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21 posts

Aberration of Accountability: Situating the Alien Tort Statute Against Corporate Human Rights Abuses

The Common Law Volume 58, Issue 1

By Sabriyya Pate

The Alien Tort Statute (ATS), one of the United States’ oldest laws, provides all federal district courts with general jurisdiction to hear cases brought by non–United States citizens. As written, the ATS empowers non– United States citizens—including victims of torture, kidnapping, forced labor, and child slavery—to sue American individuals and corporations for the customary international law torts committed against them. Over the past two decades, however, the Supreme Court has cabined the ATS such that it is unworkable for the non–United States citizens it was designed to empower. Instead, the Court has contorted the ATS to grant itself greater power over foreign policy and global governance. Meanwhile, amidst our increasingly globalized economy, human rights abuses committed by American multinational corporations (MNCs) against non–United States citizens remain widespread. A revival of a robust interpretation of the ATS would preclude American MNCs from evading the United States judicial system when they commit human rights abuses abroad.

This Comment argues that unraveling the doctrinal fallacies saturating ATS jurisprudence is the first step toward reform. Contextualizing the recent settlement achieved in Doe v. ExxonMobil, this Comment argues that ATS doctrine has become a web of contortions that must be rectified before the Court further usurps foreign policymaking authority. It concludes by outlining a path for legislative action on the issue of human rights abuses committed against non–United States citizens by American corporate actors.

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High-Frequency Litigation: Framing the Narrative of ADA Actions

The Common Law Volume 58, Issue 1

By Amanda McBain

A sharp rise in the filing of Americans with Disabilities Act (ADA) Title III actions between 2013 and 2021 has furthered the “for-profit” lore surrounding arguments against the standing of serial litigants. Critics have construed the mere propensity of ADA litigants to settle their lawsuits as the basis for a disingenuous narrative: serial litigants, often referred to as “testers,” are litigating spurious claims with the sole intent of financial gain.

In Acheson Hotels, LLC v. Laufer, the parties presented the Supreme Court with the question of whether an ADA “tester” has standing under Title III to bring an action against a hotel for its website’s lack of sufficient accessibility information, even if the tester never intended to become a guest. Stemming from a review of claims asserted in the amicus briefs filed in Acheson Hotels and Justice Thomas’ concurring opinion, this Comment analyzes and responds to the narrative that serial litigation is a “for-profit” industry propelled by fee-shifting statutes or settlements and dependent on “boilerplate allegations” that lack a proper injury-in-fact. Through an empirical analysis of complaints and the role of settlements in ADA actions, this Comment provides an answer to the myth surrounding serial litigation and assesses the proper intent of its litigants.

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One Size Does Not Fit All: Reforming the Federal Sentencing Guidelines’ Terrorism Enhancement

The Common Law Volume 58, Issue 1

By Anaximander Mars

Following the 1993 bombing of the World Trade Center, Congress directed the U.S. Sentencing Commission to amend its Sentencing Guidelines to prescribe a steeper penalty for acts that involve or intend to promote international terrorism. The result is the terrorism sentencing enhancement, which automatically sets a floor of 210 to 262 months when calculating the recommended sentence for defendants before other adjustments. But this one-size-fits-all penalty, while appropriate for the worst offenders intending mass murder, sweeps too broadly and recommends severe sentences for any defendants accused of antigovernment conduct. Prosecutors request the terrorism enhancement not only for terrorists intending mass murder or bodily harm, but also for unruly protestors intending small-scale property damage and civil disobedience. This Comment proposes reforming the enhancement by implementing a tiered system that recommends sentencing adjustments for anti-government criminal conduct according to the offense type and the degree of intended or actual violence and property damage.

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Obscenity Revisited: Defending Recent Age-Verification Laws Against First Amendment Challenges

Volume 58, Issue 1

By Daniel S. Anduze

On July 2, 2024, the Supreme Court of the United States granted certiorari in Free Speech Coalition v. Paxton—a case involving a First Amendment challenge to Texas H.B. 1181. That statute, aimed at limiting youth exposure to sexual material online, requires pornography companies to verify that their users are at least 18 years old. Since 2023, 18 other states have enacted nearly identical age-verification laws with surprisingly bipartisan majorities. As of this Note’s publication, analogous legislation is pending in at least 17 additional states. But according to the pornography industry, because these laws burden substantial amounts of protected speech, courts must apply strict scrutiny—a demanding standard which the laws allegedly cannot survive, especially in the wake of Reno v. ACLU and Ashcroft v. ACLU II.

This Note challenges that argument. It argues that recent age-verification laws pose no serious First Amendment concerns and should be upheld against the industry’s legal challenges. Contrary to the industry’s suggestions, recent age-verification laws were carefully crafted to avoid the constitutional pitfalls of the provisions of the Communications Decency Act and the Child Online Protection Act that were invalidated in Reno and Ashcroft II. The recent legislation—including Texas H.B. 1181, the focus of this Note—represents a concerted effort by state legislators of all political stripes to incorporate the judicial guidance previously provided by the Supreme Court. While this Note is sympathetic to a majority of the government’s proffered defenses of the laws—involving the obscenity exception to the First Amendment and rational basis review under Ginsberg v. New York—it ultimately concludes that strict scrutiny is the appropriate standard of review under existing precedent. Texas H.B. 1181, and all analogous laws, still survive this demanding standard of review because they (1) serve the compelling governmental interest of protecting children from online pornography, (2) are narrowly tailored to achieve that interest, and (3) are the least restrictive means of advancing it, notwithstanding the availability of parental-led content filtering software.

Part I of this Note describes the history of recent age-verification legislation and the modern reemergence of anti-pornography sentiments. It then analyzes the statutory requirements of age-verification laws, particularly of Texas H.B. 1181. The remainder of Part I recounts the history of obscenity jurisprudence in the United States and contemporary Congressional attempts to regulate sexual content on the internet. Part II considers a variety of defenses of the laws. It first examines whether the laws can be upheld under the obscenity exception to the First Amendment. It then contemplates the appropriate standard of review and analyzes whether H.B. 1181 survives the relevant tiers of constitutional scrutiny. Part III explores potential avenues for the Supreme Court to revisit its obscenity jurisprudence in light of original understandings of the First Amendment and consistent state practices following its ratification.

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Epic Games Played by the Rule of Reason: Rebalancing Antitrust’s Improbable Standard

Volume 58, Issue 1

By Jay S. Burgin

When mobile app developers like Epic Games—creator of the massively popular online video game Fortnite—make their product available on Apple’s App Store, they enter the “walled garden,” a closed digital ecosystem wherein iPhone and iPad users cannot download games through other digital marketplaces. They also agree to Apple’s “antisteering“ provision: developers cannot attempt to steer consumers away from the App Store to purchase the same game on the developer’s website, often for lower prices. In 2023, the Ninth Circuit held in Epic Games v. Apple that antitrust challenges to digital download tying arrangements like these should be judged under the defendant-friendly rule of reason standard, rather than by categorical presumptions. Though Apple ultimately evaded antitrust liability, the court struck down antisteering provision as “unfair” under California state competition law. This (minor) equitable relief did little to unseat the tech giant’s continued dominance over digital marketplaces. Yet the ruling in Epic Games accomplished what may prove to be significant: the circuit court held that trial courts applying rule of reason analysis must apply the underutilized—even neglected—balancing stage of the rule of reason.

This Note argues that the Ninth Circuit’s ruling in Epic Games reflects an emerging quagmire in antitrust law. As courts become more comfortable in applying the rule of reason standard in software industry tying claims, demonstrating clear anticompetitive practices may not be enough to prevail where, not only are there ever-ready procompetitive justifications for such practices, but the rule of reason as a process does not allow plaintiffs to pass go—regardless of the merits. The requirement that courts engage in fourth-stage balancing may relieve the doctrine of its implausible propensity to find non-liability and resolve inherent contradictions between findings of fact and outcomes as a matter of law. Post-Epic Games, if antitrust law is to remain salient in regulation of the platform software industry, courts must engage more seriously in balancing—or rather, re-balancing—a broader set of non-economic considerations and redirect courts toward the original conception of antitrust law as protector of the competitive process.

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When Parents Decide That All the World’s a Stage: Expanding Publicity Rights to Protect Children in Monetized Social Media Content

Volume 58, Issue 1

By Celine Simone

Family content creation is a multibillion-dollar industry. Though most parents at some point share content of their children online, for many “influencer” parents and their children, putting in the hours to curate the perfect online image means legions of fans and an enviable income from advertising and sponsorship. The children of these families, though integral to this content’s success, have neither legal protection to assure compensation for their labor nor any control over the material in which they appear. Creating this content can have detrimental effects on children’s safety and well-being; additionally, because of the internet’s permanence, these negative effects often continue well into adulthood.

Several states have passed or proposed laws that would ensure some level of financial compensation for children involved in monetized content. A far less discussed—but perhaps equally important—potential form of protection is the “Right to Deletion,” whereupon turning 18 these children could command that their parents remove monetized media that includes their likeness. In the United States, parents enjoy a high degree of autonomy in making decisions for their children, meaning it is exceedingly difficult to explicitly control the type of content parents can create involving their minor children. Accordingly, this Note advocates for a national expansion of publicity rights, which would give children included in monetized content a “Right to Deletion” upon reaching adulthood—respecting parental autonomy while curbing the long-term negative effects of “sharenting” on the involved children. Further, deletion rights may have the effect of persuading parents to consider more carefully the potentially harmful effects of the content they produce without encroaching on their parental rights.

Part I of this Note outlines the family content creation industry, its unique characteristics compared to traditional forms of media, and the harms that can befall children in its production. Part II evaluates the United States’ legal understanding of parental autonomy and how this view leaves these children at an especially high risk of exploitation. Part III addresses the state of publicity laws and where children involved in monetized content fit into the existing legal framework. Finally, Part IV advocates for the expansion of publicity rights to give these children the “Right to Deletion” upon entering adulthood.

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Towing After Timbs: Why Vehicle Impoundment Violates the Excessive Fines Clause

Volume 58, Issue 1

By Aliza M. Tresser

The plain text of the Eighth Amendment prohibits the government from punishing people with excessive fines. But until the Excessive Fines Clause was incorporated in 2019, it did not apply to municipal or state governments. In applying federal doctrine to the local context, many courts have not yet extended this guarantee to an obvious application: expensive traffic and parking tickets compounded by the exorbitant costs associated with towed cars or losing the car altogether at a lien sale. While towing companies are third-party contractors, this Note argues that because police authorize the towing companies to tow private vehicles and fine their owners, these punishments fall within the bounds of the Excessive Fines Clause. Additionally, whether fines related to car towing are excessive may depend on the financial circumstances of the car owner. What may be a manageable unplanned expense for one person is not so for others and can throw families living in poverty into economic insecurity and instability. Given this exposure to instability, fines that are reasonable for one family are not for another. Though there is no explicit Eighth Amendment protection against arbitrary impoundments, there is legal momentum around the idea; a growing number of jurisdictions are finding Excessive Fines violations for vehicle impoundments. This Note presents a comprehensive analysis of the Eighth Amendment Excessive Fines Clause as applied to traffic and parking violations, especially when it results in a car being towed without the consent of the owner.

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In the Shadow of the Bench: Judicial Discretion to Reject Plea Agreements

Volume 57, Issue 4

By Dylan R. McDonough

In 2021, over 98% of criminal cases at the federal level terminated in guilty pleas, many of which were the result of plea agreements between the prosecution and the defense. The numbers were similar at the state level. Despite this prevalence of plea agreements, many U.S. jurisdictions limit the role that judges may play in providing oversight in the plea negotiation process. At the federal level—and in at least 14 states—judicial participation in the plea-bargaining process is entirely prohibited. In those jurisdictions, judges have one tool for oversight: judicial discretion to reject plea agreements. On the rare occasions in which judges use this tool, the reasons for rejecting plea agreements vary widely. Some cite issues with sentencing leniency, others point to the need for the participation of the public or alleged victims in the legal process, and still others raise concerns around legislative intent, police officers’ views, or appellate waivers. However, the exact contours of that discretion remain ill-defined. The reasons for rejection given by different judges sometimes conflict, and the rarity of memorialized rejections means little caselaw has developed on the subject. This, in turn, has created a lack of predictability for parties in the plea-bargaining process.

This Note reviews case law at the federal and state levels to determine what limits appellate courts have placed on that discretion and what factors trial courts have considered relevant to its exercise. It then argues for a unifying two-step framework for judicial rejection of plea agreements. First, trial courts would adopt a rebuttable presumption in favor of rejecting such agreements. Second, the trial court would determine whether the parties have rebutted that presumption, considering prosecutorial prerogatives, the defendant’s autonomy and rights, the public interest in participating in the criminal legal system, and the views of any alleged victims. By working within this framework, trial courts could enhance the consistency and predictability of judicial rejections of plea agreements for all stakeholders in the criminal legal system.

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Creating a Safer Haven: A Post-Dobbs Proposal for a Model Infant Safe Haven Law

Volume 57, Issue 4

By Rachel M. Wagner

Following a rash of headlines about infant abandonments in the 1990s, every state passed a Safe Haven Law (SHL) which permits the anonymous surrender of infants to a safe place, like a hospital. Over 4,000 infants have been surrendered in the last quarter century. SHLs received renewed attention after Dobbs v. Jackson Women’s Health (the 2022 case that overturned Roe v. Wade and eliminated the constitutional protection for
abortion), where they were cited in both oral argument and the majority opinion. Following Dobbs, nearly two dozen states enacted abortion bans or restrictions and subsequently saw an increase in their birthrates. At the same time, the idea of Baby Boxes—devices placed on the outside of hospitals and fire stations where an infant can be surrendered without a face-to-face encounter—gained traction. Many state legislatures have reacted to Dobbs and the Baby Box trend by re-evaluating their SHLs.

This Note evaluates current SHLs and makes recommendations for a Model Safe Haven Law to instruct states on how to best support mothers and infants in crisis as they update their statutes. Part I explains the data on infanticide and illegal infant abandonment and outlines the most significant shortcomings and strengths of SHLs thus far. Part II proceeds to analyze five key elements of SHLs: the maximum age of surrender, surrender locations, anonymity, parental rights, and criminal liability. Part III offers evidence-based recommendations in the form of a model law to help SHLs fulfill their promises of reducing illegal infant abandonment and supporting families in crisis.

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Set It in Stone: Patagonia and the Evolution toward Stakeholder Governance in Social Enterprise Business Structures

Volume 57, Issue 4

By Ray Lu

In September 2022, outdoor apparel company Patagonia captured national attention when it announced that a specially designed trust and nonprofit would own and oversee the private for-profit corporation. Patagonia’s novel structure, rooted in the concept of steward-ownership, uses a trust to create a mechanism for direct stakeholder governance. A longstanding proponent of business as a means for social good, Patagonia and its new configuration represent the latest structural development in the world of “social enterprises”—defined as companies that aim to achieve positive social or environmental impact along with financial sustainability or gain. Social enterprises were traditionally organized as conventional for-profit entities before the introduction of new hybrid structures such as low-profit liability companies and public benefit corporations. Even these newer options, however, have limitations to integrating the perspectives of non-shareholder stakeholders, leading to skepticism that these entities would pursue or meet their social impact goals.

This Note examines the steward-ownership model in the context of Patagonia and the social enterprise movement more broadly, identifying a trend in using business structures to legitimize social impact goals and foster credibility. The trust and nonprofit structure help separate economic incentives from decision-making authority and legally codifies an avenue for non-shareholder stakeholders to influence the operations of a social enterprise. Part I introduces social enterprises, including the different business structures available to impact-oriented companies. Part II discusses steward-ownership and the use of trusts in social enterprise business structures, comparing Patagonia’s new structure to existing options. Part III examines the implications of steward-ownership, highlighting concerns but finding that the model provides a strong form of stakeholder governance while maintaining the flexibility to incorporate other dimensions of social enterprise innovation. The analysis concludes that steward-ownership models are a definitive, sequential improvement in the use of business structures by social enterprises to reshape business into a force for positive social change.

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Nomos and Narrative in New York: Expanding Religious Liberty Rights, Hasidic Yeshivas, and New York Education Law

Volume 57, Issue 4

By Samuel B. Hainbach

In 1983, Robert Cover challenged the U.S. Supreme Court’s approach to conflicts between the law of the state and the religious commitments of “insular communities.” Over 40 years later, Cover’s call remains urgent, and is of special relevance in New York. In Brooklyn and the Lower Hudson Valley, Hasidic yeshivas with tens of thousands of students seek dispensation from state policy that requires all students to receive a basic secular education. Meanwhile, federal religious liberty jurisprudence, significantly changed since 1983, still fails to satisfyingly arbitrate between the commitments of religious communities and the law of the secular state.

Part I of this Note sets the theoretical and doctrinal stage. It explains the intervention made by Professor Cover in Nomos and Narrative, outlines the free exercise maximalism of today’s Supreme Court, and proposes how Cover’s ideas could be used to redeem a religious liberty jurisprudence gone awry. Specifically, as part of determining when the law of the insular religious community must bend before the law of the state, Part I argues that courts should inquire into whether the state’s law is paideic (world-creating) or merely regulatory. Part II applies these ideas to the pressing case study of Hasidic education in New York. It provides the reader with an overview of Hasidic education and the current legal landscape. It also cautions that current doctrine is ill-equipped to handle the dilemma. Finally, Part III encourages New York government to articulate its compulsory education law as a world-creating commitment of the state and urges the courts to recognize the legitimacy and necessity of such a claim.

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Indigeneity in the Classroom: Avenues for Native American Students to Challenge Anti-Critical Race Theory Laws

Volume 57, Issue 3

By Alex H. Serrurier

Native American students in public schools face barriers to educational achievement due to racism, prejudice, and ignorance from fellow students, teachers, and administrators.  Native students have endured various forms of discrimination that range from forcible cutting of braids by peers to administrative bans on traditional regalia at graduation ceremonies.  In addition to experiencing overt acts of racism, Native students often feel disengaged from school due to the negative or non-existent portrayals of their tribal heritage in classroom curricula.  Literature suggests that much of the gap in educational outcomes between Native students and their white peers could be mitigated through the incorporation of appropriate curricular materials on Indigenous history and culture, leading numerous states to pass laws requiring such programs to be developed and implemented in classrooms.  In contrast, other states have proposed or passed legislation restricting the manner in which educators may discuss race, gender, and systemic inequality.  These “anti-critical race theory” laws have the potential to chill or directly inhibit much-needed teaching of Native American culture and history in public school classrooms through both minimizing conversations about historical white supremacy and racism against Native Americans and limiting the visibility of Native figures and culture in public school curricula.

This Note proposes that Native students attending public schools in states that have passed anti-critical race theory legislation may be able to seek judicial relief from such laws.  The Note will examine potential claims under the Fourteenth Amendment to the U.S. Constitution and, depending on where the students live, their respective state constitutions.  Part I provides background on the importance of culturally competent education for Native students.  Part II discusses the chilling effect that bills banning discussion of systemic inequality or race-related topics have on ethnic studies programs, the specific barriers that they raise to teaching Native culture and history, and the ensuing harm caused to Native students.  Part III examines potential avenues for judicial relief.

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A Necessary Recalibration: Why the Ministerial Exception’s Bar on Whistleblower Actions Harms Teachers and Students

Volume 57, Issue 3

By Christopher Morillo

The “ministerial exception” is a First Amendment shield for religious institutions facing employment-related lawsuits.  The Catholic Church, for example, might invoke the exception if sued by a woman barred from joining the priesthood on account of her sex.  In recent years, however, the Supreme Court has “vertically” expanded the scope of the exception down the hierarchy of a religious institution, holding that it bars actions brought not only by traditional “ministers,” but also by teachers and other employees at religious schools—many of whom do not hold religious office or formally preach to students.  This Note argues that this vertical expansion (i.e., the broadened conception of “minister”) warrants a “horizontal” restriction on the types of claims that the exception bars.  Namely, whistleblower actions should not be categorically barred by the now-bloated ministerial exception.  As the law stands, over a hundred thousand secular teachers are left in a precarious double bind in which they must act as mandatory reporters for child abuse and yet lack protection from any consequent retaliation for whistleblowing.

Part I of this Note provides an overview of the ministerial exception and its recent expansion, including how lower courts have been handling whistleblower claims.  Part II theorizes that the broadening of the ministerial exception, and the underlying First Amendment right of church autonomy, should trigger a proportionality approach that constrains the exception based on competing government interests.  Part III applies this proportionality approach in the context of whistleblower cases, arguing that whistleblower actions are distinct from other applications of the ministerial exception in the way they implicate third parties—often children—and with respect to the unique societal interests in protecting those third parties.

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Holder v. Humanitarian Law Project’s Shadow: When Fear Suppresses Disfavored Voices

Volume 57, Issue 3

By John Kimble

In 2010, the Supreme Court held in Holder v. Humanitarian Law Project (HLP) that “material support,” as defined in § 2339B of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), includes a humanitarian organization’s efforts to teach a U.S.-designated foreign terrorist organization how to engage in international affairs peaceably.  In deferring to Congress’ proclamation that such support is “fungible” and “legitimizes” foreign terrorist organizations, the Court departed sharply from First Amendment precedents.

This Note examines scholarship that has proliferated since HLP.  The Introduction describes Zoom Video Communication’s cancellation of a university event at which Leila Khaled, a member of a U.S.-designated foreign terrorist organization, was scheduled to speak.  The cancellation of this event alarmed many First Amendment advocates because it suggested that HLP was chilling otherwise constitutional speech.  Part I analyzes HLP and subsequent cases applying its holding.  Part II shows how expansive interpretations of 18 U.S.C. § 2339B, the material support statute at issue in HLP, conflict with First Amendment jurisprudence.  Part III calls on Congress to rectify the First Amendment problems that HLP and its applications have created and urges courts to interpret § 2339B narrowly in order to protect Americans’ free speech rights.

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After Reaching the Courthouse Door: Why Lack of Affirmative Assistance Post-Pleading Violates Prisoners’ Access to Courts Right

Volume 57, Issue 3

By Yasmine Ardehali

“Meaningful” access to the courts is a fundamental right under the Constitution’s Due Process Clause.  But for incarcerated persons, this access is severely limited.  The Supreme Court has thus required states to provide prisoners with legal assistance for presenting complaints of civil rights violations and challenges to confinement.  Because incarcerated individuals often represent themselves pro se, states often have fulfilled this constitutional duty by providing proper law libraries or legal assistance programs.  However, the Supreme Court’s decision in Lewis v. Casey severely curtailed prisoners’ right of access, disclaiming the notion that states must enable prisoners to “litigate effectively once in court.”  The decision has created a circuit split about the extent of a state’s obligations to incarcerated persons after a complaint has survived the pleading stage.  While some circuits have found the right of access to include “affirmative assistance” after the pleading stage, others have required that the state merely not engage in “active interference” with the plaintiff’s case without mandating that the state facilitate access.  This Note argues that lack of affirmative assistance directly violates prisoners’ due process right to access the courts.  Successful claims often depend on complying with legal technicalities that an incarcerated individual would not know about without affirmative assistance.  Therefore, lack of affirmative assistance after the pleading stage causes meritorious lawsuits to fail.  To rectify the disparity, this Note proposes reconciling Lewis’ existing framework with the need to provide post-pleading stage assistance by introducing the “legal information vs. legal advice” distinction: states must be required to furnish access to legal information after the pleading stage but are not required to provide legal advice.  This dichotomy has already become commonplace in thirty-eight states that assist non-incarcerated pro se parties in civil actions, and should similarly apply to the prisoner litigation context.

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Searching for Judges Who Hear: Analyzing the Effects of Colorado’s Abolition of Qualified Immunity on Civil Rights Litigation

The Common Law Volume 57, Issue 1

By Colin Cowperthwaite

“Section 1983 was born out of the failures of state courts.  Over a hundred years later, [Colorado’s Enhance Law Enforcement Integrity Act (ELEIA)] was born out of the failures of federal courts to protect individuals from civil rights violations committed by local law enforcement.  By removing qualified immunity as a defense, ELEIA challenged federal courts’ continued relevance in addressing police violence in Colorado.  But as this Comment shows, Colorado’s federal district court remains an active scene for litigating against officers who violate constitutional rights.  While there are many possible explanations for this result, ELEIA should not be taken as a failure.  On the contrary, eighty-two claims that might otherwise have gone unheard in federal courts now can be heard in state courts.  For victims of police violence, ELEIA provides a meaningful source of “ears to hear” their appeals for accountability, remedy, and justice.”

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State Constitutions and Systemic Gaps in Music Education Access

The Common Law Volume 57, Issue 1

By Corey Whitt

“The proliferation of music education in schools throughout the United States is an apparent success.  However, its application is not evenly spread across the country.  Students living in poverty are most often those who are left unable to enjoy its advantages.  Further, the disparities increase along racial lines.  The reality is that low-income students of color are more likely to forgo a music education than their affluent, white peers.

As demonstrated in cases leading into the twenty-first century, state courts can play a role in bridging the socio-economic divide of music education access.  Where state courts chose to define the minimum quality of education prescribed by their state constitutions, music experiences were acknowledged.  A modern, successful advocacy strategy, however, will likely deviate from litigation in favor of ballot measure proposals to secure a music education for all students given the inherent risk of establishing harmful legal precedent.  Through the patchwork of state ballot measures, the American electorate can promote meaningful music education experiences for all students—not only the wealthy, white children.”

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Access to Justice in “Lawyerless” Housing Courts: A Discussion of Potential Systemic and Judicial Reforms

The Common Law Volume 57, Issue 1

By Gabe Siegel

“Housing courts—and lawyerless courts more broadly—are broken.  Only one side has access to lawyers.  And given the institutional expertise, strategic knowledge, and unfair use of procedure that housing court lawyers bring, only one side has genuine access to justice.  By changing the ways in which judges interact with pro se and represented litigants, reform can provide access to justice to all parties in housing court.  Judicial reforms would decrease delay, elicit more facts, inject due process and procedural fairness into proceedings, and minimize bias.  The most important of these reforms is active judging, including procedural reform, evidentiary reform, and easier access to hearings.  As the effects of the active reforms taken by Alaska District Court Judge Washington indicate, the reforms are simple to implement and quickly make a tangible impact.  More broadly, reforms would benefit pro se litigants and the judicial system as a whole: it is ‘more effective to train one judge on how to assist a self-represented litigant than to teach hundreds of [litigants] how to be lawyers.’  It is an ‘essential democratic goal’ that the court system work fairly for all.  Reforming judging in lawyerless housing courts helps it do just that.”

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The International Legal ‘Regime’ Against Child Marriage: A Haphazard Patchwork

The Common Law Volume 57, Issue 1

By Linny Kit Tong Ng

“The existing international legal architecture designed to address child marriage is markedly deficient, representing a haphazard patchwork of provisions with varying degrees of relevance strewn throughout numerous international and regional conventions.  This framework fails to articulate a cohesive strategy for the eradication of child marriage; the language used is frequently ambiguous, resulting in standards that offer little specific or useful guidance for implementation, and lack enforcement mechanisms.  These deficiencies have precluded the establishment of a robust and enforceable global norm against child marriage.  Regional African instruments have demonstrated that linguistic precision in themselves does not guarantee compliance, as enforcement often falters due to exceptions carved out by the law for customary and religious unions, a lack of political will, or resources.

Combating child marriage requires a comprehensive and nuanced approach that extends beyond international agreements to include local collaboration.  To avoid the pitfalls of paternalism and cultural imperialism, sufficient time and effort must be invested in identifying the appropriate standards to be enshrined in a hypothetical, dedicated anti-child marriage convention.  Additionally, states must reconsider conventional approaches of imposing sanctions and dispensing incentives.  This Comment advocates for a deeper exploration of reversible rewards as a novel strategy to enhance compliance with anti-child marriage measures.

Given its intersection with private law and human rights, child marriage presents an exceptionally intricate challenge.  Efforts to eradicate the practice are further complicated by its widespread occurrence, the influences of globalization, sociocultural mores, religious beliefs, and economic conditions.  Addressing the issue effectively calls for not just legal interventions, but also a commitment to education and cultural engagement that empowers children, families, and entire communities.  Such transformational efforts are gradual and are part of broader societal movements that address gender equality and environmental sustainability.  Consequently, while the elimination of child marriage is a global imperative, it is a goal that must be pursued with careful deliberation and respect for the complex tapestry of societal dynamics.”

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Keeping Ferris Out of Foster Care: Reforming the JJDPA to Prevent Home Removals Based on Truancy

Issues Volume 57, Issue 1

By Rose Wehrman

Truancy is directly correlated with negative educational and life outcomes for students.  The state exacerbates these negative effects when it removes students from their homes for truancy.  Far from addressing the underlying causes of truancy, home removals—whether into secure or non-secure placements—cause devastating harm.

The Juvenile Justice Delinquency and Prevention Act (JJDPA) allows, with some restriction, for children to be incarcerated for truancy.  Additionally, the JJDPA has never regulated the civil removal of juvenile status offenders to non-secure yet prison-like placements.  JJDPA reform has so far focused on the harms of incarceration—a worthy cause, but one that must not overshadow the overlapping harms of non-secure removals.

This Note argues that truancy should not be handled by removing children from their homes and proposes revisions to the JJDPA that would bring the Act closer to its purpose: preventing delinquency and providing necessary services.  To achieve the intended purpose of the JJDPA, Congress must implement further reform.  This Note offers an analysis of how non-secure home removals intersect with the JJDPA and extends existing discourse through its analysis of post-2018 valid court order (VCO) exceptions.  Ultimately, this Note demonstrates how non-secure civil removals and VCO incarcerations frustrate the intended purpose of the JJDPA.

Part I discusses the scope of the truancy problem and the JJDPA’s background and context.  Part II offers insight into the unique harms of home removals, and Part III demonstrates how current loopholes frustrate the purpose of the JJDPA.  Part IV suggests revisions to strengthen the JJDPA’s protections and more closely align the bill with its purpose.

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Lethal Paralytics and the Censorship of Suffering

Issues Volume 57, Issue 1

By Drew S. Brazer

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons.  This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart).  The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die.

This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech.  State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech.  The state’s interest in requiring the paralytic—to censor the violence of the condemned person’s death—is neither legitimate nor compelling.  As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment.

Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States.  It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically.  Part II examines the constitutional rights of incarcerated persons and considers whether an individual’s decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test.  Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic.  Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review.  Part III explores the policy implications of recognizing a condemned person’s right to refuse lethal paralytics.  Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.

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