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Mass Shootings and Mass Torts: New Directions in Gun Manufacturer Liability
No full textVol. 41:382Mass shootings are a particularly gutting form of American gun
violence. The statistics are staggering to the point of numbing, with the issue’s
intensity and timeliness enforced day after day, round after round. Gun
manufacturers occupy a vital role in the chain of events ending with mass
shooting headlines, yet they face little liability for their involvement because
of a 2005 protective federal statute. This Note argues that there may be
opportunity for change. Specifically, this Note offers evidence that once strong
statutory protections may be weakening and presents strategies for
creating previously unimaginable mass tort claims against gun
manufacturers
Cardozo's Living Constitutionalism in Comparative Context
No full textVol. 35:3Although he served as an Associate Justice on the United States Supreme Court from 1932-1938, the source of Benjamin Cardozo's preeminence has generally been his contributions to common law jurisprudence and his theories of common law judging. This essay argues that several of Cardozo's unpublished writings suggest he also developed a significant constitutional theory in dialogue with continental-and particularly French-legal thinkers
Affective Reproductive Legality: Navigating the Borderland of Life and Death
No full textVol. 35:1Birth and death are traditionally viewed as antithetical moments. They
divide our relations in the world: from their instantaneous creation at
the point of birth to their dissolution at the point of death. From partner
to widow, from expectant to grieving parent, in confronting the life
death threshold, we become someone other. This conventional view
presupposes a clear demarcation between life and death, suggesting
that beyond this threshold, our relationships experience a definitive
change. Yet, while our relationship with the deceased is physically
taken from us, could our affective bond with them not only hold firm
but also be helped to flourish? If so, what might be the tradeoff of
blurring the borderland between life and death?
This Article considers these questions as a matter of law, particularly
in the context of reproductive rights. It assesses and juxtaposes the
jurisprudence surrounding two reproductive experiences where birth
and death meet: stillbirth and posthumous assisted reproduction. Both
delivering a stillborn child and conceiving a child posthumously using
artificial reproductive technologies challenge accidentally or
intentionally the life death borderland, posing a dilemma for
policymakers regarding how to regulate such scenarios. Examining the
question centered in this Article, I argue, could inform policymakers
contemplating the regulation of these experiences
Sex/Gender Segregation: A Human Rights Violation, Not a Protection
No full textVol. 35:1This Article argues that human rights law should be interpreted to
prohibit sex/gender segregation in all contexts, including education,
employment, bathrooms, prisons, and sports, because of the gendered harms it
produces. Prohibiting sex/gender segregation would constitute a departure from
the current approach of international and regional human rights mechanisms,
which has been to discourage sex/gender segregation in education and
employment, require it in bathrooms and prisons, and devote little attention to
it in other contexts, such as sports. This departure is needed because sex/gender
segregation, no matter the context, perpetuates and reinforces gender
stereotypes to the detriment of everyone, especially women and LGBTI
persons. Since international law requires States to modify harmful gender
stereotypes and eliminate wrongful gender stereotyping, States have an
international obligation to eliminate sex/gender segregation regardless of the
context in which it occurs. Common arguments in favor of sex/gender
segregation, arising out of protection, choice, and culture, do not prevent
human rights mechanisms from finding that international law prohibits
sex/gender segregation, but these concerns should be taken into consideration
when proceeding toward the elimination of sex/gender segregation.
Implementation of this prohibition on sex/gender segregation will need to be
gradual and context-specific
Rules vs. Stories: Weighing the Ancient Athenian Approach to Procedural Justice
No full textVol. 35:3In his 2006 article," Presumption of Innocence or Presumption of Mercy?: Weighing Two Modes of Justice," James Whitman contrasts the focus on rights for the innocent in the American criminal justice system with the concern for the humane treatment of the guilty in European systems in the inquisitorial tradition. I teach this article in my criminal procedure classes not to debate whether the European approach is better, but because it invites a conversation about what we should value in a criminal justice system and to what extent our system does (or in most cases does not) live up to our values. As Whitman states in his conclusion," The point of comparative law is not to engineer wholesale institutional transplants, but to broaden the mind-to help us escape the conceptual cage of our own tradition." It is in this spirit that I want to examine the classical Athenians' approach to criminal trials.
A few words of background may be helpful for those unfamiliar with Athenian law. 3 Participation in the popular court system was largely limited to male citizens. The system was run by amateurs; there was typically no state prosecutor. In what the Athenians called private cases (dikai), the victim (or his family in the case of murder) brought suit. In addition to homicide, private suits included some forms of battery and theft. Public cases (graphai) could be brought by any male citizen acting as a volunteer prosecutor, though in practice prosecutors in public cases tended to be victims or otherwise interested parties. Although the Athenians did not have a distinct legal category of crime, they did have a cultural notion of crime as behavior affecting the community at large." Criminal" behavior could be prosecuted through either a private or public suit, depending not only on the nature of the charges but also in some cases on the prosecutor's goals
The Founders' Common-Law Empire
No full textVol. 35:3The Northwest Ordinance of 1787 once had a sure spot in our constitutional canon. The New Deal Congress celebrated it as" one of the greatest civil documents of all time," in part because it marked" a complete change in the method of governing new communities formed by colonization." Rejecting the European model of" second-class colonies," the Ordinance instead framed an" empire of liberty" that treated old states and new territories as equals. That view still has prominent defenders: Professor Akhil Amar" celebrates" the Ordinance's" strong anti-imperialist thrust," while Judge Sutton would put it" on a Mount Rushmore of American laws.
War Reparations: The Case for Countermeasures
No full textWho pays for the terrible destruction wrought by war? This problem is far from new, but it is currently receiving renewed attention as a result of the war in Ukraine. The options currently available to states that are the victims of unlawful wars in the postwar era are limited. For Ukraine, some have proposed addressing this shortfall by seizing frozen Russian sovereign assets, and both the United States and Canada have passed legislation permitting just that. European officials have considered a similar proposal, but they have thus far rejected them as too legally risky. Indeed, such plans run afoul of the longstanding international law doctrine of sovereign immunity. Put simply, they attempt to cure one international legal violation by engaging in another. In this Article, we offer another way forward for Ukraine and any other state that might find itself in this situation in the future: Ukraine may deploy what is known as the international law doctrine of countermeasures to freeze Russian sovereign assets in response to Russia's injurious and illegal conduct against it. We argue that frozen assets need not be returned to Russia at the close of the war as long as Russia has failed to pay reparations. That is because the failure to pay reparations is itself an unlawful act for which countermeasures (continued freezing of assets) may be kept in place even if the unlawful war has ceased. Moreover, other states may join Ukraine, putting in place collective countermeasures, sometimes called "third-party" countermeasures. However, we argue against using countermeasures doctrine to simply seize Russian assets; such seizures would not properly qualify as countermeasures and thus would violate international law. This approach to countermeasures, if adopted, could have implications beyond Ukraine, extending not only to future war reparations but also to international responses to cyber operations, human rights violations, or violations of environmental law obligations. Indeed, the challenge of securing reparations for Ukraine must be addressed not as a oneoff problem but as a systemic one. We should therefore seek a solution that will benefit not just Ukrainians but other similarly situated actors in the future. This is yet another reason that existing ad hoc legislative proposals to seize Russian assets are inadequate: They might provide money to Ukrainians now, but they will undermine the international legal system while doing little to help future victims. Keeping the larger picture in view is not only important as a matter of equity and justice. It is also in the best interests of Ukraine, which must maintain unprecedented levels of global support for its ongoing defensive actions and efforts to hold the architects of this illegal war accountable for the extraordinary harm they have done. This Article's proposal for institutionalizing collective countermeasures meets this challenge, offering a way to reinforce the reparations obligation in circumstances beyond the present conflict
The Education Justice
No full textThe article centers on Justice Sandra Day O'Connor's profound impact on education and civic engagement, as recounted by Judge Michelle Friedland. It explores O'Connor's commitment to improving educational opportunities, particularly for marginalized communities, and her pioneering efforts in civic education through initiatives like iCivics. It underscored the importance of education in fostering democratic citizenship and dismantling gender stereotypes
NONDELEGATION, ORIGINAL MEANING, AND EARLY FEDERAL TAXATION: A DIALOGUE WITH MY CRITICS
No full textProponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings. This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century
Lawyerless litigants, filing fees, transaction costs, and the federal courts: Learning from scales
No full textTwo Latin phrases describing litigants—pro se (for oneself) and in forma pauperis (IFP, as a poor person)—prompt this inquiry into the relationship between self-representation and requests for filing fee waivers. We sketch the governing legal principles for people seeking relief in the federal courts, the sources of income of the federal judiciary, the differing regimes to which Congress has subjected incarcerated and nonincarcerated people filing civil lawsuits, and analyses enabled by SCALES, a newly available database that coded 2016 and 2017 federal court docket sheets. This Essay’s account of what can be learned and of the data gaps demonstrates the challenges of capturing activities in federal lawsuits and the burdens, unfairness, and inefficiencies of current federal court waiver practices