Employers seeking to test job applicants for strength or speed while adhering to the mandates of Title VII often use gender-normed physical-ability tests. Gender-normed tests set different raw cutoffs for male and female applicants such that each class would be expected to have roughly equal pass rates. This practice has helped employers—especially law enforcement agencies—retain physical hiring standards while mitigating their disparate...
Note
Legislatures often instruct judges to impose harsher punishments on people who have prior criminal convictions—for example, a conviction for a “crime of violence” or for a “crime involving moral turpitude.” But how are judges to determine whether a person has such a conviction? In Mathis v. United States, the Supreme Court clarified that judges can rely on only the legal “elements” of prior convictions, not the factual “means”...
The All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act has applications in a variety of contexts, including law enforcement investigations, the detention of military prisoners, and the management of complex multidistrict litigation. Another important but less studied area is the Act’s use...
In 2011, Congress created a new administrative pathway through which a party can challenge the validity of a granted patent: inter partes review (IPR). Like preexisting reexamination procedures, IPR is a mechanism through which a private party may ask the U.S. Patent and Trademark Office (PTO) to invalidate or narrow patents that fail to meet the standards of patent eligibility, thus returning subject matter to the public domain and protecting...
This Note analyzes the difficulty that courts have in determining whether nonmarital fathers of Native American children are “parents” within the meaning of the Indian Child Welfare Act of 1978 (ICWA). Part I recounts the history leading to the enactment of ICWA and provides an overview of the subsequent interpretation of ICWA by the Supreme Court, state courts, and the Bureau of Indian Affairs (BIA). Part II presents the difficulties that...
Section 3(c) of the Voting Rights Act of 1965 provides a seldom-used path to federal preclearance of changes to state and local voting practices. It allows a federal judge, upon finding that a jurisdiction violated the Fourteenth or Fifteenth Amendment, to require that jurisdiction to submit for preapproval any “voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting.” Originally intended...
The rhetoric surrounding the benefits of local governments has changed: In response to many cities passing progressive local regulations, state and federal legislators have shifted from emphasizing local control to promoting broad state preemption statutes designed to reduce local power. Additionally, as a result of the work of national interest groups, much of this state-level legislation has become increasingly homogenized. Although not an exclusively...
This Note examines the constitutionality of age-based handgun-purchase restrictions in the wake of the Supreme Court’s decision in District of Columbia v. Heller (Heller I). Part I explores Second Amendment jurisprudence since the Founding and provides an overview of current federal and state firearms restrictions. It also reviews current challenges in the courts to federal prohibitions on firearms purchases and possession by classes...
In the past decade, robo-advisors—online platforms providing investment advice driven by algorithms—have emerged as a low-cost alternative to traditional, human investment advisers. This presents a regulatory wrinkle for the Investment Advisers Act, the primary federal statute governing investment advice. Enacted in 1940, the Advisers Act was devised with human behavior in mind. Regulators now must determine how an automated...
Almost every state has experimented with charter schools to improve education outcomes for high-needs students. Charter schools operate with more autonomy and flexibility than traditional public schools, but at the expense of democratic accountability mechanisms. While this model has produced positive results, some charter schools deny access to or underenroll students with disabilities. The Individuals with Disabilities Education Act entitles...