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This Article addresses a circuit split in the disability law jurisprudence. Under the Americans with Disabilities Act (ADA), employees generally bring two types of claims against their employers—discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving that the employee suffered an adverse employment action. Succeeding on a failure-to-accommodate claim does not. But several courts—including a recent case in the Tenth Circuit—have added this adverse- employment-action requirement into failure-to-accommodate claims. In doing so, these courts have camouflaged important issues about an employer’s obligation to provide a reasonable accommodation to disabled employees. Although I believe that courts that require an adverse employment action in failure-to-accommodates claim do so in error, the main contribution of this Article is to reveal how courts have obscured and confused broader disability-accommodation issues by imposing that requirement.

In April of 2019, the New York City Council passed groundbreaking legislation capping the amount of greenhouse gases that large building owners can emit, or cause to be emitted, before heavy fines are imposed. The new law, known as Local Law 97 of 2019 (“Local Law 97”), holds great promise for reducing building energy use, which accounts for roughly forty percent of emissions across the globe and over two-thirds of emissions in New York City. However, it will also impose substantial costs on the local real estate industry. With an eye towards minimizing these costs, Local Law 97 calls on the City to conduct a study exploring the potential creation of an emissions trading program for regulated buildings. Trading programs have been successfully used for years in industrial sectors to reduce the administrative cost of emissions control, yet how to translate the lessons learned from industrial trading programs to buildings is still very much an open question. In this essay, I highlight some key points of distinction between the emissions trading program that New York City is contemplating and prior programs that policymakers will need to bear in mind as they develop a trading scheme for this novel context. As the federal government retreats from its efforts to tackle climate change, and the burden of doing so falls increasingly upon local leaders’ shoulders, the question of how to tailor emissions trading programs to the local landscape will doubtless be relevant for cities beyond New York. Because emissions trading programs, like other types of market-based environmental policies, are designed to lower the cost of achieving environmental goals, cities that successfully implement emissions trading programs may be able to tackle climate concerns more effectively.

Racial gerrymandering is a doctrine that has had a surprising evolution. It began in controversy in the 1990s with legal challenges brought by white voters to the creation of majority-minority districts. By injecting a deeply skeptical, color-blind requirement into the redistricting process, the Supreme Court’s racial gerrymandering jurisprudence looked for much of the 1990s like a serious, and perhaps even fatal, threat to the ability to draw majority-minority districts under the Voting Rights Act. But those fears ultimately were misplaced.

This Article argues instead that the doctrine, while suffering from some jurisprudential and analytical complexities, has proven nonetheless to be a remarkably flexible tool for courts to address the intersection of race and politics. This decade, racial gerrymandering has evolved to be both a potent tool to block the packing of African American voters and a means to police at least some forms of partisan gerrymandering.

As the nation has seen multiple times in recent years, federal government shutdowns are harmful to the American public, but are disastrous for federal employees. In the most recent shutdown, nearly a million people missed two paychecks, many of whom were nonetheless required to show up to work and thus forego earning a supplemental wage elsewhere. This was not just. Some lawmakers have tried to rectify this by proposing bills that would create a framework for protections based on the Servicemembers Civil Relief Act, which enshrines particular safeguards against litigation and administrative matters for those serving in uniform. This Article discusses those protections and their applicability to unpaid federal employees as well as other protections—some proposed, some not. The Article then reviews the constitutionality of the potential provisions. Finally, the Article addresses the political ramifications of such a law’s passage, namely if increased protections would beget more shutdowns.

Legal hackathons are exploding in popularity. “Hacking” is a term often associated with illegal behavior, but a hackathon is something different. At a hackathon, lawyers, technologists, data scientists, public interest organizations, law students, and just about anyone who is interested converge in a friendly, time-pressured competition aimed at solving some defined problem. For more than a decade, different industries have looked to hackathons as a source of new ideas. Today, the legal industry uses hackathons to spark creation of innovative tools to chip away at the access to justice crisis and improve the delivery of legal services.

But often lost in the excitement is a key piece to hackathon success: treatment of the intellectual property. For example, who owns the copyright in software created at a hackathon? What about a new business method? What about the rights to trademark a new design? Most hackathons have some form of a participant agreement, but many outright ignore the “who owns it” question or fail to address it in a purposeful manner.This is a problem in need of a solution—or at least some concrete guidance.

This Article explores intellectual property rights in the context of legal hackathons. How intellectual property is approached at the start can impact the success (or not) of creations at the end. Taking rights away from participants risks alienating them and interfering with the collaborative and fun spirit most hackathons embody. Yet giving participants all the marbles may not be preferable either, especially if it disincentivizes organizers to support future development and help a tool survive beyond the hackathondoors. In circumstances where one size doesn’t fit all, this Article discusses pros and cons of varying approaches to intellectual property in hackathon participant agreements. Embodying the hackathon resolve to create something tangible and useful for others, the Article connects readers to an online repository of sample agreements as well as a participant agreement template.

The canon of constitutional avoidance is jurisprudentially important but poorly constructed. The Supreme Court frequently uses the canon in significant cases to justify second-best interpretations of statutes that avoid serious constitutional questions. Nevertheless, the trigger for the application of the avoidance canon, textual “ambiguity,” has not been coherently developed by the Court and differs in important ways from ambiguity as linguists typically view it. In addition, the Court, in focusing on “ambiguity” as a precondition for the application of the avoidance canon, fails to recognize the different ways in which a statute might be indeterminate. Recently, the Court reaffirmed its conception of the avoidance canon in a case, Jennings v. Rodriguez, involving prolonged immigration detention. In Rodriguez, the Court focused on ambiguity to the exclusion of other types of linguistic indeterminacy and continued to defend an unduly narrow conception of ambiguity that rejects implicit limitations on the scopes of statutes. This Article argues that the Rodriguez case highlights the need for the Court to reassess the avoidance canon. By doing so, the Court can give the avoidance canon a more defensible foundation that is consistent with the ways in which language operates.