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Introduction: Path Dependency, Disruption, and the Influence of Climate Science on the Law
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Power to the People: The Supreme Court’s Confirmation of State Power in the Wake of Faithless Electors
Get PDFOne of the most cherished American liberties is the right to vote. Yet, the Constitution does little to protect the integrity of individual voters. Instead, the Founding Fathers created an Electoral College to represent states’ will. Over time, states enacted laws requiring that electoral votes be cast to reflect the state popular vote. In 2016, several electors voted for candidates who did not win their state’s popular vote, grounding their actions in a believed constitutional right to vote freely and unencumbered by state outcomes. The Supreme Court addressed this issue in Chiafalo v. Washington, holding that states may bind electoral votes. This Note finds that the Court’s decision properly reflects the Framer’s intentions and necessarily avoids political chaos while emphasizing a need for either state or congressional action to reform the Electoral Colleg
Federalism in the Era of Globalization: The Exercise of Foreign Affairs Powers by Subnational Entities
Get PDFCovid-19, Lying, Mask-less Exposures and Disability During a Pandemic
Get PDFThis article focuses on disability law in the context of COVID-19. In dealing with this pandemic, businesses, schools and other covered entities have to navigate and manage (at least) three different categories of people congregating. First are those who act as if there were no pandemic at all; they simply do not care if they are contagious and insist upon not complying with safety precautions, such as mask-wearing and social distancing; second are people who have medical conditions that make them especially vulnerable and at high-risk for severe symptoms associated with the infection; third are people who have already contracted COVID-19, and are currently experiencing symptoms, or have recovered from COVID. The point of this article is to discuss law that protects the second and third groups, especially against the first group. In part I, I identify the special pandemic-focused problems that arise when these groups interact. In part II, I discuss the global and local statistics related to the spread of the virus, especially as they relate to the housing needs and demographics in Miami-Dade County, Florida. Miami, Florida is exemplary because it is the fourth-largest urban area in the United States (U.S.), with a population of approximately 5.5 million, and a density of nearly 4,500 persons per square mile. With daily nonstop flights between Miami International Airport and Paris, Warsaw, Morocco and London, Miami -Dade County is a world-class hot spot for coronavirus, ranking fourth in the U.S. for highest number of confirmed coronavirus cases. Thus, Miami is a site where we see the three categories of people—mask-less individuals, those who are medically vulnerable to COVID-19, and those who have currently or previously tested positive for COVID—have come unwittingly together, explosively challenging the legal frameworks. In part III, I revisit significant pre-COVID-19 contagion cases for a discussion of historical and recurring problems of discrimination and containment. In part IV, I discuss the role of the state in protecting vulnerable persons against the mask-less. Part V addresses the emerging U.S. Supreme Court COVID-19 jurisprudence in the context of religious freedom, which I argue are arguably contagion non-containment cases. Part VI concludes that state “contagion law” and federal disability law can be understood to work together to keep everyone safe, especially during a pandemic
(Re)framing Race in Civil Rights Lawyering
Get PDFThis Review examines the significance of Henry Louis Gates, Jr.\u27s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation\u27s legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice of law inside civil-rights and criminal-justice systems and, more generally, to critical theories of race, the persistence of racism, and race-conscious legal representation. To that end, this Review interrogates and reimagines how race should be situated in the legal representation of clients of color. Building upon Gates\u27s discussion of the images and counternarratives created by Blacks as forms of resistance, it examines how those tools can be a means for galvanizing struggles against antiblack racism in the United States in the past and today.
Read from the intersection of theory and practice, Gates\u27s Stony the Road offers several instructive lessons on race and legal representation germane to lawyers, judges, and academics. The first lesson is that the white-supremacist tropes, narratives, and images of the postbellum periods of Redemption and Jim Crow segregation continue to frame our legal consciousness of race, effectively shaping the roles, mediating the relationships, and organizing the methods of the lawyering process in civil-rights, poverty-law, and criminal cases. The second lesson is that the trials of these cases provide a forum for lawyers, judges, jurors, and even witnesses to race-code the identity of accused and convicted offenders, impoverished clients, and victims of discrimination in ways that reify those tropes and diminish the agency of individuals, groups, and communities of color. The third lesson is that the trial of such cases also affords lawyers and clients meaningful, collaborative opportunities to reframe race-coded identity and provide new visions of self, namings, and identities. Such reframing can recover the presence of black agency, enhance the exercise of black power, and contextualize the impact of systemic racism on individuals, groups, and communities as a whole
Government Speech and First Amendment Capture
Get PDFAlarm regarding government speech is not new. In earlier decades, scholars worried that the government\u27s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term First Amendment capture, the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court\u27s developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like. First Amendment capture categorizing contested speech as government speech and then eliminating contrary viewpoints is an increasingly frequent occurrence and risks giving the government too much power to suppress those who would criticize it or blow the whistle on it. While one solution is to resist the government speech label, this Essay also proposes recognizing mixed speech as a potential means of curtailing the expansiveness of the government speech doctrine
