive scholars on belonging as a race-conscious end. Both the convergence and divergence present helpful insights for progressive scholars to begin to co-construct progressive constitutional theory with broad-based support from impacted students and progressive jurists
Dream a Little Dream of Licensing: Jazz and the § 115 Compulsory Music Reproduction License
No full textThe compulsory music reproduction license codified at 17 U.S.C. § 115 allows anyone to obtain the right to record another version of, or “cover,” a previously published musical work. Invoking the compulsory license, however, comes at a dramatic cost. Under § 115(a)(2), the licensee cannot copyright any original musical material they compose for the cover without express permission from the underlying copyright owner, even if that material would otherwise be copyrightable. This limitation gravely harms jazz music, as jazz relies on dynamic recompositions of preexisting music. Jazz musicians depend on compulsory licenses to record the reinterpretative covers essential to the genre, but are barred from copyrighting the original, expressive solos and arrangements that they record as part of their covers. This prohibition on copyrightability means jazz musicians do not receive royalty compensation for composing their solos and arrangements when their recordings are performed, reproduced, distributed, or licensed. This also allows third parties—often major music publishing companies—to transcribe and sell jazz arrangements and solos without compensating their performers or composers. This Note addresses fundamental flaws in the compulsory licensing regime and proposes a novel statutory amendment allowing jazz musicians to “dream a little dream” of licensing
Preclusive Jurisdictional Dismissals
Full text linkEvery litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still be fruitless and justly precluded. However, this pragmatic approach, and the rich body of scholarship accompanying it, vanishes in cases where the rendering court declares that it lacks jurisdiction and does not attempt to decide the case on the merits. Courts confronted with the preclusive effect of such jurisdictional dismissals default to the longstanding view that such dismissals carry no preclusive effect on relitigation on the merits. This Note challenges this bright-line rule by arguing that where a jurisdictional dismissal is predicated on a determination that is intertwined with the merits, the values underlying preclusion should take priority
Police Misconduct: Combatting the Complicity Crisis
Full text linkThis Comment explores the current state of police reform in the city of Chicago, with a special focus on the various oversight agencies currently in force. Chicago has a long history of police misconduct, and the city has tried to make changes over the years to restore the community’s trust in policing. The police reform movement became especially prevalent in recent years following the fatal shooting of Laquan McDonald by a Chicago Police Officer in 2014. This Comment will show why the current mechanisms in place are insufficient to bring the needed change to the Chicago Police Department, and that the Chicago Police Department has shown time and time again they are unable to police themselves. While there have been some effective changes to the city’s policing efforts in recent years, considerable room for improvement remains.
This Comment will evaluate some of the recent measures taken to change the Chicago Police Department, specifically looking at measures targeted at changing the culture of the Chicago Police Department by increasing transparency and accountability. These measures include mandatory body-camera footage and a ban on officers being affiliated with extremist groups. This Comment will explore and evaluate the effectiveness of these changes and how they could be further enhanced. This Comment will also propose additional solutions that Chicago could consider to increase police accountability and transparency and thus improve overall officer performance. This includes using more objective tools to measure police officers’ day to day performance, which can be done using tools similar to those being used in New Orleans and in Miami. This Comment will conclude with additional policy considerations and measures for enforcement, specifically focusing on ways to incentivize more responsible policing
Justice Ginsburg\u27s Criminal Justice Legacy: Fair Tribunals, Fair Punishment
Full text linkScholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in important decisions extending the rights to a jury trial, to an impartial tribunal, and to counsel. She also voted to shield juveniles and people with mental impairments from excessive punishments and to extend protections to property owners who faced civil penalties due to criminal wrongdoing. As our review aptly shows, Justice Ginsburg’s work in criminal justice lived up to the ideals of the Torah passage that she displayed behind her office chair as a Justice, which read “Justice, justice shalt thou pursue . . . ” Rabbinic scholars interpret the passage as a command for judges to provide meaningful hearings for those who seek justice, that judges should act with impartiality toward all who come before them, and should temper strict justice with mercy. She likely pursued these principles in other areas of law as well—the commands for meaningful and impartial justice do not apply exclusively to criminal judges. Nonetheless, the principles arguably apply more poignantly in the criminal justice area which, unlike other areas of law, strives to provide heightened constitutional safeguards while also permitting severe punishments.
Our review of her five-vote majority criminal justice jurisprudence also reveals three interesting facts. First, she is counted in a surprisingly high number of five-vote majorities in criminal justice cases during her tenure on the Court. Second, we found a remarkable number of landmark criminal decisions in which she cast a vote in a five-vote majority. While her votes do not make her a “swing vote” in the sense of being the median justice who swayed the majority, her decisions nonetheless made the outcomes in these close cases possible. The fact that so many landmark cases are five-vote majority cases also means they may be most vulnerable to reconsideration in the future. Third, Justice Ginsburg, considered by most as part of the progressive wing of the Court, did most often side with the defendants in the criminal justice area, but not always. Notably, the few majority or concurring opinions she produced in these cases tend to be those in which she sided with the government. She would have been assigned to write the majority opinions, but the concurring opinions she likely chose to write to explain votes that some may have thought out of step with her usual positions reading constitutional rules more expansively. Thus, the novel empirical approach presented in this Article enables us to appreciate Justice Ginsburg’s true criminal justice legacy of providing meaningful procedural protections to criminal defendants, including the right to counsel, to a jury trial, and the right to an impartial tribunal, as well as protecting children, people with mental impairments and property owners from excessive punishment. By exploring these themes in her critical five-vote majority jurisprudence, the Article sheds new light on the justice ideals of this iconic jurist and shows her to have lived up to the Torah command to pursue justice
Toward a Perpetual Practice of Affirmative Action
Full text linkDespite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited duration. This requirement was a point of contention in the SFFA case, where Chief Justice John Roberts criticized the lack of a precise end point in the affirmative action programs of Harvard and the University of North Carolina.
To navigate the end point problem, this Essay proposes shifting the focus of affirmative action from achieving diversity to correcting racial bias in admissions processes. Educational institutions can create race-conscious programs that do not require a fixed end point by emphasizing the need to eliminate bias rather than simply achieving a diverse student body. This Essay also incorporates a feminist epistemological approach to understand the subjective nature of admissions processes. It critiques the belief that standardized tests and grades are objective measures, arguing that biases influence all assessments. Drawing on the work of feminist scholar Donna Haraway, this Essay suggests that universities must adopt practices that account for racial bias in their admissions processes, recognizing how measures such as standardized tests may favor certain racial groups and taking steps to correct these biases through race-conscious policies.
This Essay concludes that affirmative action remains essential for achieving social justice and addressing racial biases in higher education admissions. The logical end point requirement should not hinder the effectiveness of affirmative action programs. Instead, institutions should focus on continuously assessing and correcting their admissions processes to ensure equality in admissions
Existing Together from the Beginning: Freedom to Contract and Black Mutual Aid
Full text linkIn a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which purports to prohibit “all discriminatory and illegal [racial] preferences” and directs federal agencies to enforce the order through investigating the private and nonprofit sectors.
The legal attack on race consciousness in charitable work has distinct implications from the Supreme Court’s rollback of other efforts to limit race-conscious state action. The attack on race-conscious charity is grounded in one of the major historical civil rights statutes, 42 U.S.C. § 1981, which governs private contracting. Thus, the new frontier in affirmative action litigation raises questions regarding the law’s role in regulating voluntary private action to address racial justice problems, in particular through philanthropic action.
Relying on § 1981 to prohibit race-conscious charitable work is deeply ahistorical, conflicting with both the purpose of the statute and how race-conscious giving was understood at the time the Civil Rights Act of 1866 was passed. Under that statute, which was the precursor to § 1981, Black charitable work was both a legal and legitimate strategy for addressing the gap in economic provisions for Black citizens. Indeed, the Congress that adopted the Civil Rights Act encouraged mutual aid as an extralegal solution to address economic inequality resulting from the private market that the government failed to address. In addition to challenging the misuse of § 1981 to restrict race-conscious charitable giving, advocates seeking to continue race-conscious giving should consider returning to mutual aid, a strategy of pursuing social justice through collective philanthropic action. Both historically and today, mutual aid plays a critical role in offering alternative political visions and solutions to pressing racial justice problems
Towards a Federalism(s) Framework of Punishment
Full text linkFederalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.
This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system. The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual. This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and oversubscribing to carceral punishments. These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment. This framework leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of offenders while increasing public safety