As the use of predictive technology expands, an increasing number of states have passed legislation encouraging or requiring judges to incorporate recidivism risk assessment algorithms into their bail, parole, and sentencing determinations. And while these tools promise to reduce prison overcrowding, decrease recidivism, and combat racial bias, critics have identified a number of potential constitutional issues that stem from the use of these algorithms....
Note
Beginning in 2010, the Supreme Court severely limited states’ ability to impose juvenile life without parole sentences. In a seminal case, Miller v. Alabama, the Court banned mandatory life without parole sentences for juveniles and declared that only the “rare juvenile offender whose crime reflects irreparable corruption” should be made to spend the rest of their lives in prison. While Miller has been the subject of much...
As the impacts of climate change become increasingly severe and perceptible, corporations that continue to disregard the risks created by the Earth’s shifting climate stand to suffer significant financial harm. Particular sectors, such as the oil and gas industry, are especially susceptible to the effects of climate change and are already experiencing losses in value due to extreme weather events, disrupted operations, and environmental regulations....
Faced with potentially staggering human and economic costs, governments around the world are beginning to plan and implement adaptive measures designed to stem the effects of climate change. Some of these adaptations will likely benefit certain property owners and communities at the expense of others. For example, seawalls intended to save valuable parcels of land from sea-level rise could wind up forcing seawater onto neighboring parcels that...
An approaching shortage of OBGYNs threatens the demands of a growing population of reproductive-age women. This threat is exacerbated by a shaky medical–legal structure that places a disproportionate burden on the OBGYN profession—a burden that patients are ultimately left to share. This Note explores the delicate interaction between medical malpractice litigation, the high-risk OBGYN profession, and patients’ access to healthcare. It then...
Pro-life pregnancy centers have been criticized for attracting clients through false or misleading marketing and, once clients are through the door, for presenting false or misleading—or at least incomplete—information. A common contemporary means of regulating pregnancy centers is through statutes that require pregnancy centers to give notice that their services are not comprehensive. In 2018, in National Institute of Family and Life Advocates...
Diagnostic tests are often patented using broad method claims, which allow inventors to secure the greatest possible protection for their inventions. However, several recent Supreme Court and Federal Circuit cases invalidated broad diagnostic method claims under 35 U.S.C. § 101, holding that the claims were directed to unpatentable abstract ideas, natural laws, or natural phenomena. In light of these decisions, the continued...
Most state and federal employment discrimination statutes prohibit employers from making certain decisions “because of” an employee’s protected characteristics or activities. Courts interpreting this language have developed a number of frameworks and standards to assess whether a plaintiff has demonstrated the causation required to make out a claim of employment discrimination. Two standards frequently invoked by courts are but-for causation...
The Supreme Court’s qualified immunity jurisprudence provides little guidance on a central component of the doctrine: the proper sources of “clearly established law.” As a result, lower courts often resort to a restrictive definition of clearly established law, requiring a controlling precedent in the jurisdiction where the violation took place. This formalist approach unmoors qualified immunity from its intended purpose: ensuring that...
Foreign patrimony laws nationalize ownership of cultural property found within a nation’s borders and prohibit export or private ownership. They are enforceable in the United States under the McClain doctrine. In defending against McClain-doctrine suits to repatriate stolen cultural property, defendants have begun to assert the “inactivity defense,” which is premised on the theory that enforcing certain patrimony...