Conflict abounds on America's inland waterways. Many Americans believe they have the right to boat or fish on any waterway that can float a recreational vessel. Landowners often contend they own the beds of non-navigable waterways. Early American judges and jurists were often confused about the details of navigability doctrine in English common law and equally perplexed about how to apply that doctrine to waterways in the new republic. In response, during the nineteenth century, American courts developed a new test for determining proprietary title to submerged land called the highway of commerce test. American courts then relied on this test to exclude the public from "non-navigable" inland rivers and lakes, even though the waterways were easily accessible with small recreational boats. In the late-nineteenth and early-twentieth centuries, American courts started to reconceptualize public recreational use rights in inland waters. Building on a handful of foundational decisions, American judges began to redefine navigability in terms of a waterbody's capacity to sustain recreational boating, and then, in a spurt of jurisprudential innovation, began to hold that the public can enjoy an easement or servitude for recreational use in the water of an inland waterway even if it is non-navigable under the highway of commerce test and its bed is privately owned. This jurisprudence flourished in the second half of the twentieth century as state supreme courts in every region embraced what this Article calls the Public Recreational Servitude Approach to Inland Water (PRSA). The virtues of this jurisprudential innovation can be appreciated through a diverse range of contemporary property theories. This Article contends that the PRSA deserves to be celebrated, not feared.
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.
