In 2020, the Supreme Court decided Bostock v. Clayton County, a case about Title VII of the Civil Rights Act of 1964. Bostock interpreted Title VII to prohibit employers from using an employee's sexual orienta-tion or gender identity in adverse employment decisions. Many federal circuit courts and the U.S. Department of Education (DOE) have used Bos-tock's reasoning to conclude that Title IX of the Educational Amendments of 1972 prohibits schools from treating a student adversely based on that student's sexual orientation or gender identity. However, many states and school districts have mandated the intentional use of the incorrect name and pronouns of their transgender and nonbinary students. And even in school districts with gender-affirming policies, some teachers have asserted religious objections to using students' names and pronouns that match their gender identity. This Note argues that Congress or the Supreme Court must settle the current circuit split to decide that Title IX, consistent with Bostock, pro-hibits discrimination based on gender identity. This will protect students who are transgender or nonbinary from being subjected to classroom en-vironments where their teachers intentionally use incorrect names and pro-nouns. This Note further argues that this protection is especially important when public school teachers request that the school give them a religious accommodation that excuses them from using their transgender and non-binary students' name and pronouns.
For many decades, gun control advocates, hoping to shift the terms of the debate to more favorable terrain, have argued that gun violence should be viewed primarily through the lens of public health. In September 2023, New Mexico Governor Michelle Lujan Grisham and New Mexico Secretary of Health Patrick Allen pushed that rationale to its extreme and beyond. Under the auspices of the state's public health emergency laws, they issued an executive order and agency directive that effectively eliminated the right of ordinary citizens to bear arms in public in the state's most populous county. That attempt to circumvent the Second Amendment by wrapping itself in the flag of a public health emergency suffers from a host of statutory and constitutional defects. In the ongoing battle to reframe gun violence as a public health emergency, the governor's order offers litigants and courts an important opportunity to start unveiling any new and hoped-for national tradition of restricting Second Amendment rights based on the declaration of a public emergency-health or otherwise. In the end, loose applications of Bruen's history-based test might offer governments in times of acute crisis, widespread disorder, and violent crime a fair-but not unlimited-amount of authority to impose temporary albeit severe restrictions on core aspects of the right to bear arms in public. But whatever the outcome might be in other cases, not even these loose applications of historical analogues would be sufficient to save Governor Grisham's order and her secretary's directive from a Second Amendment challenge.
Bankruptcy has evolved into tortfeasors' choice of law for resolving mass tort litigation. The United States Bankruptcy Code is equipped with procedural devices designed to maximize litigants' financial recovery and enhance judicial efficiency. Although bankruptcy procedures aim to resolve widespread liability and open the courthouse doors to litigants who may not otherwise recover, they simultaneously overlook the nonmonetary and dignitary objectives underlying tort law. This Note uses the Supreme Court's recent decision in Harrington v. Purdue Pharma-a high-profile example of mass tort litigation resolved through bankruptcy-to examine the extent to which bankruptcy procedures are unable to fulfill the nonmonetary objectives sought by mass tort litigants, such as the opportunity to be heard. Drawing upon the victims' rights movement that codified victims' legal right to be reasonably heard throughout criminal judicial proceedings, this Note proposes that mass tort victims whose claims are resolved in bankruptcy court should be similarly entitled to exercise their legal right to be heard through victim impact statements. Extending this legal right to mass tort victims, who are often precluded from actively participating in litigation, balances the irreconcilable objectives sought by bankruptcy law and tort law. This Note also addresses the logistics behind the recommendation's practical implementation before defending it against three possible critiques. Overall, this Note aims to extend discussion of Harrington as a means of identifying and understanding the often-overlooked issues with litigating mass tort claims in bankruptcy court.
The Constitution of the State of Colorado strictly limits the Colorado government's power to impose taxes and incur debt, including by requiring voter approval of higher taxes and new debt. Government debt must be approved by taxpayers and is subject to a debt cap, with a time limit of fifteen years for construction debt. The Colorado constitution also forbids governments to grant special privileges to businesses. For example, governments may not pledge their credit to benefit corporations, may not otherwise go into business with corporations, may not enact special laws for the benefit of a particular business, may not give extra uncontracted benefits to state employees or contractors, may not appropriate taxpayer funds to private businesses, and may not grant businesses irrevocable privileges. The Colorado constitution also includes the Taxpayer's Bill of Rights, which requires voter approval tax increases and for spending increases that exceed the rate of inflation plus population growth. However, every one of these restrictions has been effectively nullified, usually with the blessing of the Colorado Supreme Court. Rather than the fair, equal, and democratic state created by the Colorado constitution, Colorado has been turned into a welfare state for the politically powerful, intentionally operating to ignore the constitutional mechanisms for the consent of the governed.
The Tenth Circuit is known for two things: its collegiality and its downward trend of en banc rehearings. Recognizing this trend, two Tenth Circuitjudges recently outlined in the Denver Law Review "best practices" for submitting en banc petitions. In response, some scholars propose that this practitioner's guide is not worth the read because of the larger problem at hand. Namely, they predict that even with better petitions, the Tenth Circuit will remain unwilling to rehear cases en banc, thereby decreasing intracircuit uniformity. But this prediction overlooks key factors driving the trend. This Response accounts for one contributing factor-collegiality- causing the Tenth Circuit to rehear fewer cases and explains why this is desirable practice. To get there, this Response starts by tracing how en banc review emerged as a last-resort measure to resolve intracircuit conflict. It then discusses how collegiality plays a critical role in appellate review and the rehearing process. This Response concludes by explaining how the Tenth Circuit's informal procedures, fostered by its collegial spirit, likewise ensure precedential uniformity while minimizing the need to go en banc.
The Tenth Circuit is typically more reluctant than most other courts of appeals to treat constitutional claims differently from nonconstitutional claims for purposes of administrative exhaustion. Consequently, the Tenth Circuit is less likely to exempt constitutional claims from exhaustion mandates. The Tenth Circuit usually requires litigants to raise these claims before a responsible agency prior to seeking relief in court, absent a particularized showing of undue burden or futility. Notably, despite the Supreme Court's recent disparagement of administrative exhaustion of constitutional challenges to agency structure in Axon v. FTC and Carr v. Saul, the Tenth Circuit recently reaffirmed the continuing validity of its prior jurisprudence on exhaustion of constitutional claims, reiterating its pre-Carr assertion that unexhausted "structural challenges 'have no special entitlement to review' on appeal from the agency."1 This Article describes, defends, and discusses the strategic implications of the Tenth Circuit's approach to exhaustion of constitutional claims. It identifies specific aspects of Tenth Circuit jurisprudence that make the Tenth Circuit more likely to require exhaustion of constitutional claims. It explains that this approach comports with Supreme Court precedents because the Court has never categorically exempted constitutional claims from exhaustion mandates, despite the Court's disparagement of agency adjudication of constitutional claims in cases such as Axon and Carr. This Article also argues that the Tenth Circuit is reasonable to presume that administrative exhaustion of constitutional claims provides similar benefits to administrative exhaustion of other claims, absent a particularized showing to the contrary. It further argues that the procedural, legal, and administrative background of significant cases in which the Tenth Circuit required exhaustion of constitutional claims demonstrates the wisdom of this approach. The Article concludes by discussing strategic implications of the Tenth Circuit's nuanced approach to exhaustion of con-stitutional claims for agencies and litigants, both at the administrative stage and when litigating the exhaustion issue.
Through the lens of critical and comparative rhetoric, this Article examines how traditional legal rhetoric-the dominant analytical framework employed in the United States legal system-sustains capitalism and preserves inequities, such as financial precarity. This Article identifies the features that traditional legal rhetoric shares with the free capitalist market and then uses those features as an analytical framework to examine two cases that align with the theme of this Symposium on financial precarity and late capitalism: Bank of America v. Caulkett and Citizens United v. FEC. Comparing these two cases, the Court uses the same analytical tools of traditional legal rhetoric, albeit in contradictory ways, to reach outcomes that align with market values at the expense of the individual. More importantly, in both cases, the Court presents traditional legal reasoning as an objective, rational, unbiased, and neutral analytical framework, even though it is not actually objective, rational, unbiased, or neutral. This myth that traditional legal reasoning is objective, rational, unbiased, and neutral aligns with the near-identical myth that the market is an objective, rational, unbiased, and neutral place where transactions occur between individuals and entities who share similar bargaining power and play on a level field. Through these aligned myths, traditional legal rhetoric is essential to sustaining the free-market capitalism experiment. More importantly, traditional legal rhetoric cannot ever satisfactorily address the inequities of the marketplace like financial precarity because traditional legal rhetoric was never intended to be egalitarian. Thus, in order to truly begin solving the problems of capitalism, advocates must understand how traditional legal rhetoric creates inequities and challenge the form and substance of traditional legal rhetoric using other rhetorics, such as African Diasporic, Asian Diasporic, Indigenous, and Latine rhetorics. These insurrectionary rhetorics establish frameworks for challenging dominant imperialist/colonialist power, centering community, and solving the real problems of inequity created by traditional legal rhetoric.
Neoliberalism ushered in a debt-based economy for American society. The existing scholarship linking neoliberalism to personal indebtedness has mainly been at the macrolevel of analysis. There remains a need to investigate how neoliberalism operates at the microlevel and impacts the everyday lived experiences of consumers struggling with debt. Michel Foucault's concept of governmentality offers a useful analytical framework for unearthing the technologies that result in the subjectification of consumer debtors. A governmentality framework enables us to better understand how indebtedness presents both material and psychological harms for individuals and how neoliberal discourses are interiorized and facilitate a resurrection of financial identity. This research adds to existing governmentality studies by reporting on the responsive strategies to creditor demands and the moral self-accounting indebted individuals engage in when they fail to live up to the neoliberal model of the "entrepreneurial subject." Based upon thirty-six in-depth interviews with individuals possessing unmanageable debt and on the precipice of filing for bankruptcy, I argue that technologies of neoliberal governance serve to both discipline and recenter debtors as responsibilized entrepreneurial subjects who will reenter the economy and once again turn to a state of credit dependency.
For nearly two centuries, public sector employment in the United States was governed by the privilege doctrine, also known as the right- privilege distinction, which stripped public employees of their citizenship rights by denying them protection against adverse employment actions retaliating against their exercise of those rights. In 1967, in Garrity v. New Jersey, the U.S. Supreme Court reversed course and found, in the context of a government investigation of state police officers who allegedly fixed traffic tickets, that the state could not coerce those officers to waive their constitutional right to remain silent during the investigation by threatening to fire them if they did not answer questions posed to them. In Garrity's aftermath, the Court developed its Pickering-Connick-Garcetti framework, which regulates the extent to which public employers may take adverse employment actions against public employees who engage in speech that disrupts the workplace or interferes with its efficient operation. Under the Pickering-Connick-Garcetti framework, the Court permits public employers to take adverse employment actions against their employees when the speech is not on a matter of public concern, per Connick v. Myers; the speech is made pursuant to their job duties, per Garcetti v. Ceballos; or the speech is on a matter of public concern but the employer's managerial interests outweigh the employees' constitutional rights, per Pickering v. Board of Education. The Pickering-Connick-Garcetti framework was stable for about half a century until the Court once again disrupted that equilibrium in two cases decided in the past five years. In Janus v. American Federation of State, County, and Municipal Employees Council 31, the Court characterized union security clauses as unconstitutionally compelling speech from nonmember, union-represented public employees and therefore prohibited parties to public sector collective bargaining agreements from requiring those employees to pay any union dues. Then, in Kennedy v. Bremerton School District, the Court characterized a public high school football coach's post-game prayer on the fifty-yard line as expression protected under the Free Exercise and Free Speech Clauses of the First Amendment and concluded that the school district unconstitutionally disciplined that coach, ignoring the disruptive and potentially dangerous effect that his speech had on those attending the game. This Article traces historical developments from our country's inception to the present with an eye toward understanding the Court's most recent jurisprudence and its effect on public employee speech. Our analysis draws the following five conclusions: first, recent cases have greatly narrowed the categorical exclusion from First Amendment protection for public employee speech expressed in the course of employees performing their job duties, thereby greatly narrowing Garcetti; second, Janus has exempted compelled speech claims from the Pickering-Connick analysis; third, Kennedy has also exempted religious exercise claims from the Pickering-Connick analysis; fourth, Janus and Kennedy have significantly expanded the category of speech that constitutes speech on a matter of public concern, thereby narrowing Connick; and fifth, as demonstrated in Kennedy, the Court has greatly reduced deference to public employers' managerial judgments in weighing employer interests in the efficient delivery of public services against constitutionally protected speech interests. This is true even in cases where those managerial judgments are intended to prevent physical harm, thereby undermining public employer managerial authority. Having drawn those conclusions, we turn to the Janus-Kennedy framework to assess several hypotheticals set forth in this Article's introduction to show how these cases have shifted the analysis in favor of employee speech. Finally, we speculate whether this shift is toward strengthening employee free speech rights, in general, or more cynically, a shift toward speech that this particular Court favors-religious speech-and a shift away from speech that this Court disfavors-union speech.
Research within the natural and social sciences increasingly concludes that business as usual-economic growth-is leading to significant ecological disruption. Additionally, scholars have identified militaries as a significant driver of environmental degradation. Typically, these two social institutions are understood as being separate, but operating in relation, to each other. In this article, we focus on the interrelation and integration of the military and the economy through the rise of the military-industrial complex in order to illuminate the underlying logic that amplifies the environmental impacts of these institutions. More specifically, we assess how monopoly capital's dynamics influence the development of military weapons systems, leading to increased environmental change. Our analysis highlights the growing significance of private contractors in developing weapons systems and how this has institutionalized capitalist market dynamics and creative destruction within weapons systems innovation. As a result, planned obsolescence has become a central component increasing the demands on the environment and the overall production of social and ecological waste in relation to the military-industrial complex.
The twenty-first century saw rapid positive changes in the perception continues to sweep across the United States. This Comment analyzes laws in Arizona, Alabama, and Arkansas that target transgender children. The Comment posits that these laws are not effective as to their stated purposes of child protection. It also argues that the laws are facially discriminatory because they inexplicably consider transgender regret but ignore cisgender regret and disallow transgender affirmation but allow cisgender affirmation. The Comment goes on to argue that the laws' stated purposes of child protection are a pretext for discrimination and that the laws are nothing methods of preserving current protections for transgender people and recommends a deliberate effort be made to expand the social definition of and providing additional legal protections.
The Supreme Court's decision in N.Y. State Rifle and Pistol Ass'n v. Bruen jeopardized state licensing authorities' abilities to use discretion when deciding whether a person is legally permitted to carry a concealed gun in public places. If states' abilities to legislate on this issue are limited or states are unable to impose effective gun regulations, gun violence will certainly continue and perhaps increase. To solve this problem, and to undo the damage of Bruen, the Court must give power back to state legislatures so they can impose gun control regulations voted for by their citizens. There is extensive scholarly literature on the interpretation of the Second Amendment and gun regulations throughout history. Courts' overreliance on historical analysis and failures to balance Second Amendment interests with public welfare are epitomized by the Bruen decision. This comment connects rich Second Amendment literature to Bruen and argues that Bruen was wrongly decided by the Court's misapplication of District of Columbia v. Heller and McDonald v. City of Chicago, abolishment of the Courts of Appeals' well-established two-step analysis, and reliance almost solely on a historical analysis which disregarded history of the government regulating firearms in sensitive areas. It also discusses the tension between Bruen's implications and the principles of federalism.
Federal student loans represent a multibillion-dollar investment by American taxpayers. Although most student loans are repaid on time, a significant minority of borrowers struggle to repay their debts. This is particularly true when the education obtained using the loans does not translate into higher earning potential for the borrower. Policymakers have periodically focused attention on easing the burden of student debt. The sympathetic plight of many borrowers makes it easy to consider only their best interests. However, on the opposite side of every debtor is a creditor; in this case, it is the federal government as a representative of taxpayers. Failure to consider the best interests of creditors when considering debt forgiveness can lead to inefficient and unfair outcomes. When making decisions to forgive student debt, policymakers would do better to consider the repayment interests of taxpayers and grant loan forgiveness only when the costs of attempting to collect from borrowers exceeds the likely recovery, or when borrowers demonstrate an inability to satisfy all of their debts. Bankruptcy proceedings can offer targeted and efficient solutions to the student loan debt forgiveness problem and should be better implemented in this space. Furthermore, administrators of student loan programs should update lending criteria for future loans based upon past student loan performance.
Two long criticized prosecutorial tools-the felony murder rule and the accomplice liability doctrine-play an outsized role in the operation of American homicide law. Though each of these tools have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy is also defined by the way they function symbiotically and specifically to heighten racialized punishment. This Article addresses the weighty combined reach of the accomplice liability doctrine and felony murder rule, and proposes that racial bias has fueled the operation and survival of these tools. Specifically, it suggests that implicit racial bias has led to the automatic individualization of white men who are involved in group crimes, while at the same time created automatic deindividualization for Black and Latino men in similar situations, rendering these two doctrines complicit in state sanctioned racialization. This Article hypothesizes that the phenomena of implicit racial bias and white individualization sustain the felony murder rule and accomplice liability doctrine, avoiding legislative and judicial responsibility to constrain the unfair expansion of criminal liability. A national empirical study conducted by the authors supports the claim of racialized group liability within the felony murder rule by demonstrating that Americans automatically individualize white men, yet automatically perceive Black and Latino men as group members. In addition to this core finding, the study also shows that mock jurors disproportionately penalized men with Latino-sounding names compared to men with white or Black-sounding names, ascribing to Latino men the highest levels of intentionality and criminal responsibility in a group robbery resulting in a homicide. Contextualized within the troubled history of the felony murder rule and accomplice liability doctrine, the Article concludes by calling for the abandonment of the felony murder rule in group liability situations.
In Samia v. United States, the United States Supreme Court grappled with whether the admission of a nontestifying codefendant's redacted confession that implicates a nonconfessing codefendant violates that nonconfessing defendant's right to confront opposing witnesses. The Court's majority framed this issue as a conflict between defendants' rights and judicial economy and then declared judicial economy the winner. This resolution threatens to elevate governmental interests over defendants' rights to face their accuser and to test opposing witnesses' memory and sincerity. Moreover, and perhaps more importantly, in holding that introducing such a confession does not violate the Confrontation Clause, the Court endangers defendants' rights to force witnesses into the gaze of twelve jurors who will judge that witness and determine whether they are believable. The Samia Court said that the Confrontation Clause does not protect defendants from codefendant confessions of this kind because doing so would come at too high a price. Through an analysis of the Court's majority, concurring, and dissenting opinions, as well as precedent cases and policy considerations, this Note demonstrates that the Court wrongly decided Samia and that the exaltation of judicial economy over the right of confrontation is a price that the Sixth Amendment cannot afford to pay. This Note concludes with a discussion of the implications of the Court's holding in Samia as it relates to the growing power of prosecutors in the American judicial system.
