The Supreme Court struck down race-conscious admissions in universities, but it left the military academies unscathed because of the "potentially distinct conscious admissions policy. It describes the history and procedures of West Point's admissions, focusing on how it uses race. It also describes the legal framework of strict scrutiny, the military deference doctrine, and how they may interact with West Point's national security interest in diversity. It concludes by offering recommendations to West Point for how to achieve excellence through multi-domain diversity without violating the Constitution. The author contends West Point's admissions policy will fail strict scrutiny, even under a deferential framework. West Point's national security interest in a racially diverse officer corps is likely too amorphous to be a compelling interest because it is not sufficiently measurable to permit meaningful judicial review. And its raceconscious admissions process is not narrowly tailored because it promotes unconstitutional racial balancing through functional quotas and racially segregated admissions tracks. But despite this critical view on the legal issue, this Note acknowledges many of the important values West Point defends. In short, diversity is good, but affirmative action is unconstitutional.
This Essay explores how disability factors into immigration and citizenship law by focusing on three naturalization cases that reveal aspects of the “good moral character” element. A noncitizen’s own disability has been used as grounds for exclusion since the earliest immigration laws. Yet, as it turns out, noncitizens who participate in the eugenic mission of immigration law have been greatly rewarded.
Debates over legal interpretation, such as those between textualists and purposivists or between originalists and living constitutionalists, are familiar and longstanding. Yet there remains disagreement over what these debates are really about-over what interpretive theories aim to achieve. For instance, do interpretive theories aim to grasp what legal texts communicate? Do they aim to explain how legal texts make law? Are they rough heuristics for discerning the law? Or are they instructions for how to go on when the law runs out? Answering this "meta-interpretive" question about what we are debating when we debate legal interpretation is key to making progress in these debates. This Article frames the meta-interpretive question and explores how a widely held view in general jurisprudence-Hartian Positivism-answers it. Hartian Positivism claims that what counts as law in any jurisdiction depends on what officials in that jurisdiction generally accept and treat as law. If Hartian Positivism is right, then interpretive theories are primarily about interpretation in a remedial sense: They concern how legal actors should exercise discretion when the law runs out-how they should fill in the law's gaps. This remedial answer, in turn, has important implications for how judges and theorists should (and should not) defend their preferred interpretive theories.
In her viral victim impact statement and subsequent memoir, Know My Name, Chanel Miller described her experience as a survivor of sexual violence before, throughout, and after Brock Turner's trial. Turner's sentencing sparked nationwide outrage that caused legal reform in the name of benefitting survivors; however, the reforms did not bring about procedural change in how trials for sex crimes are conducted nor directly address the injustices Miller expressed. One such injustice is epistemic injustice, which enacts harm on a person's credibility, their perceived capacity to be deemed credible by others, and their ability to have their knowledge considered as legitimate by society. This Note argues that the evidentiary framework governing the admissibility of criminal defendants' and sex-offense victims' character testimony during trial furthers epistemic harm toward survivors. This Note proposes a reform that would combat the imbalances of existing character-bolstering evidence rules, lessening their potential to inflict epistemic harm. This Note carefully considers the ramifications of such reforms for marginalized groups, including both survivors and defendants. Lastly, this Note advocates for a future where our social and collective understanding about sexual violence is more inclusive and accurate, and where survivors can regain more of their agency-both inside and outside of the courtroom.
Rather than focus on the multiple ways in which lawyers guide movement activists through the thickets of law, we want to focus on the ways in which movement activists and a mobilized community can change thinking about the content of law and thus the horizon of the possible and sustainable.
Since the Supreme Court's characterization of race-conscious admissions policies as unconstitutional in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College ("SFFA"), the role of race in higher education has been under attack. States have passed bans on Diversity, Equity, and Inclusion ("DEI") efforts leading to the closure of DEI offices and programming in universities. In the beginning of his second term in office, President Trump issued an executive order terminating DEI efforts in the federal government. In response to an era of growing hostility to DEI and race-conscious admissions policies, challenges are likely to arise regarding the constitutionality of race-based affinity organizations in higher education. Before SFFA, litigation against race-based affinity organizations in schools and workplaces focused on allegations that such organizations violated the Equal Protection Clause of the Fourteenth Amendment. In the current anti-DEI era, race-based affinity organizations in higher education are also likely to encounter challenges based on the rationales underlying SFFA, state bans on DEI, and President Trump's executive orders terminating DEI. Race-based affinity organizations in higher education are integral to promoting the sense of belonging and inclusion for students of marginalized racial groups and improving the retention of such groups. As a result, this Note discusses the history of race-based affinity organizations and analyzes the challenges to race-based affinity organizations based on prior litigation under the Equal Protection Clause, the expansion of the rationale in SFFA, and increasing state and federal bans on DEI. This Note proposes two frameworks to defend the constitutionality of race-based affinity organizations in higher education in order to preserve their many benefits to students of marginalized racial groups, especially in an era of growing hostility to DEI and race-conscious policies.
The scope of federal governmental exemption from ordinary liability and judicial scrutiny is highly contested. That contest has never been more important than right now, as the Trump Administration pushes legal and oversight boundaries, asserting its prerogative to disregard not just prior practice but statutory and regulatory control. This Article addresses one key arena for the ongoing clash-civil rights litigation. Section 504 of the Rehabilitation Act of 1973 forbids disability discrimination in the operation of federally assisted and federally conducted programs and activities. That prohibition reaches not just intentional discrimination but refusals to offer reasonable accommodations to "assure meaningful access" to programs. The federal government's immunity from damages for Section 504 violations leaves injunctive relief as the only litigation remedy for violations. Yet the government frequently argues-and courts have sometimes agreed-that when a federal agency declines or fails to obey the Rehabilitation Act's statutory command by discriminating against people with disabilities, the victims of that discrimination have no recourse at all. This Article rebuts this conclusion. Correctly understood, the Rehabilitation Act offers more than the federal government's unenforceable promise not to discriminate. Injunctive lawsuits enforcing Section 504 must be allowed against federal actors because there exists both a cause of action and a waiver of sovereign immunity. The immunity waiver is accomplished by the Administrative Procedure Act ("APA"), 5 U.S.C. 702. The cause of action arises under any (or all) of three theories: Section 504, the courts' inherent equitable authority, or the Administrative Procedure Act are each independently plausible sources. This issue is important for its own sake-disability antidiscrimination requirements help millions of people, and where the federal government has declined to follow the law, injunctive enforcement by federal courts is a key safeguard (not to mention that the possibility of court enforcement casts a helpful shadow, promoting statutory compliance). More broadly, while overreliance on courts as civil rights saviors would be ill-advised, potential checks on government overreach are important to bolster. This Article contributes to that vital project.
Studies consistently show that prosecutors disproportionately use peremptory challenges to strike people of color from juries. Several states have endeavored to address this well-documented problem by fortifying the Batson framework. Arizona, however, recently took the radical step of eliminating peremptory challenges altogether. This groundbreaking move was praised by many as a bold effort to address racial discrimination. Now, other states are considering following Arizona's lead. This Article argues that, despite its simplistic appeal, peremptory elimination is not necessarily a racial justice win. In fact, given the adaptability of racism, there are reasons to think prosecutors will innovate and find other ways to discriminate against jurors of color. Defendants, particularly defendants of color, will suffer too, as the wholesale elimination of peremptory strikes robs defendants of the ability to prevent potentially biased jurors from deciding their fate, and importantly, disempowers defendants in a system where the power dynamics are already incredibly lopsided. Thus, this Article urges caution before scholars trumpet and policymakers promote proposals to eliminate peremptory strikes as a racial justice measure. In sounding this cautionary note, this Article hopes to serve as a broader meditation about looking to "simple" solutions to address discrimination without adequately considering the complexities of race and racial bias underlying the problem.
The equity concerns in energy policy can seem like a game of infinite whacka-mole. Measures that might address one crisis here—say, high carbon emissions or affordability for ratepayers—mean another crisis pops up over there, such as a land use or labor conflict.1 Yet within the energy policy whack-a-mole game, there is one entity that rears its head often: the investor-owned utility (“IOU”), also known as the for-profit company tasked with furnishing the public necessity of electricity to most people.2 It is so often the IOU that wields its political and economic power to jealously guard its investments in fossil fuel infrastructure, inflate costs and rates with its new infrastructure installations, and resist redistributive measures for workers, economic development, and ratepayers.3 Scholars and activists alike often agree that overcoming the entrenched power of the incumbent IOU is one key to more equitable, lower carbon energy policy at the federal, state, and local levels.4 Deploying the utility toward more equitable ends might not win the whack-a-mole game, but doing so could still whack a lot of moles at once.
Ever since the protests of 2020, the nation and its legal academics have engaged in a wider reckoning with the police brutality crisis and its racist origins. But often overlooked within scholarship is the ableist nature of policing and the severely disproportionate impact police violence has on disabled individuals-particularly disabled individuals of color, whose disabilities are rendered invisible. This Note brings attention to the potential of the Americans with Disabilities Act ("ADA") to hold police departments accountable for unjustified violence and provide victims with another avenue for compensation. After walking through a theory which allows Title II of the ADA to be applied to police departments despite the protections of sovereign immunity, this Note considers the effect an ADA claim will have in tandem with a claim under 42 U.S.C. 1983, which allows victims to sue public officials for violations of constitutional rights. Because Section 1983 claims can be precluded by other, more comprehensive statutory schemes, plaintiffs must have a clear understanding of the distinctions between each claim they raise. This Note outlines how, in police brutality cases, the ADA can protect distinct "constitution-like" interests that do not overlap with or invalidate Section 1983.
In his article Contested Criminalization, Professor Steven Koh advances a theory of how the United States sets its global criminal justice policy, in which it uses criminal law alongside or instead of tools like diplomacy or sanctions.But Koh’s account does not mine the rich body of evidence from the past decade of cybercrime indictments—U.S. indictments of foreign nationals whohave committed criminal cyber acts against the U.S. and its interests. Investigating the cybercrime context reveals additional complexity in the process of foreign affairs criminalization. First, these indictments aren't just about naming and shaming, or about the typical dimensions of criminal alw. They're sophisticated foreign policy tools that coordinate and moderate international sanctions and global norms. Second, these indictments do not only enhance cooperation: they alternately create space for and slow the tempo of international cooperation on this issue, according to U.S. interests. Last, by relying on existing criminal statutes rather than new treaties, the U.S. maintains control over the narrative and resists alternative frameworks like the UN Cybercrime Convention backed by Russia and China.
This Essay examines the experiences of women of color in the legal profession and the manner in which they are treated differently, adversely affecting their career trajectories. Women of color in the legal profession have a long and tortured history of facing unique barriers to the kinds of opportunities that lead to successful careers. One of these barriers is exclusion from leadership roles in law firms, bar associations, academia (until recently), government, and corporations. At a time in our history when Diversity, Equity & Inclusion ("DEI") initiatives are not only scrutinized but also weaponized in unprecedented ways, when opponents are actively deploying concerted efforts to completely dismantle DEI, we should be concerned about the heightened adverse impact anti-DEI efforts will have on women of color. Incorporating evidence from studies published by the American Bar Association Commission of Women in the Profession, such as "Visible Invisibility: Women of Color in Law Firms" and "Left Out and Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-Term Legal Careers for Women of Color,"1 and from my own personal experiences as well as those of other women of color in the legal profession, this Essay argues in support of the premise that equity, rather than equality alone, is necessary to finally provide women of color in the legal profession with the opportunities they have earned and deserve.
Expert opinion about dangerousness-the risk of reoffending-is commonly introduced at sentencing, criminal commitment proceedings, and some types of pretrial detention hearings. This Essay argues that the rules governing the admissibility of scientific evidence should apply to this testimony and that, on that assumption, such evidence must be (1) "material" (logically relevant, empirically generalizable, and epistemologically germane), (2) "probative" (a measure of accuracy, which is more stringent when the evidence is from an expert), (3) helpful to the factfinder (through promoting "incremental validity"), and (4) presented in a non-prejudicial manner (i.e., in a way that minimizes the possibility it will be misused or misinterpreted). Application of these rules to expert testimony about risk would have significant implications not only for its admissibility in criminal cases but also for the way that testimony is expressed, the law governing dangerousness, and the methods used to assess it.
