Separation of Church and Law: The Ministerial Exception in Demkovich v. St. Andrew the Apostle Parish

June 1, 2023 by Jonathan Murray
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Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception—a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations’ discretion in how they select their “ministers,” or religious employees dedicated to the organization’s religious mission. However, current law lacks clarity regarding the application of the exception to an organization’s treatment Continue reading →

How to (Not) Do Things With Judicial Opinions: Minding the Performative Power of Facts and Dicta

June 1, 2023 by MB Beasley
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“Three generations of imbeciles are enough.”[1] These words of Justice Oliver Wendell Holmes are some of the most infamous and evocative penned from behind the bench of the Supreme Court of the United States. Beyond the feelings of revulsion reading the opinion causes, the facts that Justice Holmes declared to be true and the dicta he used to bolster the Court’s holding in Buck v. Bell helped to create the social world we live in today and continue to affect it. Though previous scholarship has Continue reading →

The Right to Vote Securely

June 1, 2023 by Sunoo Park
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American elections currently run on outdated and vulnerable technology. Computer science researchers have shown that voting machines and other election equipment used in many jurisdictions are plagued by serious security flaws, or even shipped with basic safeguards disabled. Making matters worse, it is unclear whether current law requires election authorities or companies to fix even the most egregious vulnerabilities in their systems, and whether voters have any recourse if they do not. This Article argues that election law can, does, and should ensure that the Continue reading →

Trademark’s Grip Over Sustainability

June 1, 2023 by Daniel R. Cahoy
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Entrepreneurs and larger firms are waking up to the fact that there is a viable market for recycled, repaired, and even upcycled goods. There is also an increasing desire on the consumer end for more sustainable products as well as measures to reduce landfill and other product disposal harms to the environment. Although some legal barriers to this new market are being actively debated, other barriers have taken a back seat and seem primed to surge only when increased business activity exposes the liability. This Continue reading →

Self-Intervention

June 1, 2023 by Lumen N. Mulligan
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You cannot intervene in your own case, duh! Yet the U.S. Supreme Court disagreed, holding that Federal Rule of Civil Procedure 24(a)(2) allows state legislative leaders, seeking to represent the state’s sovereign interest, to intervene when the attorney general is already representing the state’s sovereign interest. In this Article, I contend that the text, history, and practice of Rule 24(a)(2) prohibit such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the Continue reading →

Producing Procedural Inequality Through the Empirical Turn

June 1, 2023 by Danya Shocair Reda
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Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one’s legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these Continue reading →

The Bankruptcy of Purdue Pharma in the Wake of Big Tobacco

April 16, 2023 by Jacob Hedgpeth
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Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money Continue reading →

Biden, Bennet, and Bipartisan Federal Judicial Selection

April 16, 2023 by Carl Tobias
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Introduction The U.S. Constitution plainly assigns to the Senate the profound duties of rendering critical advice and consent related to all specific federal judicial nominees whom the President selects.[1] The dynamic roles of senators who directly represent jurisdictions where vacant posts materialize have perennially been crucial to appropriately discharging these essential responsibilities. Senators identify excellent candidates—individuals who possess diversity in terms of ethnicity, gender, sexual orientation, independence, experience, and ideology, as well as the character and measured judicial temperament to be exceptional jurists—assemble complete applications, Continue reading →

Boulder is for People: Zoning Reform and the Fight for Affordable Housing

April 12, 2023 by Emma Sargent
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The city of Boulder and the Colorado state legislature are both examining potential housing policies to address the growing housing affordability crisis, which reflect similar discussions in other cities and states. Zoning reform must be a central aspect of these housing policy reforms because of its impact on affordability, environmental sustainability, racial desegregation, and the economic stability of cities and states. However, passing zoning reform measures is complicated by local political opposition and the potential for unintended consequences. The best approach to pass zoning reform Continue reading →

Climate Change and Modern State Common Law Nuisance and Trespass Tort Claims

April 12, 2023 by Jack Wold-McGimsey
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This Comment examines the use of state common law tort claims to address climate change. The aim of this work is not to provide an in-depth examination of these issues, but rather to provide a contextualized and comprehensive overview of some of the most important issues in this field using modern cases actively being litigated. This Comment comes to the conclusion that the future of common law nuisance and trespass claims in the context of climate change is, for now, unclear. Given the national and Continue reading →