Ruth Bader Ginsburg

IN MEMORIAM:
JUSTICE RUTH
BADER GINSBURG

A series of tributes honoring the life and legacy of
Justice Ruth Bader Ginsburg.

No. 3

Health Law
CLR Forum

RACE, RISK, AND PERSONAL RESPONSIBILITY IN THE RESPONSE TO COVID-19

Aziza Ahmed* & Jason Jackson**

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the[...]

State and Local Government
Article

TAKINGS LOCALISM

Nestor M. Davidson* & Timothy M. Mulvaney**

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions[...]

Administrative Law
Note

CLOSING THE TOUHY GAP: THE APA, THE FRCP, AND NONPARTY DISCOVERY AGAINST FEDERAL ADMINISTRATIVE AGENCIES

Ben Covington*

In the 1951 case United States ex rel. Touhy v. Ragen, the Supreme Court determined that courts can’t hold federal agency officials in contempt for refusing to comply with nonparty subpoenas if they do so pursuant to valid agency regulations. Though the Court suggested that litigants could still challenge these noncompliance decisions, it didn’t flesh out what that process would look like. Following Touhy, federal[...]

Administrative Law
Article

DELEGATION AT THE FOUNDING

Julian Davis Mortenson & Nicholas Bagley*

This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized[...]

Criminal Procedure
Note

PLEADING WITH THE PAST: ASSESSING STATE APPROACHES TO LAFLER AND FRYE’S COUNTERFACTUAL PREJUDICE PRONG

Alex C. Werner*

Plea bargaining dominates the modern criminal justice system. Constitutional safeguards, however, have only slowly followed this fundamental shift in criminal adjudication. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court extended the Sixth Amendment’s right to counsel to situations in which deficient counsel leads a defendant to forgo a beneficial plea agreement. The Court’s test left state court[...]

Constitutional Law
Essay

CONFRONTATION IN THE AGE OF PLEA BARGAINING

William Ortman*

A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s[...]