VOLUME 83:1 (Forthcoming)
Articles
Authors: Amber Baylor, Clinical Professor at Law, Columbia Law School.
Title: Drug War Repairs Guarantees
Abstract:
Drug legalization policies, especially cannabis legalization, have been a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on altering sections of the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.
Legalization cannot deliver on its reparative terms without guarantees. Such guarantees, or “guarantees of non repetition,” are a robustly developed area of post conflict repair in transitional justice systems. The state and impacted people collaboratively develop these guarantees to protect against retrenchment. The process of developing reparative guarantees entails inquiry among survivors, implementation of policy establishing new norms, and accountability mechanisms. U.S. legalization reforms often misunderstand, under investigate, and devalue the regime like nature of the drug war as experienced on the ground. In the case of drug war repair, such guarantees could abolish family courts’ abilities to restrict parenting rights over legal cannabis use. Guarantees may also require reform or abolition of the fruits of the militarized drug war, such as violent SWAT style raids and no knock warrants, on communities. Legalization and reparative drug war reforms require guarantees against retrenchment.
Drug reform advocates in the U.S. have highlighted the potential and importance of guarantees through drug war reparations demands. The guarantees based framework developed through this Article advances this work and emerging scholarship on U.S. drug legalization and drug war repair. Legalization without guarantees against dominant harms is palliative, or tension easing reform, rather than institutional repair. Guarantees provide buffers from retrenchment when political tides turn. This Article develops drug war repair guarantees conceptually and justifies a basis for applying guarantees to drug reform efforts. Earnest repair to individuals and communities devastated by the drug war requires state reparative guarantees.
Author: Joshua C. McDaniel, Assistant Clinical Professor of Law, Harvard Law School.
Title: Religious Minorities and Secular Rights
Abstract:
When religious claimants sue to protect their ability to practice their faith, they often invoke legal guarantees that specifically protect religious exercise. Yet historically—and still today—they also rely on secular guarantees like freedom of speech or equal protection. And their victories on these grounds set precedents not just for believers but for everyone. As a result, many rights we now take for granted stem from religious minorities pressing for the ability to preach, proselytize, and publish their religious views. No account of free speech law would be complete, for instance, without considering the pathbreaking decisions won by Jehovah’s Witnesses.
Although scholars have recognized the role of Witnesses and other religious actors to First Amendment law, little scholarship has examined the broader phenomenon of religious actors advancing secular rights or traced how their struggles have affected secular individuals in secular contexts. To begin to fill that gap, this Article offers a historical account of how religious minorities inspired much of the Bill of Rights’ secular freedoms and how Jehovah’s Witnesses in particular secured many of those rights in court. The Article also shows how those victories laid the foundation for secular social movements—most notably how Witness cases in the 1930s and ’40s provided crucial protections for the Black civil rights movement.
Better understanding religious minorities’ role in shaping our basic secular freedoms has important implications for how religious claimant cases—both old and new—should be thought of today. In disputes ranging from a high school coach praying after games to companies like Facebook and YouTube challenging state regulation of their content feed decisions, litigants and courts must decide both when to resolve religious claimants’ cases on secular grounds and, conversely, whether to resolve secular claimants’ cases by analogizing to protections afforded to religiously motivated actors.
Author: Meg Penrose, Professor of Law, Texas A&M School of Law
Title: Fifty Ways to Leave Your Lover: Using State Constitutions to Escape the Dead Hand of Article V
Abstract:
Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty first century Americans to decide twenty first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.
Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can respond to new technology and desired rights through state constitutional amendments. Unlike our federal Constitution, American state constitutions align with Jefferson’s vision of living under the present generation’s desires as opposed to remaining captive to the desires of those long since gone. State governments have provided the periodic change that enables Americans to live under a rarely changed national Constitution. This dual sovereignty, a balance of power between the national government and individual state governments provides a symbiotic system of flexible permanence.
This Article discusses the role that state constitutions, particularly Western state constitutions, play in moderating Article V’s inflexible demands for constitutional change. While Article V erects super majority standards and only permits amendments from either the federal or state legislatures, many Western state constitutions provide the opportunity for citizen initiated change. This “check” on the legislatures and courts provides an opportunity for citizens to have their voices heard and their demands considered. Citizen initiatives allow Americans to temper Article V’s stagnancy by providing greater individual rights and protections at the state level. This Article seeks to highlight state constitutional power as an important counter to Article V’s continuing impediment to achieving Jefferson’s constitutional philosophy. Constitutions belong to the living generation.
Author: Joseph A. Seiner, Professor of Law and Oliver Ellsworth Professor of Federal Practice, University of South Carolina School of Law.
Title: Long COVID, Silent Suffering, and Work
Abstract:
Though most recover from COVID quickly, countless others remain chronically ill. Five years after the start of the pandemic, Long COVID continues to harm the economy, forcing thousands from employment at a time when businesses are struggling to find workers. With over thirty million individuals in the United States having contracted Long COVID, the illness cannot be dismissed as merely malingering or psychosomatic in nature.
With no diagnostic test for identifying Long COVID, skepticism about the illness persists. Many are scared to acknowledge their affliction with the disease and fear being stigmatized. Those who suffer silently struggle to perform their job or leave employment altogether, thereby denying the economy of good workers. The workplace implications of this illness must no longer be ignored, and a new approach to addressing Long COVID is needed.
This Article provides a framework to help these workers, proposing the adoption of “The Long COVID Doctrine.” Through education, accommodation, leave coverage, access to benefits, and a renewed focus on mental health, this framework offers a comprehensive approach to this pervasive problem. This doctrine further provides a fresh look at how the Americans with Disabilities Act should apply to workers suffering from this condition. This multi faceted approach can help avert the devasting effects this illness has had on the economy and restore the rights of these struggling employees.
Author: Govind Persad, Associate Professor, University of Colorado Law School
Title: Against a Medical Exception to Equal Protection
Abstract:
Government regulations of medicine sometimes treat patients differently based on their race or sex. Does heightened scrutiny apply to such regulations—as is usual when law treats someone differently based on a protected characteristic? Or is there a medical exception to equal protection?
Recently, in United States v. Skrmetti, the Supreme Court upheld a law that restricted access to medical treatments for transgender minors. Though its holding did not rely on medical exceptionalism, its discussion reinvigorated interest in a “medical exception” to equal protection: that medical decisions are exempt from the searching review applied when governmental decisions consider protected characteristics.
For decades, courts have rejected occasional calls for medical exceptionalism, asserting that heightened scrutiny applies whenever government acts based on protected class membership. Skrmetti feints toward, though does not create, a loophole that would shield sex or race based clinical guidelines—even potential race based vaccination schedules—from meaningful constitutional review. This Article traces the history of medical and other exceptions in equal protection jurisprudence and argues that a medical exception is unsound. Arguments that courts should leave high stakes medical debates to experts, agencies, or legislatures misunderstand heightened scrutiny’s purpose, which is precisely to “smoke out” illegitimate uses of protected classifications. The judiciary’s role is not to uncritically defer to classifications in medicine, but to scrutinize them.
This Article concludes by exploring avenues to resist a doctrinal shift toward medical exceptions. Such avenues include cabining or reversing Skrmetti, invoking federal antidiscrimination statutes that lack any medical exception, and turning to state constitutions that offer more robust equal protection guarantees. Rather than allowing medicine to become a sphere of diminished antidiscrimination protections, this Article reaffirms that safeguards against discrimination should extend to all contexts, including those involving life and health.
Student Notes
Author: Alexandra M. Hudson, J.D. Candidate, Washington and Lee University School of Law
Title: Voices from Beyond the Grave: Protecting the Audio of Murder Victims through (Intellectual) Property Law
Abstract:
For most, the audio of a deceased loved one is a treasured keepsake. For the families of violent crime victims, it can be a harrowing reminder of their loved one’s death. And it can also be a source of content for true crime podcasters.
When a person dies from a violent crime and their killer is prosecuted, the audio associated with the crime (body camera footage, 911 calls, surveillance footage, etc.) frequently becomes public record. Public record laws vary greatly across the United States but typically err toward disclosure to promote government transparency. Broad public record laws benefit the public by permitting journalists, researchers, and individuals to access records used to hold governments accountable. But these same public record laws often provide little, if any, protection for the audio of deceased violent crime victims, thereby enabling true crime podcasters to access and publish recordings of a person’s most vulnerable and traumatic moments without their family’s consent.
This Note uses property and intellectual property law to explore how states can protect decedents’ audio from true crime podcasters while still maintaining their public record laws. States can grant victims’ families a limited right to prevent podcasters from using their loved ones’ audio by expanding an estate’s property rights. Through these changes, states can reduce the revictimization of decedents’ families and protect the voices of victims.
Author: Tina Pham, J.D. Candidate, Washington and Lee University School of Law
Title: Education as a Right, Homelessness as a Crisis: The Displaced Futures of American Homeless Youth
Abstract:
Homelessness in the United States has been a humanitarian crisis affecting youth as one of its most vulnerable populations. Education is one of the few opportunities to break through this cycle of poverty. Recognizing the gap in education for homeless students and other students, Congress enacted the McKinney Vento Act, which guarantees homeless youth educational rights to access public education. Following the Supreme Court’s decision in Grants Pass v. Johnson, however, the rise of criminalizing policies, such as encampment sweeps and anticamping ordinances, threatens the success of the Act. These policies not only destabilize families, but they also leave homeless youth disadvantaged because they obstruct educational access, displacing their futures.
This Note argues that criminalization measures directed at homelessness, such as encampment sweeps, undermine the educational rights of homeless youth under the McKinney Vento Act. It examines current federal and state legislative frameworks governing homelessness against the rise of criminalizing policies post Grants Pass. Then, it concludes that these policies create challenges for homeless students in violation of the Act. Finally, this Note proposes legal claims plaintiffs could bring under the Eighth Amendment’s Excessive Fines Clause and the McKinney Vento Act in addition to a broader policy reform that would ensure state and local compliance with the Act. By shedding light on the barriers homeless youth face in accessing education and reframing education as an essential right, this Note emphasizes the urgent need for legal and fundamental interventions to preserve the futures of homeless youth.
