Institutional and political forces create strong inertial pressures that make the updating of legislation a difficult task. As a result, laws and regulations often stagnate, leading to the continued existence of obsolete rules and policies that serve long-forgotten purposes. Recognizing the inertial power of past legislation, legislatures over the last few decades have increasingly relied on a perceived solution—temporary legislation. In theory, temporary legislation avoids inertia because it requires legislators to make a deliberate choice to extend it. This Article argues that temporary legislation is a double-edged sword. While some temporary laws ultimately expire, many perpetuate through cycles of extension and reauthorization. Close examination reveals that temporary legislation often results in its own inertial force, leading to the unintended permanence of what is originally believed to be only a provisional measure. Using a case study from a large public subsidy adopted as a localized fix to a temporary problem, the Article demonstrates how the subsidy has inadvertently grown in scope and in size, creating its own inertial force that made its repeal exceedingly difficult. Path-dependent dynamics of temporary legislation affect not only present-day policies, but also the ability of legislatures to resist status quo bias and bring about legal change. The Article concludes with normative insights on ways to utilize flexible rulemaking whilst circumventing legislative inaction. Careful design of expiring provisions that is aware of the inertial power of temporary legislation and can effectively ensure that laws are kept or discarded given their merits, not by force of history.
In _McDonnell Douglas Corp. v. Green_, the U.S. Supreme Court developed a framework to assist courts in assessing individual disparate treatment claims based on circumstantial evidence. Under that test, plaintiffs alleging discrimination under Title VII must first show a prima facie case of discrimination. Since _McDonnell Douglas_, courts have modified the test by requiring plaintiffs to demonstrate that they were treated less favorably than a similarly situated comparator employee who is outside the plaintiff’s protected class. Courts disagree, however, on what it means for employees to be similarly situated. Some courts strictly interpret the similarly situated requirement; others caution against an overly mechanical approach and employ a flexible standard instead. As a result, a plaintiff could successfully plead a prima facie case of discrimination in one federal circuit but fail in another. To resolve this disparity, this Note proposes that the U.S. Supreme Court adopt the Seventh Circuit’s standard for comparator evidence due to its consistency with the Court’s precedent, its cohesion with the purposes underlying Title VII, and its practical benefits for plaintiffs alleging a prima facie case of employment discrimination.
The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption— evidence of a current witness’s prior statement is offered and, for some intervening reason, her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The U.S. Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross- examine a witness claiming no recollection of having seen the crime or having identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial, or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York— could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.
The Georgia Animal Protection Act—a set of animal protection laws that has remained unchanged for nearly two decades—was passed to promote animal welfare across the state. Although the Act was progressive at its inception, its failure to curb the atrocious conditions created by puppy mills has become increasingly apparent, resulting in serious consequences for both consumers and dogs. Georgia must amend its animal protection laws to shift the costs of puppy mills to where they belong: on pet sellers. Among other innovative solutions to this problem, many states have enacted “puppy lemon laws” that generally provide pet purchasers with the option to return, exchange, or be reimbursed for reasonable veterinary expenses for their “sick” puppy. But traditional puppy lemon laws may be put to better use as cost internalization tools rather than as mere consumer remedies. This Note advocates for a puppy lemon law that provides the consumer with just one remedy: reimbursement for reasonable veterinary costs after purchasing a sick puppy from a pet seller. Traditional puppy lemon laws have many weaknesses, and the true utility of such laws may be in deterring pet sellers from supporting puppy mills in the first place. By enacting a progressive puppy lemon law that considers all of the interested parties, alongside the other recommendations in this Note, Georgia can secure its position as a state with model animal welfare laws and—most importantly—can save lives.
This Essay describes the “voting rights paradox”—the fact that despite America’s professed commitment to universal enfranchisement, voting rights legislation throughout U.S. history has arisen in some states to serve antidemocratic, exclusionary ends. This Essay argues that this contradiction comes into focus when the right to vote is understood as having as an ideological driving force based on worthiness for admission to the franchise. This ideology of worthiness persists because the right to vote is dependent on political decisions left to the political branches and the majority’s willingness to allow propaganda to influence the scope of the franchise. Ultimately, this Essay argues that the voting rights paradox is effectively the “invisible hand” influencing the American law of democracy. The only way out of the paradox is to reorient voting rights towards a communitarian conception that fosters an authentic understanding of a universalist right to vote. This must be expressed by (and coupled with) fundamental, structural transformations in the mechanisms for allowing citizens to exercise their voting rights.
