Notes

In the past ten years, jurisdictions across the United States have witnessed an explosion of fossil-fuel-industry-backed laws targeting anti-pipeline and anti-critical infrastructure protestors. In passing these laws, state legislators throughout the country have sought to criminally punish activists who dissent against the construction of infrastructure sites atop their homes and in their neighborhoods. These activists resist a trend in which local governments designate their communities as “sacrifice zones.” In these areas, local governments allow companies to build polluting industries and facilities that subject residents to severe health and safety risks. Because these infrastructure sites disproportionately displace and harm communities of color, some have deemed this practice “the new Jim Crow” and have argued that it functions as a relic of slavery. In cracking down on these communities’ opposition to the creation of sacrifice zones, state legislatures and the oil and gas industry silence Black- and Indigenous-led racial justice movements across the country.

Using dissent in sacrifice zones as an example, this Note argues that modern suppression of racial justice advocacy hearkens back to a long tradition of silencing movements that promote racial equality. This repressive practice traces its roots back to pre-abolition times. As this Note explicates, the Framers of the Thirteenth Amendment (which formally abolished slavery) sought to curtail such speech- silencing efforts. Thus, suppression of racial justice advocacy—and specifically, suppression of anti-sacrifice zone advocacy—should be considered a “badge and incident of slavery” violative of the Thirteenth Amendment.

This Note offers two Thirteenth Amendment avenues for challenging what this Note calls “sacrifice zone speech suppression,” a subset of anti-protest speech suppression aimed at silencing dissent in sacrifice zones specifically. First and foremost, this Note proposes a litigation pathway, and second, it proposes a legislative pathway. In proposing these solutions, this Note shares the hope of the many activists who have spent years, decades, and centuries fighting for an end to the legacies of slavery: the conviction that, in the words of Bill Quigley, “justice is possible.”

State constitutions promise what the federal Constitution does not: affirmative guarantees of democratic participation, among a broad array of positive rights. But state courts tasked with enforcing those rights routinely fail to properly engage with their constitutions, defaulting instead to the federal judiciary’s clause-isolation and tiered scrutiny. The result is a methodological mismatch that allows state legislatures, many of them elected by a plurality or minority of their state’s voters, to erode democratic rights unchecked. This Note argues that the Michigan Supreme Court charted an independent path in Mothering Justice v. Attorney General, where it struck down an unaccountable legislature’s gutting of two voter-initiated laws by reasoning holistically about Michigan’s constitutional commitment to democracy. Drawing on the work of Professors Bulman-Pozen and Seifter—who identified the democracy principle as a synthesis of state constitutional commitments to popular sovereignty, majority rule, and political equality; proposed democratic proportionality review, which asks whether the burdens a law places on democratic participation are proportionate to and justified by the government’s legitimate objective, as an alternative to federal methods; and coined the term “methodological lockstepping” to describe the problem—this Note uses Mothering Justice as a prototype of the judicial application of a new framework.

Upon the foundation that Mothering Justice laid, this Note constructs a three-part doctrinal test: (1) assess the strength of the state constitution’s commitment to the democracy principle; (2) balance the burden on a democratic right against the legislature’s justification for imposing it; and (3) craft a “remedy-plus” that resolves the immediate dispute while establishing prospective safeguards against recurrence. Applied to voter identification laws and partisan gerrymandering, the test reveals at once its range and its aim: to equip state courts with a structured, state-grounded framework for curbing legislatures that have themselves sought to limit the sovereignty and power of the very people who elect them and whose rights their constitutions enshrine.

“It is also that, in the constitution of that Other of Europe, great care was taken to obliterate the textual ingredients with which such a subject could cathect, could occupy (invest?) its itinerary—not only by ideological and scientific production, but also by the institution of the law.”

Legal history transforms stories into state-backed power. Courts, acting as historical exegete, foreclose possible historical worlds to create law. However, in recent years, the kind of “history and tradition” courts and originalists have been prepared to grace with legal meaning has become myopic. This is so not just because of the limited range of historical subjects on which courts have focused their attention, but also because of the normative questions originalist methodology eschews and the teleology it obscures. However, originalism need not have the final word on legal history.

This Note will argue that one way to move beyond originalism and toward liberatory legal meaning is to embrace a postcolonial approach to American legal history—a postcolonial legal historiography. Certainly, this approach, like postcolonial theory more broadly, seeks to understand the world in relationship to the history of imperialism and colonial rule. But that understanding requires more than just a critique of what history is told. A postcolonial legal historiography requires a radical shift in methods—especially relative to how originalism engages in legal historiography. To illustrate how different a postcolonial historiographical inquiry could be, this Note will discuss the debates engendered by the Subaltern Studies Group, a group of postcolonial historians who raised issues of representation in traditional historiographies of India. While those debates occurred decades ago and are just one facet of postcolonial approaches to telling history, I argue that looking at them afresh might allow advocates to chart a way out of originalism.

This Note will proceed in four parts. Part I will briefly summarize originalism’s methodology and justification before moving into an overview of two of its critiques, with an eye toward underscoring what might already be obvious: Originalism prevents liberatory approaches to legal history from emerging. Part II will introduce postcolonial approaches to historiography, focusing on the discourse around the Subaltern Studies Group and, in particular, the tensions between two giants of postcolonial studies: Ranajit Guha and Gayatri Spivak. Guha’s and Spivak’s respective contributions and disagreements offer alternative answers for how and why we engage in historical inquiry. Part III will then compare and contrast postcolonial historiography with originalism and argue that postcolonial historiography has a stronger answer to the questions of how and why we do legal history in the first place, particularly for those interested in liberatory legal meaning. Part IV will conclude by briefly examining how a postcolonial approach to American legal history might create alternative and liberatory legal meanings—especially as questions of colonialism and conquest begin to take a more prominent role in domestic American legal scholarship.

Nearly sixty years after the passage of the Fair Housing Act (FHA), racial segregation, housing discrimination, and consequent disparities in health and opportunity stubbornly persist. Yet the Department of Housing and Urban Development has made limited use of the FHA’s most powerful provision: its mandate to affirmatively further fair housing. In recent years, new barriers to meeting this mandate emerged. Still, affirmatively furthering fair housing remains constitutionally viable and urgently necessary, even in the face of shifting equal protection doctrine. This Note begins by tracing the contested meaning of “affirmatively furthering fair housing” in the courts and executive branch. It then examines how Students for Fair Admissions v. Harvard creates new constitutional roadblocks to governments seeking to affirmatively further fair housing today. In response, this Note proposes a process for crafting race-conscious policy within the many constraints of current equal protection jurisprudence. Finally, it outlines an application of this process to affirmatively furthering fair housing. By doing so, this Note reaffirms the continued need for affirmatively furthering fair housing, the continued possibility of this work in the face of constitutional changes, and specific avenues forward for state and federal actors dedicated to building “truly integrated and balanced living patterns.”

Flawed software costs businesses and consumers millions of dollars every year, but existing tort law does not generally require developers to compensate others for economic injuries caused by bad code. Discontented scholars and policy analysts have produced an array of proposals that would force developers to pay for harms flowing from vulnerabilities that hackers exploit to injure software users. This basic model—which would impose a duty on developers to eliminate security-related vulnerabilities but not other types of software flaws—dominates legislative and academic debates about reform. This Note argues that this focus is misconceived. It is technically ambiguous, doctrinally anomalous, and would throw national security and consumer welfare goals into conflict. Liability proponents have focused on it because they recognize that imposing new duties on software developers must realistically be limited in some way. Although the vulnerability-based limitation is ultimately misguided, this Note proposes that a party-based limitation restricting recovery to parties in near-privity is more defensible. Focusing on party-based limitations on duty instead of a vulnerability-based limitation would require thinking of software development not as a product, but rather as a professional practice subject to malpractice-like standards. This reframing, I argue, better aligns proposals for expanding software developers’ duties with existing tort doctrine while focusing a liability evaluation on the most important aspects of the software development process.

In January 2024, the United States made landmark regulatory updates under the Native American Graves Protection and Repatriation Act (NAGPRA) amidst intensifying scrutiny on human remains stewardship and calls for repatriation. Museums across the United States and United Kingdom currently hold hundreds of thousands of human remains in their collections, many of which were acquired through colonial exploitation, thefts of cultural heritage, grave robbing, and other unethical acquisitions from marginalized communities. The dark history of these collections and their perpetuation of harm to marginalized communities necessitates improved mechanisms for human remains repatriation.

This Note examines the current state of museum human remains policies and makes the case for improved regulations and social sanctions. Museums across the United States and United Kingdom implement a wide range of policies for human remains stewardship, and the analysis of four key case studies—the American Museum of Natural History, the Denver Museum of Nature and Science, the British Museum, and the Manchester Museum—demonstrates the need for interventions to facilitate the return of human remains. Specifically, the learnings from these case studies highlight the need for public pressure and improved regulations that carry concrete mandates, are enforced, and address key regulatory gaps.

Unpaid internships in the federal government operate under a statutory and regulatory regime unlike any other in American employment law. The Fair Labor Standards Act (FLSA) constrains internships that are hosted by nonfederal entities. The FLSA applies to the United States as an employer, but in practice, it has proven almost entirely irrelevant to federal unpaid internships, which instead owe their form to the interaction of appropriations law, the Antideficiency Act’s voluntary service prohibition, and 5 U.S.C. § 3111, which authorizes “student volunteer” service at federal agencies under strict, enumerated conditions.

This Note—the first comprehensive doctrinal and statutory account of federal unpaid internships—argues that the federal government’s legal authority to host unpaid interns is both narrower and more rigid than commonly understood. The Note first contextualizes federal “student volunteer” programs within the broader economy of unpaid internships, tracing the evolution of these programs and identifying how education-based exceptions have redefined the permissible boundaries of intern labor. It then turns to the federal sector, where legal authority to accept voluntary service depends on a statutory scheme that expressly bars compensation and classifies interns as non-employees for nearly all legal purposes. The Note synthesizes this landscape into a clear legal test for when unpaid internships in federal agencies are lawful.

Yet even lawful unpaid internships present profound problems. This Note identifies structural inequities, legal accountability gaps, and governance blind spots that arise when federal agencies rely on unpaid student labor. Because these issues are entrenched in federal statute, they are impervious to litigation or state-based reform. Accordingly, this Note concludes with legislative solutions to fix a Congressionally created quagmire that only Congress can properly fix.

Certain provisions within environmental statutes, known as emergency action provisions, provide EPA administrators with the authority to take legal action when certain forms of pollution threaten public health. Of the six most prevalent environmental statutes with emergency action provisions, five have unique requirements for coordination with state and local authorities. These coordination requirements fit within a broader spectrum in environmental law of cooperative federalism, the concept of dividing responsibilities between central and regional authorities.

Drawing from case law, legislative history, canons of interpretation, and academic commentary, this Note highlights the inconsistent coordination requirements of the emergency action provisions—leading to confusion and delay for enforcement authorities—and shows there is scant normative justification for those differences. This Note also assesses what levels of coordination between federal and regional authorities are practically beneficial for agency attorneys and public health outcomes. Ultimately, this Note recommends standardization of the emergency action provisions, through legislative, judicial, and/or executive action, to capitalize on the benefits and mitigate the challenges of cooperative federalism.

Tens of thousands of people are involuntarily confined in a hospital each year in connection with their mental illness or disability. In response to misconduct by people who are civilly committed, hospitals often call the police, setting in motion a chain of events with devastating consequences for the person who is transferred to criminal custody. Despite the frequency with which it occurs, little research has explored this phenomenon. This Note aims to shed light on the practice and expose its tension with constitutional norms, using the Court’s decisions in City of Grants Pass v. Johnson and Robinson v. California as points of departure.

The First Amendment is a well-known bulwark against a government that might use its regulatory powers to silence speech based on the viewpoint of the speaker. The government speech doctrine extended those protections to the government itself, allowing the government to adopt its own viewpoint when it speaks on its own behalf. The result of the Court’s decision to extend First Amendment protections to the government is that the government can use the First Amendment as a shield when it uses viewpoint discriminatory regulation to coerce speakers into silence. The theorists and judges who created the government speech doctrine have argued that the democratic process and the other provisions of the Constitution would be strong enough to stop the government from abusing its speech powers. This Note, however, identifies a gaping hole in their doctrinal framework where low-visibility government speech meets the ambiguity of the coercion-persuasion line. At that critical point, neither the First Amendment, nor the other provisions of the Constitution, nor the democratic process can stop the leviathan’s inclination to silence dissent.