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Toward Self-Determination in the U.S. Territories: The Restorative Justice Implications of Rejecting the \u3cem\u3eInsular Cases\u3c/em\u3e
Get PDFConservatives and liberals alike are increasingly calling for condemnation of the Insular Cases—a series of U.S. Supreme Court cases from the early 1900s, in which the Court developed the doctrine of territorial incorporation to license the United States’ indefinite holding of overseas colonial possessions. In March 2021, members of the U.S. House of Representatives introduced House Resolution 279, which declares that the Insular Cases should be rejected as having no place in U.S. constitutional law. Moreover, in 2022, Justice Gorsuch called for the Supreme Court to squarely overrule the cases.
For many, rejecting the Insular Cases is a long-overdue reckoning for U.S. colonialism. Nonetheless, some representatives and scholars from the U.S. territories have raised concerns about potential implications for existing local laws in the territories. Many of these local laws protect Indigenous territorial peoples from further colonial harms. If the proposed bill or Supreme Court’s overruling of the cases functioned to extend the U.S. Constitution in full to the territories, these laws may be found invalid under current constitutional jurisprudence.
This Article employs a contextual framework for Indigenous peoples to explore the nuanced restorative-justice implications of rejecting the Insular Cases. It emphasizes the varying perspectives of Indigenous peoples of the present-day U.S. territories, who would be most impacted by the measure. Finally, flowing from this restorative justice framework, this Article demands that any resolution to the Insular Cases forward the human rights principle of self-determination for Indigenous peoples—not mere equality
Interpreting the Administrative Procedure Act: A Literature Review
Get PDFThe modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law. This Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA. But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress. This approach best advances administrative law’s rule-of-law values such as predictability, reliance, stability, and the separation of powers
98th Henry M. Campbell Moot Court Competition: Final Round
Get PDFHenry Munroe Campbell was a distinguished lawyer who served as legal counsel to the University of Michigan\u27s Board fo Regents for several years.
Following Mr. Campbell\u27s death in 1926, his law partners met with then University of Michigan Law School Dean Henry M. Bates to discuss a fitting memorial. They decided to establish a case club competition to foster training for law students in appellate advocacy in his honor. The first Henry M. Campbell competition was held in the 1927-28 academic year.
A trust fund to finance the competition was established in 1927 and has been periodically augmented with gifts from Dickinson Wright PLLC. Each year, prizes are paid from the income of the trust fund to the finalists in the Henry M. Campbell Moot Court Competition. This year cash prizes will be paid to the top five finalists
Did the Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering the Legal and Ethical Landscape of Cryptocurrency Options in 401(k)s
Get PDFRegulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.
Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities— a problem largely unaddressed in academic, industry, or regulatory discourse.
This Article demonstrates how regulators’ needlessly paternalistic approach toward cryptocurrency options could disproportionately impact minority retirement savings participation. Applying the existing fiduciary framework and practical mechanisms that plan fiduciaries currently use would minimize cryptocurrency risk to participants without rewriting the rules governing plan administration. This Article also proposes a novel, scientifically supported method by which fiduciaries should convey retirement planning information to improve retirement outcomes for all: via non-traditional media
Policies for Expanding Hepatitis C Testing and Treatment in United States Prisons and Jails
Get PDFHepatitis C virus (HCV) is highly prevalent in United States prisons and jails. In prisons and jails, rates of infection are ten to twenty times greater than national levels. And, more than thirty percent of all people living with HCV in the United States will spend time in prisons and jails in any given year. Rates are especially high among people who inject drugs (PWID), a population whose members are also likely to move between carceral settings and the community. Thus, addressing HCV among incarcerated populations would have a significant effect on the virus’s transmission both in and out of confinement and is a crucial part of any HCV elimination strategy. Safe and effective HCV treatment is available. Direct-acting antivirals (DAAs) offered in an eight to twelve week course of oral treatment cure HCV in more than ninety percent of cases.
Widespread testing and treatment in prisons and widespread testing and treatment or linkage to community care in jails are essential public health approaches. But testing and treatment in confinement lags behind medical guidance and public health recommendations.
People incarcerated in prisons and detained in jails are entitled to adequate health care, and the U.S. Constitution prohibits deliberate indifference to their serious medical needs. In recent years, lawsuits filed by people with HCV in carceral facilities across the country have alleged violations of federal law for failure to provide DAA treatment. Although litigation results have been mixed, settlement agreements in states across the country have expanded HCV testing and broadened access to DAA treatment. These settlement agreements reflect a growing understanding that widespread testing and treatment is cost-effective, avoid the harmful health consequences of disease progression, and meaningfully reduce community transmission.
This paper recommends model policies for prisons and jails to expand HCV testing and DAA treatment. The policy recommendations draw from relevant settlement agreements and current medical guidelines, supplemented by input from public health experts, medical professionals, and advocates. The paper proceeds as follows:
• Part I describes the HCV epidemic in United States prisons and jails, the recent sea change in treatment protocols, and relevant clinical guidance and public health recommendations.
• Part II sets out the legal landscape, including governing federal law and judicial decisions interpreting that law in this context, and describes settlement agreements in class action lawsuits addressing DAA access.
• Finally, Part III offers model policies for prisons and jails to expand testing and treatment and to support successful outcomes for people with HCV in their custody
The Impact of Post-\u3cem\u3eDobbs\u3c/em\u3e Abortion Bans on Prenatal Tort Claims
Get PDFIn June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs abortion bans and restrictions will have on each type of prenatal tort claim. This Note explains the purposes of prenatal tort claims and supplies an up-to-date, nationwide survey of the recognition of these claims. It then provides empirical evidence demonstrating the politicized nature of prenatal tort claims and analyzes the ways that abortion bans will impact them. Finally, it outlines potential constitutional, tort law, and nonlegal solutions to Dobbs’s impact on prenatal tort claims
Flawless First Draft in Legal Writing: A Fantasy of the Uninitiated
Get PDFI recently received an email from a former student (now a public interest lawyer) who had just finished a major writing project. She wanted to thank me for introducing her to the psychologically liberating concept of “shitty first drafts.” Without it, she said, she probably would have never hit her deadline
Using ODR Platforms to Level the Playing Field: Improving Pro Se Litigation through ODR Design
Get PDFCourt-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost opportunities to resolve disputes. Existing ODR platforms seek to replicate in-person procedures, simplifying and clarifying steps where possible, but litigants without representation still proceed without experience, expertise, guardrails, or the ability to gauge risk or likely outcomes. Injecting ODR with a dose of data science has the potential to address many of these shortfalls. Enhanced ODR is unlikely to render representation obsolete, but it can dramatically reduce the gap between the “haves” and the “have nots” and, on some dimensions—where machines can outperform humans—next generation platforms may be a significant improvement
Mooting Unilateral Mootness
Get PDFSeveral situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness—when a defendant ends a lawsuit against a plaintiff’s wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness exceptions to limit such gamesmanship. These exceptions are based on vague standards, which do little to guide judges making mootness decisions. The result is that some cases are heard on the merits, while other, nearly identical ones are dismissed. Unilateral mootness fails as a prudential doctrine. It struggles to limit disparate outcomes, prevent defendant gamesmanship, or save judicial resources, and alternative solutions do not fully address these three problems. This Note argues that the best recourse is to scrap unilateral mootness completely. Barring a settlement, collusion, or impossibility of relief, judges should never dismiss a case as moot
Recognizing the Right to Family Unity in Immigration Law
Get PDFThe Trump Administration’s travel ban and separation of families at the U.S.- Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court’s line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three categories of immigration cases in which litigants assert this right. Acknowledging that a substantive resolution of the problem of family separation in immigration will require legislative and executive intervention, this Note argues instead that courts should adopt two recommendations that would, as a matter of judicial process, more fully recognize the right. These measures would validate the dignitary interests of immigrant families and signal to the legislative and executive branches the constitutional implications of their longstanding inaction