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Maybe We Don\u27t Need to Find Waldo After All: Why Preventing Voter Fraud is Not a Compelling Interest
Get PDFThis Note takes the position, counter to established jurisprudence, that the prevention of voter fraud is not a compelling state interest that can independently justify restrictions on the right to vote. It will seek to do so through two mechanisms. First, it will argue that the right to vote is unjustifiably treated differently than other rights by courts, using a comparison to the Second Amendment right to bear arms. Second, it will argue that current jurisprudence holding the prevention of voter fraud to be a compelling interest misunderstands the inherent means-ends distinction in voting rights standards. The prevention of voter fraud is not an end in itself, rather it is a means designed to serve the overarching end of election integrity. Finally, the Note will account for electoral policy solutions that can help address election integrity without overburdening citizens’ voting rights.
This abstract has been taken from the author\u27s introduction
Ducking the System: Examining the Efficacy of Bounty Hunting Statutes that Stifle the Free Exercise of Constitutional Rights
Get PDF[...] This Note examines the legal hurdles surrounding the novel “citizen deputy” statute—including its structure, the attendant legal doctrines, and its broader implications—using SB 8 as a test case for the analysis. While SB 8’s prohibition is no longer unconstitutional, the divisive history of the abortion debate that gave rise to the structure sheds light on the reasons why states may be motivated to infringe on constitutional rights and whether such efforts can succeed in practice. SB 8 is thus a useful test case to examine the structure and its potential for reuse. For purposes of this analysis, this Note will examine SB 8 through a pre-Dobbs lens, focusing on the period when the statute’s prohibition was unconstitutional.
Part I examines the statute’s language, focusing on the provisions designed to evade constitutional review, thereby presenting SB 8’s abstract “citizen deputy model” as a structure that other states might repurpose to infringe on rights. Part II examines the current doctrinal posture of SB 8’s three “shields”—standing, sovereign immunity, and the state action doctrine—identifying questions the Court has answered thus far and flagging those that remain outstanding. Notably, Part II analyzes a key doctrinal development produced by SB 8 litigation in the merits decision Whole Woman’s Health II. Part III examines the methods by which parties whose free exercise of rights are burdened by the structure would mount a challenge to test its constitutionality on the merits. Specifically, Part III will examine the selection of the proper plaintiffs and defendants and apply the three “shields” as they currently stand to those potential plaintiffs and defendants, using SB 8 as a test case for the analysis. Part IV returns to the doctrinal questions the Court has not yet answered and proposes a rule therefor. Part IV also examines the possible broader implications of the citizen deputy structure and whether such implications should inform the Court’s thinking while resolving these doctrinal questions.
This abstract has been taken from the author\u27s introduction
Checking Out Indefinitely: Supporting Survivors of Sex Trafficking Alongside Training and Education for Lodging Employees
Get PDFThere are roughly five million victims of sex trafficking in the United States. Over the course of a decade, over 3,500 instances of human trafficking involved a hotel or motel. Traffickers are relying on unaware lodging establishment employees, as well as complicit employees and managers, to successfully carry out their crimes. Despite the vital role the lodging industry plays in human trafficking, only seven states have implemented mandatory training for hotel and motel employees. This Note posits that the implementation of mandatory training and education programs for employees of lodging establishments could increase awareness and responsiveness to human trafficking, thus increasing reporting of and ultimately resulting in a decrease in future instances and victims of human trafficking. This Note further argues that beyond this recently implemented legislation, Virginia needs to allocate resources to support survivors to combat falling into patterns of homelessness, continued prostitution, and substance addiction and dependence
Striving for Resilience in Virginia\u27s Transportation Sector
Get PDFTo help address the need for increased resiliency in the Commonwealth’s transportation sector, and in furtherance of the goals set forth in the VDOT [Virginia Department of Transportation] Resilience Plan, this white paper highlights green infrastructure and natural and nature-based features as ways to increase resilience for transportation infrastructure and mitigating impacts from climate change. Additionally, this paper describes potential methods of incorporating resilient best practices with respect to Virginia’s transportation infrastructure and planning decisions.
This abstract has been taken from the paper\u27s Section I, Background
#MeToo and the Process That\u27s Due: Sexual Misconduct Where We Live, Work, and Learn
Get PDFThe #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of the confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion, there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply depending on where the sexual misconduct takes place. This Article will discuss these inconsistencies and will address the issue of whether these differences can be justified. In the end, this Article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due
Recovering the Lost General Welfare Clause
Get PDFThe General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for national purposes.
This Article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, and pandemic disease. It is only our superficial ideological commitment to enumerationism—the doctrine of limited enumerated powers—that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of Founding Era views on federalism
Private Rights of Action in Privacy Law
Get PDFMany privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of action can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform
The Partnership Mystique: Law Firm Finance and Governance for the 21st Century American Law Firm
Get PDFThis Article identifies and analyzes the de facto and de jure end of lawyers’ exclusivity over the practice of law in the United States. This development will have profound implications for the legal profession, the careers of individual lawyers, and the justice system as a whole.
First, the Article argues that various financial products that have recently flooded the legal market are functionally equivalent to investing in and owning law firms and create all the same governance challenges as allowing nonlawyers to directly own stock in law firms.
Second, the Article analyzes Arizona’s groundbreaking legalization of nonlawyer participation in law firms, effective January 1, 2021, and the effects it will have nationally.
Third, the Article explains that the drawbacks of liberalizing the practice of law are rooted in the conception of shareholder primacy, a bedrock principle of corporate law. This principle would encourage lawyers to prioritize profit maximization for the benefit of their investors over the interests of clients and the courts.
Fourth, despite the apparent dangers, there are reasons to celebrate the end of the era of the legal practice as the exclusive purview of lawyers. Lawyers’ monopoly on the practice of law hinders inclusion and diversity and, counterintuitively, undermines practitioners’ dignity and well-being.
Fifth, the apparent dangers of liberalization can be avoided if states follow Arizona in allowing nonlawyer participation in the practice of law but condition it on organization as an Alternative Business Structure with certain professional responsibilities. More specifically, the Article proposes a type of “benefit entity,” which I call “legal benefit entity” (LBE). LBEs will be required to privilege the interests of clients and the courts over those of investors. The final Part explains what an LBE should look like
