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The Need to Make Clinical Teaching Mandatory as Part of the Experiential Methodology to Prepare Students for the Practice of Law in the Twenty-First Century
No full textTaking Away the Bad Guy’s Gun: Designing ConstitutionalMeasures to Prevent Dangerous Individuals from Acquiring Firearms
No full textThe Line Between Justice and Abuse: A Critical Review of StateRICO Statutes in Drug Prosecution
No full textConflicts of Law and the Abortion War Between the States
No full textOn the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court agreed to hear the Dobbs case, at least twenty-four states have enacted statutes or state constitutional provisions restricting abortion access, while at least sixteen states have adopted new legal regimes that explicitly seek to protect the right to an abortion.
These partisan and geographic divides create perhaps the biggest set of nationwide conflicts-of-law problems since the era of the Fugitive Slave Act before the Civil War. Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty, creating potential constitutional and federal preemption questions, state v. state conflicts of law issues, and new concerns based on various forms of private regulation related to abortion access.
This Article seeks to provide a comprehensive survey of the current state of the law with regard to how such conflicts-of-law questions might be resolved in the abortion context. Part One briefly surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part Two discusses potential constitutional challenges to the extraterritorial application of these abortion statutes. If statutes criminalize or impose civil liability on the actual pregnant person seeking the abortion, such statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state healthcare providers or other actors, those statutes may be vulnerable to a challenge under theCommerce Clause. Part Three turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act or the Emergency Medical Treatment and Active Labor Act. Part Four addresses the question of whether states can impose civil liability on out-of-state acts or actors—even beyond the right to travel and Commerce Clause concerns—focusing on the classic conflicts-of-law doctrines of jurisdiction, choice of law, and judgment recognition. Finally, Part Five considers the activities of private actors as sources of regulatory authority that create conflicts questions. Here, we discuss the degree to which a state can prevent employers from covering abortion-related expenses as part of their health insurance plans, the privacy concerns that arise when private actors collect data that might be used in criminal prosecutions or civil suits regarding abortions, and the possibility that private religious groups might invoke the First Amendment to claim exemptions from state anti-abortion laws
Good Faith Chapter 11 Filings Require the Debtor to Show Valid Reorganization Purpose and Financial Need for Bankruptcy
No full text(Excerpt)
Section 1112 of title 11 of the United States Code (the Bankruptcy Code ) enumerates a non-exhaustive list of sixteen factors justifying dismissal of a bankruptcy case for lack of good cause, but bankruptcy courts have the authority to consider other factors as they arise and use equitable powers to reach appropriate results in individual cases. Bankruptcy courts have determined that good faith is a requirement to remain in bankruptcy, and bad faith is among the reasons to dismiss. To date, no court has adopted a universally accepted definition of good faith.
In recent cases, courts have used their discretionary powers liberally, devising new tests for determining whether a chapter 11 filing is in good faith. In 2023, the Third Circuit held that a court analyzing whether a chapter 11 filing is in good faith must consider whether the petition serves a valid bankruptcy purpose, which turns on whether the debtor demonstrates financial distress. The U.S. Bankruptcy Court for the Southern District of Indiana adopted this test but required a financial need for chapter 11 protection to establish good faith. In the Third and Seventh Circuits, where a debtor is financially healthy, either because it is solvent or has secured a funding agreement indemnifying it from the consequences of litigation, it appears that a debtor cannot have a financial need for chapter 11 protection, and therefore no valid reorganizational purpose
This memorandum examines what a debtor must show to establish a good faith filing and survive a motion to dismiss considering the court’s holding in Aearo. Part I focuses on the requirements for a valid reorganizational purpose and financial need. Part II contrasts this test with those used by the Second and Fourth Circuits
Bridging Silos: Environmental and Reproductive Justice in the Climate Crisis
No full textThe climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal community.
This Article makes two interventions into existing legal scholarship. First, the Article identifies an intersectional nexus of hazard between environmental and reproductive justice, which is especially acute for women of color living in under-resourced communities. It argues that environmental injustices in the context of the climate crisis undermine reproductive justice. Second, the Article explores how the movements can align strands of their advocacy and suggests how advocates can leverage various legal and policy strategies to mitigate these intersectional injustices. It argues for a ground-up approach based on community power-building and interdisciplinary cooperation, which can inform legal and policy solutions at scale. Collective action to foster health and dignity has never been more urgent, as climate change harms escalate, maternal health deteriorates, and the Supreme Court issues decisions shredding reproductive autonomy and circumscribing environmental regulatory authority
Overcoming Obstacles: Insights From Black Women Prosecutors
No full textIn celebration of Black History Month, the IIP hosted a virtual panel highlighting the leadership of Black women prosecutors in the criminal justice reform movement.
Professor Angela J. Davis moderated a conversation between our esteemed panelists on defining moments of their journeys to reform the criminal justice system, how they’ve navigated challenges around racism and sexism as prosecutors, and how to build more inclusive cultures within prosecutors’ offices and throughout the legal profession
The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP
No full textSixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.
With the benefit of material obtained from numerous archival sources, this Article argues that Kalven’s categorization of Patterson (and the three other rulings by the Supreme Court of the United States that it ultimately took to ensure Alabama’s compliance with the 1958 decision) was mistaken. Instead, the litigation was designed and intended to put the NAACP out of business (which, in Alabama, it did for eight years).
On June 1, 1956, the injunction preventing the NAACP from doing business in the state was secured by Alabama’s Attorney General John M. Patterson from Montgomery County Circuit Court Judge Walter B. Jones. This Article is narrowly focused on the two years leading up to, and the first few months following June 1, 1956, and is part of an extensive research project focused on the history of this protracted litigation.
Ultimately, Alabama’s injunction led to an effort to compel the NAACP to turn over its Alabama membership lists to the Attorney General. To borrow and only slightly change Jason Robards’s famous line in All the President’s Men, nothing was riding on this litigation except the First Amendment, which guarantees the right to peaceably assemble, and the future of the country
