Vol. 119 No. 8

Critical Theory
Essay

FAMILY SEPARATION AS SLOW DEATH

Stephen Lee*

During the Trump Administration, disturbing images of immigration officials forcibly separating parents from their children at the U.S.–Mexico border have rightly invited an onslaught of criticism. Voices across the political spectrum have called these actions immoral and insisted that this is not who we are. The underlying moral imperative of this critique is correct, but this Essay argues that it rests on a mischaracterization of our immigration[...]

Free Exercise
Note

DIVINING A DEFINITION: “SUBSTANTIAL BURDEN” IN THE PENAL CONTEXT UNDER A POST-HOLT RLUIPA

Bret Matera*

This Note attempts to resolve a significant impediment to the religious free exercise of prisoners. The Religious Land Use and Institutionalized Persons Act (RLUIPA) forbids the government from placing a “substantial burden” on a prisoner’s religious exercise. Congress did not define substantial burden in the statute, instead indicating that courts should rely on the Supreme Court’s free exercise jurisprudence for a definition.

Despite[...]

Anti-Discrimination
Article

PROCESS SCRUTINY: MOTIVATIONAL INQUIRY AND CONSTITUTIONAL RIGHTS

Joseph Landau*

The topic of political branch motivation has long bedeviled courts and scholars, especially when facially neutral government action is under constitutional challenge. The definitive decision in this realm, Washington v. Davis, holds that a finding of discriminatory intent is necessary to prompt more exacting scrutiny of facially neutral legislation or administrative action. One major problem with this rule is that it risks licensing malintent by[...]

Administrative Law
CLR Forum

PURCHASING HEALTH? THE PROMISE AND LIMITS OF PUBLIC HEALTH INSURANCE

Kristen Underhill*

The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and […]

Corporate Governance
Article

INDEX FUNDS AND THE FUTURE OF CORPORATE GOVERNANCE: THEORY, EVIDENCE, AND POLICY

Lucian Bebchuk* & Scott Hirst**

Index funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies—can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article[...]

First Amendment
Note

I SAW THE SIGN: NIFLA V. BECERRA AND INFORMED CONSENT TO ABORTION

Thea Raymond-Sidel*

In 2018, the Supreme Court held in National Institute of Family & Life Advocates v. Becerra (NIFLA) that requiring a crisis pregnancy center to place a sign in its waiting room alerting people to available abortion services elsewhere violated the First Amendment. Abortion providers are often faced with similar requirements—but the Court’s cursory treatment of the First Amendment in Planned Parenthood of Southeastern Pennsylvania v. Casey[...]

Criminal Law
CLR Forum

FORESEEABLE POLICE SHOOTINGS

Katherine Macfarlane*

Introduction No matter how it begins, a police encounter may end in death, especially when the encounter involves people of color. There is no safe haven. Police-involved shootings happen everywhere—on the street, in a parked car, in a public park, or inside one’s own home. Police violence is a constant, its occurrence so predictable that […]

Civil Rights
Note

LEVERAGING TITLE VI AND THE ADMINISTRATIVE COMPLAINT PROCESS TO CHALLENGE DISCRIMINATORY SCHOOL DRESS CODE POLICIES

Jabari Julien*

Varying enforcement of school hair policies and other grooming regulations against students has contributed, at least in part, to disparate exclusion of Black students from classroom and extracurricular activities. The consequences arising out of exclusion from school activities can be severe, ranging from lower academic performance to early involvement with the criminal justice system. Generally, disputes around such policies have been settled[...]