Vol. 122

This Piece argues that Americans need to shed their anti-partyism and take a second look at parties: Political parties are the only civic associations with the capacity to organize at a scale that matters and the only intermediaries that both communicate with voters and govern. The Piece, however, advances a fundamentally different orientation to party reform—one that pushes beyond a view of parties as vehicles for funding elections, policy-demanders,...

SEX ASSIGNED AT BIRTH

Jessica A. Clarke*

Transgender rights discussions often turn on the distinction between “gender identity” and “sex assigned at birth.” Gender identity is a person’s own internal sense of whether they are a man, a woman, or nonbinary. “Sex assigned at birth” means the male or female designation that doctors ascribe to infants based on genitalia and is marked on their birth records. Sex assigned at birth is intended to displace the concept of “biological...

Various forces are driving healthcare providers to pursue integration to reduce prices and improve efficiency. Right now, the dominant payment model for healthcare is fee-for-service, in which a patient is charged for each individual service, test, or visit. An alternative model is value-based care, in which the emphasis is on value as opposed to volume. But to provide value-based care, health systems generally must be integrated enough to connect...

The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dual-sovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied....

GREENWASHING AND THE FIRST AMENDMENT

Amanda Shanor & Sarah E. Light*

Recent explosive growth in environmental and climate-related marketing claims by business firms has raised concerns about the truthfulness of these claims. Critics argue (or at least question whether) such claims constitute greenwashing, which refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact of a product, a service, or the entity itself. The extent to which...

In December 2019, the world was introduced to COVID-19—a severe acute respiratory disease that would ultimately wreak havoc in communities across the globe. In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death. Estimates suggest that roughly 620,000 people contracted the disease while incarcerated, resulting in nearly 3,000 deaths. The actual toll is likely much greater. As the...

The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how...

The age of digital distribution exacerbates transaction costs in two distinct ways. First, the dissemination of large quantities of works requires permissions from myriad copyright holders. Second, new technologies lower the cost of content creation, resulting in millions of individual creators, rather than a discrete set of large industry repeat players. The potential of class actions to address this rising transaction cost problem has gone largely...

The widespread use of body-worn cameras (BWCs) by law enforcement agencies calls into question how those departments store and publicly release the large amounts of video footage they amass under public access laws. This Note identifies a changing landscape of public access law, with a close look at the federal Freedom of Information Act (FOIA) and its state analogues, as the result of the Capitol Insurrection and the national Movement for Black...

American Samoa is the only U.S. jurisdiction that does not recognize gender-neutral marriage despite the Supreme Court’s Obergefell decision invalidating laws that limit marriage to male–female couples. Among U.S. territories, American Samoa has five unique features: It is the only territory that the United States acquired through negotiation with ruling sovereigns, whose land is largely communally owned, whose residents lack birthright...