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The Seven Essential Law School Simulation Courses
Full text linkAs we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes be atypical and unlikely to recur in the students’ law practices after graduation. Simulation courses complement clinics and field placements by engaging students in a curated set of role-playing exercises intended to expose them to scenarios they will commonly encounter as practicing lawyers. They provide students with the opportunity to practice core lawyering skills and receive feedback on their performance on a regular basis. This Article proposes a set of essential simulation courses that every law school in the United States should offer its students. The timing is right for this proposal both because of the upcoming changes to the content of the bar exam—which will begin in 2026 to assess test takers’ proficiency in lawyering skills in addition to their knowledge of substantive law—and the growing body of empirical data on critical competencies for new lawyers. My goal in developing the curricular recommendations set forth herein is to identify the simulation courses most closely aligned with the lawyering skills that will be tested on the NextGen bar exam and the key competencies that leading studies have found critical to the success of new lawyers. In doing so, I consider the results of a detailed review of the experiential curricula of seventeen ABA-accredited law schools, which revealed both similarities and inconsistencies among law schools’ current simulation-course portfolios. My analysis yields the following list of simulation courses that will work together well to prepare students for the NextGen exam and their early years of legal practice: (1) advanced legal research, (2) trial practice, (3) appellate advocacy, (4) transactional drafting, (5) alternative dispute resolution, (6) interviewing and counseling, and (7) legal ethics. In addition to clinics and field placements, these courses should constitute the pillars of a law school’s experiential learning program
Circumventing the Fourth Amendment: The Unconstitutional Nature of Geofence Warrants
Full text linkFederal and state law enforcement agencies are using a new tactic for gathering evidence: geofence warrants. These warrants allow law enforcement to gather historical location data collected by third party companies including Google, Facebook, Amazon, and Apple. Armed with a geofence warrant today, law enforcement agencies can track the previous location of an individual at any point from the moment they acquired a cell phone—so long as the location history is turned on. The tactic has grown in popularity since 2019 and has been used to uncover suspects in cases where police had few leads. Troublingly though, the tactic has been used to prosecute protesters and abortion seekers. In addition, these geofence warrants also ensnare the private historical locations of thousands of innocent citizens.
Courts have yet to delineate clear, Fourth Amendment boundaries for this sweeping law enforcement tactic. While these cases stagger upwards for appellate review, the searches of criminals and the public alike continue. This Note addresses the constitutionality of geofence warrants on the merits—something few courts have attempted thus far. It argues that the use of a geofence warrant is indeed a search within the meaning of the Fourth Amendment, yet it lacks two Fourth Amendment requirements: probable cause and sufficient particularity. Thus, geofence warrants are unconstitutional and necessitate a remedy.
Further, this Article reveals that judicial remedies in this arena are inconsequential. Corrections by appellate courts on the back end are impossible for two reasons. First, there is no remedy for citizens whose private information has been gathered by the police. And second, suppression of the unconstitutionally obtained information at a criminal trial is prevented by a swelling legal doctrine—“the good-faith exception to the exclusionary rule.” This leaves the privacy concerns and Fourth Amendment rights of citizens entirely in corporate hands. Accordingly, legislation is the only true remedy to the issue of geofence warrants and calls for a legislative ban
Gender Regrets: Banning Abortion and Gender-Affirming Care
Full text linkConservative politicians, lawmakers, and media have generated a national moral panic about transgender children and youth that has resulted, as of early 2024, in restrictions or bans on GAC for minors in twenty-four states. In these bans and the advocacy around them gender-affirming care for minors is presented as harmful, ideological, unnecessary, and likely to lead to future regret. The role of regret in the movement to ban gender-affirming care parallels the role of regret in the ongoing conservative campaign to ban abortion. In the years between Roe v. Wade (1973) and Dobbs v. Jackson Women’s Health Organization (2022), politicians and lawmakers promoted the idea that pregnant people may come to regret the decision to end a pregnancy, and that laws should protect them from that decision.
This Article analyzes the use of “regret” in bans on abortion and on gender-affirming care for minors. It identifies two overlapping legal threads. First, both campaigns against medical care point to protection of patients from future regret as a legitimate state interest justifying restrictions on providing medical care. Second, both rely on alleged concerns about regret to redefine the legal meaning of “informed consent” and make it easier for potential future plaintiffs to prevail in civil suits against providers of medical care. In doing so, both treat the emotion of regret as a distinct injury that may give rise to a range of legal rights and liabilities. The Article reveals how conservative politicians and lawmakers use “regret” as a disciplinary tool to promote traditional family values, especially involving natalism and “biological” sex difference
Panel Presentation, The Criminalization of Trans Lives and Health Care: Provider and Patient Perspective
Full text linkBans on gender affirming care are going to take a group of individuals who, as a whole, are already marginalized and already at risk. And then within that group, it’s going to segregate them even more because you’re going to have the people who can do that. You’re going to the families who can take their kids eight hours to another state. Then you’re going to the family that can’t because they can’t pay out of pocket, or they can’t take off work or they can’t make it to a state where their child can get care. These laws will take that group that’s already marginalized and marginalize them even more for the people who don’t have the means.
The level of discrimination here, and the end results, are pretty outstanding. I think that the New England Journal of Medicine summed it up best in this article on criminalization of gender affirming care:
We believe these bills threaten the health, well-being, and survival of transgender children and young adults. By penalizing physicians for practicing evidence-based medicine, the legislation nullifies their expertise and interferes with therapeutic relationships among physicians, patients, and families. It strips power from patients and families who are already marginalized. And although the stated purpose of the legislation is to protect adolescents, we believe that criminalizing what has been shown to be lifesaving treatment will do the opposite––and that the consequences could well be tragic
Why Do Judges Compete for Cases?
Full text linkIt’s not just parties to litigation who forum shop. Sometimes judges forum sell by trying to attract cases to their courts. This judicial competition for cases has been documented in areas ranging from bankruptcy to antitrust to, most infamously, patent law. Despite the ubiquity of judicial case-seeking behavior, one important question remains unanswered: why? Why do judges—particularly federal district judges, who enjoy life tenure and are paid fixed salaries—seek out more work, especially in cases that can be quite complex?
This article answers that question by developing a first-of-its-kind model of judicial behavior in the context of court competition. The incentives judges act on, we argue, range from the seemingly innocuous, such as intellectual interest in or prior experience with particular types of cases, to the definitely pernicious, such as economic benefits for the local bar, community, and even the judges themselves. Somewhere in between are the very human desires for the fame and adulation that come with being known as the expert on a given topic and the satisfaction of making decisions that are consistent with one’s normative beliefs about the world.
The federal courts are facing threats to their legitimacy; case-seeking activity by district judges further undermines public faith in (and the efficiency of) the litigation system. Thus, we conclude the article by outlining legal reforms that would incentivize judges to work hard on cases they find interesting without perpetuating the biases endemic in the current “free market” of court competition
Reproductive Justice at Work: Employment Law After Dobbs v. Jackson Women’s Health Organization
Full text linkIn June 2022, in Dobbs v. Jackson Women\u27s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts. Experts across fields have explored the decision\u27s effects on health, economic security, medical privacy, the patient-physician relationship, access to assisted reproduction, marriage equality and other LGBT+ rights, constitutional sex equality, disability rights, and medical research. Less attention has been given to the impact of Dobbs on employment law and women workers. To fill this gap, this Article examines the post-Dobbs landscape in which workers\u27 reproductive experiences and capacities may be used to justify employment discrimination.
Part I provides the sociomedical and legal landscape upon which this Article’s arguments rest. Specifically, Part I.A. demonstrates that common reproductive health experiences such as abortion, infertility, and miscarriage are often indistinguishable, as the symptoms and treatments for these conditions significantly overlap. Given this overlap, after Dobbs, all of these reproductive health events are becoming more complicated (and potentially dangerous) medically and uncertain legally. Part I.B. provides a brief overview of four major federal employment statutes relevant to workers’ reproductive freedom and reproductive lives—the Pregnancy Discrimination Act of 1978 (PDA), the Americans with Disabilities Act of 1990 (ADA), the Pregnant Workers Fairness Act of 2022 (PWFA), and Family and Medical Leave Act of 1993 (FMLA). My emphasis is on how (with the exception of the PWFA, which is new), federal courts have significantly undermined federal protections for workers affected by common reproductive health conditions despite Congress’s broad remedial purposes in passing federal employment statutes and the EEOC’s loyal interpretations of them.
Part II goes on to examine more closely some of the judicially imposed gaps that render federal employment statutes particularly ineffective in addressing workers’ reproductive lives. In particular, Part II examines the weak or nonexistent medical privacy and antiretaliation protections provided by federal antidiscrimination and family leave laws, largely due to constraining lower court interpretations. It also examines the mismatch between the culture of secrecy surrounding workers’ common reproductive health experiences such as abortion, infertility, pregnancy, and miscarriage and federal employment statutes and legal doctrines that require workers to share private health information as a precondition to receiving legal protections. As Part II argues, the criminalization of abortion in the wake of Dobbs is likely to exacerbate these legal and cultural conditions that render federal employment law particularly ineffective in this realm.
Part III turns to solutions, inviting introspection and regulatory shifts to include the full spectrum of a person\u27s reproductive life in mainstream employment law. Among other reforms, Part III examines the recently-passed Pregnant Workers Fairness Act (PWFA), a new federal law providing a basic right to reasonable workplace accommodations for pregnancy and related medical conditions. The PWFA is a significant victory for pregnant workers and women\u27s rights. But, as Part III argues, in some significant respects, the PWFA does not go far enough, because it does not sufficiently shore up privacy and antiretaliation protections that workers need to meaningfully access reasonable accommodations in a legal landscape where abortion is a crime and even a miscarriage or failed IVF cycle may be prosecuted as an abortion. Therefore, as Part III argues, enhanced medical privacy and antiretaliation protections in all of our federal employment statutes are required. Without such protections, the entire legal regime of substantive protections from sex and disability discrimination at work will be severely weakened for women workers post-Dobbs. Finally, Part III argues that it is time for a national paid sick leave law in the United States. Such a law is also necessary to address the unique vulnerabilities of women workers in a post-Dobbs world
Making Money Green: A Proposal for a Sustainable Stock Exchange
Full text linkInvestors crave sustainable business data as a lucrative indicator of long-term business success, yet this demand is not being met by current environmental, social, and corporate governance (“ESG”) investment portfolios, voluntary business disclosure reports, or the Securities and Exchange Commission’s (“SEC”) climate-related rule proposal. Instead, an alternative, voluntary stock exchange premising entry upon satisfaction of industry-specific ESG prerequisites, would directly connect investors with the sustainable investments they desire without requiring them to interpret dense scientific data and decipher which companies exercise positive business practices.
This Article demonstrates that creating an alternative stock exchange for trading solely sustainable businesses would provide a mechanism to allow investors to back companies that align with their values and enforce compliance with preset sustainable business standards, going beyond mere disclosure requirements while avoiding the political influence and mandated capital compliance costs associated with rules implemented by the SEC
NIL Enforcement Preemption
Full text linkThe National Collegiate Athletic Association (NCAA), which serves as the multibillion-dollar college athletics industry’s primary governing body, has faced several recent legal challenges to its operations. One particularly prominent challenge projects to result in litigation that will significantly impact college athletics’s future. This article explores the circumstances that led to this precarious position: (1) the NCAA’s recent changes to its longstanding rules prohibiting student-athlete compensation for use of their names, images, and likenesses; (2) several state legislatures’ attempts to provide universities in their states with a competitive advantage by legislating restrictions on the NCAA’s ability to enforce its rules; and (3) the NCAA’s anticipated challenge to these laws’ legality. The article also analyzes the legal authorities relevant to the prospective forthcoming legal battle between the NCAA and states that have sought to limit its authority—the dormant Commerce Clause, the Contract Clause, and the law of private associations. More specifically, the NCAA’s future and legitimacy could be largely affected by two recent Supreme Court decisions – one regarding pig farming regulation and the other divorce decrees’ effects on life insurance policy beneficiary designations. Further, the NCAA’s likely legal challenge comes at a time when the judiciary is increasingly skeptical of the NCAA’s rules, decisions, and legal arguments
Standing in the Way of Environmental Justice
Full text linkPrivate citizens need an avenue for justice through the judicial system on the siting of hazardous facilities. The health impacts of exposure to toxic facilities—like cancer, respiratory illnesses, and birth defects—are severe and victims deserve their day in court. While initiatives by government agencies and grassroots organizations provide influential roads to improvement, the judiciary stands to only bolster the efficacy of the work in the environmental justice field. The most effective way to include the courts is through the legislature creating a cause of action targeting the issues that communities face. Solutions to the issue of citizen standing in challenging discriminatory effects of siting toxic facilities include amending the Fair Housing Act and adding stronger policies to both the Environmental Justice For All Act and President Biden’s Justice40 executive order
Saving Democracy from the Senate
Full text linkIt should not be surprising that Americans say they are frustrated with their national institutions. Congress, particularly the Senate, responds poorly to the public’s needs and wants because it is increasingly unrepresentative of the electorate. Reform is difficult, however, because each state’s “equal Suffrage” in the Senate is protected by a unique constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We first argue that the constitutional proscription on reforming the Senate has been overstated, identifying a range of constitutional reform options that would be permissible despite the Entrenchment Clause. Several of these approaches circumvent the restriction imposed by the Entrenchment Clause by reforming the Senate in ways that do not alter the equal representation of states: disempowering the Senate, abolishing the Senate entirely, or adding at-large nationally elected senators. A different approach involves repealing the Entrenchment Clause and then either passing a second amendment reapportioning the Senate or asking courts to democratize it under the Equal Protection Clause. We then canvass reforms that could move in the direction of democratizing the Senate without constitutional amendment, including admitting new states, breaking up the largest states, and (although we do not advocate it) a new Constitutional Convention. Throughout, we discuss the relative merits and difficulties of each of these options. Reformers and scholars need a clear understanding of the relevant legal frameworks to develop effective strategies. While we recognize that none of these options are easy, we conclude that action to fix the Senate’s democratic deficit is essential— and urgent