No. 6

With a persistent and, in some places, increasing education achievement gap falling along lines of race and class, advocates have often turned to the courts to improve this nation’s public schools. Public law litigation has historically helped to remove some of the most invidious barriers to improvement, but traditional desegregation and school-finance lawsuits have not gone far enough to close the gap. This Note thus seeks to propose a new approach...

Free Exercise Lochnerism

Elizabeth Sepper*

In this Article, I identify and critique a phenomenon I call Free Exercise Lochnerism. In promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York—a case symbolic of the courts’ widely criticized use of freedom of contract to strike down economic regulation at the turn of the last century. Today, in their interpretations of the First Amendment...

Identity as Proxy

Lauren Sudeall Lucas*

As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.

Equal protection’s current use of identity as proxy leads to a number of problems, including...

In 2011, Congress passed the Leahy-Smith America Invents Act, a broad-sweeping reform of the American patent system. Within this landmark piece of legislation, Congress created trial-like administrative proceedings as a cost-effective alternative to litigation. Inter partes review allows third parties to go before the Patent and Trademark Office and attempt to invalidate an already issued patent on the limited grounds that it fails to meet either...