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Article
27 December 2024

New York Times v. Sullivan: A Civil Rights Story

Samantha Barbas
The 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.” Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white jury awarded Sullivan $500,000. The purpose of the lawsuit was to attack the civil rights movement directly, and also indirectly, by stifling press coverage of civil rights protest activities. The Times and the civil rights leaders appealed to the U.S. Supreme Court, claiming that Alabama’s strict libel laws, which were similar to most libel laws at the time, violated constitutional guarantees of freedom of speech. Sullivan has been memorialized as a case that was principally about the First Amendment. Even though observers at the time saw it as a “civil rights case,” Sullivan’s connections to the civil rights movement were lost over time. This Article tells the story of New York Times v. Sullivan as both a First Amendment story and as a “civil rights story.” Sullivan grew out of the civil rights movement and transformed the course of that movement. The Supreme Court’s efforts to assist the civil rights movement resulted in a decision that broadly protected the freedom to comment on government and public affairs. Situating Sullivan in its civil rights context not only complements our understanding of the ways that civil rights and freedom of speech have been intertwined in American history, but may also help to strengthen the image of Sullivan when the ruling is under assault. Many of the attacks on Sullivan are premised on Sullivan as a “press case,” one that primarily protects the institutional press. Sullivan is vulnerable in an era when the public’s opinion of the press is generally low. These attacks might be countered if the public were reminded that Sullivan not only protects the press but also individual dissenters and critics, as the history of Sullivan makes clear.
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Article
27 December 2024

Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence

Mark Behrens, Andrew Trask
Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.
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Current Articles

Article6 March 2025

"I Was Young and Dumb": Why Age Should Be Considered in the Military Discharge Upgrade Process

Ashlyn Anderson-Keelin
Approximately 40% of the United States military is no older than 25. Despite the robust and continued prevalence of young people serving in the Army, Navy, Air Force, Marines, Coast Guard, and Space Force, no special consideration is explicitly given to a servicemember’s age when considering upgrades for those discharged under less-than-honorable conditions. These young people volunteer to risk their lives, expecting to be honorably discharged and eligible to receive the benefits promised to them during recruitment and enlistment; however, many instead find themselves with a less-than-honorable discharge, thereby barred from the benefits that motivated them to join in the first place. This Article is the first to explore the relationship between age, brain development, and the military discharge upgrade system. Using a juvenile criminal law lens, the Article looks at what psychologists and neurologists say about brain development in young people, before examining the impact of this research on the criminal law system. It then evaluates why and how this same type of analysis could and should apply in the military context. Ultimately, it shows that age should be factored into the discharge upgrade process as an explicit consideration and offers some proposals on ways to implement this consideration.
Article6 March 2025

Discrimination, Private Liberty, and Public Accommodations Law

Jacob Eisler
In 303 Creative LLC v. Elenis, a fiercely divided Supreme Court opined that commercial vendors enjoy First Amendment protections to decline to serve customers, even where such a choice is prohibited by state public accommodations regimes. In identifying a clash between personal liberty and state instruction, the decision could radically reshape the public accommodations statutory regime, which prevents discrimination against customers from minority and vulnerable groups. Standard constitutional interpretation cannot explain 303 Creative, and existing doctrinal and scholarly frameworks will struggle to integrate the decision into the already convoluted narrative of public accommodation law. This Article is the first to identify the unifying theme of public accommodation law from the post-Reconstruction era to 303 Creative: whether commercial activity is a domain of private liberty that protects against state intrusion or, conversely, a shared social practice that is legitimately shaped by collective political decisions. When the Supreme Court characterizes commercial activity as a domain of private liberty, as it did in 303 Creative, the Court’s enforcement of personal rights curtails the scope and effect of public accommodations legislation. When the Court characterizes such activity as a shared public project, as it did during the Civil Rights era, the Court authorizes the legislature to robustly enforce the public accommodations regime and advance anti-discrimination. The judicial classification of commercial society has wider-reaching consequences for constitutional interpretation. The most controversial decisions of the Roberts Court—such as the deregulation of campaign finance and the limitation of governmental regulatory authority over employers—are grounded in the theory that commercial activity is a domain of private liberty that deserves rights-based protections. This conclusion and the competing view that the government has broad authority to curate commercial and economic affairs both seek moral legitimation from the principle of political autonomy. To effectively advance this principle of autonomy, the Supreme Court should classify commercial activity based on actors’ contextual social power.
Article6 March 2025

Accidental Brady Violations

Adam Gershowitz
Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct. But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is in the hands of police, sheriffs, crime laboratories, and other government agencies. Because the criminal justice “system” is riddled with communication breakdowns, prosecutors are sometimes unaware of Brady evidence that they were obligated to disclose. The breadth of the Brady doctrine and the dysfunction of the criminal justice system do not make Brady violations acceptable or harmless. To the contrary, Brady errors are serious violations of a defendant’s constitutional rights. To reduce future violations, however, we cannot simply condemn prosecutors for intentional misconduct. Instead, it is important to understand why accidental Brady violations occur. Drawing on nearly two-dozen recent cases, this article builds a typology of situations where accidental Brady violations occur, and it sets forth solutions for reducing accidental violations in the future.
Article6 March 2025

Get in the Flow: Policy Changes That Can Increase Texas's Surface Water Transfers

Amy Hardberger
The prior appropriation or “first in time” system of surface water allocation was initially adopted during the California Gold Rush and later implemented throughout the western U.S. to distribute water rights. Those same states are now experiencing massive population increases, often with over-appropriated rivers exacerbated by climate change. Although water is scarcer, it is often not put to its highest value or most efficient use because prior appropriation protects inefficient and wasteful uses. Because water rights are property rights, one way to move water to new users is through water market transfers; unfortunately, prior appropriation rules create high transaction costs, which inhibit markets. Although senior users are protected in times of shortage, when a water right is being transferred, the transferor must demonstrate that the change will not injure existing users or the public interest. Vesting veto rights in third parties leads to an underutilization of the resource. Use it or lose it provisions also create unintended consequences by encouraging inefficient applications. Policy changes could accelerate markets while maintaining state priorities related to type of use, water efficiency, and managing shortage. Although many economists have advocated for market solutions, their arguments often do not respect property law. Using Texas as an example, this Article evaluates various economic proposals for water markets through a property rights lens and proposes policy changes that encourage markets while protecting vested rights. Solutions include exempting conserved water from nonuse provisions, creating marketplaces, and opportunities to fast-track transfers that protect the public trust and ecosystems.
Article6 March 2025

Keep the Home Fires Burning: The Enduring Embers of Pennsylvania Fire

Jack Harrison
Prior to the Supreme Court’s decision in Ford Motor Co. in 2021, what characterized the Court’s personal jurisdiction jurisprudence was a desire to restrict access to the courts for plaintiffs seeking redress for injuries and to protect large corporate defendants by limiting the available jurisdictions in which they could be sued. For example, in Daimler, the Court rejected the traditional understanding of general jurisdiction based on a defendant corporation’s activities within the forum state and, in so doing, turned years of lower court decisions developing the understanding of general jurisdiction on its head. However, more recently, the Court has begun to realize how its overly restrictive approach to personal jurisdiction has unnecessarily prejudiced individual plaintiffs and benefited corporate defendants. In Ford, for example, the Court indicated that a finding that a court had specific personal jurisdiction over a corporate defendant did not require a causal relationship between the defendant’s contact with the forum and the injury giving rise to the cause of action. Rather, the Court noted that the analysis for specific jurisdiction had always required either that the cause of action arise out of the defendant’s contacts with the forum or that the cause of action be closely related to the cause of action. In Ford, the Court, for the first time, put some meat on the bones of the “closely related” prong of specific jurisdiction analysis, thus expanding the reasons under which a court might find it has personal jurisdiction over an out-of-state corporate defendant. More recently, in Mallory, the Supreme Court revisited the issue of whether compliance with state corporate registration statutes may connote consent on the part of a corporation to the exercise of personal jurisdiction. This was the first time since its 1917 decision in Pennsylvania Fire that the Court addressed the issue. The decision in Mallory warrants a renewed look at the question of consent to personal jurisdiction by corporate registration. In Mallory, the Court also further addressed the problems raised by its restrictive approach to personal jurisdiction. This Article traces the historical development of the Court’s personal jurisdiction jurisprudence, from the territorial limitations of Pennoyer v. Neff rooted in understanding the Due Process Clause of the Fourteenth Amendment to the abandonment of this overly restrictive approach and the establishment of the modern development of the personal jurisdiction doctrine in International Shoe Co. v. Washington. This Article then reviews the concept of registration-based consent to personal jurisdiction from Pennsylvania Fire to the recent decision in Mallory, which found that this application of consent was not a due process violation. In conclusion, the Article examines the preconditions for the imposition of registration-based consent to personal jurisdiction and the limitations imposed by the Dormant Commerce Clause on the reach of registration-based consent to personal jurisdiction.
Article6 March 2025

No News (Read: Successful Lawsuits Against Mediators) Is Good News?

Michael Moffitt
Mediators are busy doing important work—and mediators are human and sometimes make mistakes. Without losing sight of the important work mediators do every day within our justice system, this Article offers three observations about the fact that mediators are fallible. It concludes with some normative considerations about how we might think about each of the three observations. First, I summarize research spanning more than two decades of litigation involving mediators. I provide a new taxonomy, derived from actual lawsuits, describing the bases upon which former disputants have complained about their mediators. I suggest that there are examples of at least five different flavors of alleged mediator malpractice, and for each I provide at least one concrete example of a lawsuit filed in recent decades. Second, I demonstrate that although enough claims have been filed to permit the creation of a taxonomy of complaints, such claims remain vanishingly rare. Although millions of disputants have gone through mediations in the last two decades, exhaustive multi-method research has yielded records of fewer than one hundred lawsuits against mediators. And even in those cases that are filed, virtually none of them result in any finding of liability against the mediator. Third, I suggest that six aspects of the current legal landscape serve to provide virtual de facto immunity for mediators. Four of these features are functions of the way the law treats all contract and tort law claims. Two other features of the legal landscape (confidentiality shields and immunity doctrines), however, are unique to mediation. I conclude with a normative observation about mediators’ continued de facto immunity from successful malpractice complaints. I argue that consumers of mediation services, particularly the disputants themselves, ought to have confidence (1) that if they believe they were injured by a mediator, they will have a chance to make their case, and (2) that in the event they are successful with their claim, they will have an opportunity to be made whole. To the extent a trend is discernable with respect to the legal landscape for mediation, the trend is toward even greater protections against claims of mediator malpractice. Mediators may enjoy the status quo and the current trajectory—for now—but I am not convinced that this trend benefits our field or the disputants we serve in the long-term.
Article6 March 2025

The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing

Michael O'Hear
The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined in the lower courts. This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals. The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines. Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian. The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right.
Article6 March 2025

The Common Threats of Artificial Intelligence and Privatization

Landyn Rookard
Administrative agencies’ growing use of automated decisionmaking tools poses threats to core democratic values, such as agency flexibility, expertise, fairness, transparency, and accountability. But decades of privatization have wrought similar, lasting harms to the United States’ public institutions. This Article argues that the thoughtful criticisms and prescriptions from the burgeoning literature on the government’s use of artificial intelligence should be used to strengthen the scrutiny accorded to privatization. Specifically, this Article challenges the perception that automated decisionmaking poses a greater threat to public values than privatization. Indeed, the two share several characteristics and goals. These include, for example, a fixation on efficiency, reliance on oversimplified cost-benefit analyses, erosion of agency expertise and resources, and separation between public officials and their decisions’ impact on individuals. In that separation, algorithms and private actors make important decisions often carrying political and fairness consequences. As policymakers adapt the latest expert guidance regarding algorithms to the problems of privatization, they should prioritize the needs and voices of the marginalized individuals who have been most harmed by the privatization movement.

Most Popular Articles

Comment
1 January 2015

A Religious Right to Discriminate: Hobby Lobby and “Religious Freedom” as a Threat to the LGBT Community

Travis Gasper
The Supreme Court in its 2014 decision in Burwell v. Hobby Lobby broadly expanded so-called religious freedom protections in the Religious Freedom Restoration Act (“RFRA”) by striking down a provision of the Affordable Care Act requiring employers to provide health insurance coverage for certain methods of contraception. In doing so, the Court opened the floodgates for employers to claim an exemption based upon any “sincerely held” religious belief. Without inquiry into the sincerity of that belief, businesses and corporations are free to adopt or assert beliefs that could lead to increased discrimination against employees. This is especially troublesome for marginalized groups like the LGBT community, which is already on the receiving end of discrimination under the pretext of religious exemptions. To correct any future misuse of these exemptions, Congress should amend RFRA to permit courts to assess the belief being asserted and contrast it with the potential harm if an exemption is allowed. The purpose of RFRA is to ease the burden faced by people of faith forced to go against their religious beliefs if they obey a certain statute. Easing this burden should focus on heady moral dilemmas, not mere inconveniences. Amending RFRA can ensure it maintains its initial purpose of protecting religious freedom, while not being used as a tool to perpetuate discrimination.
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Article
1 January 2016

The Law and Politics of Firearms Regulation in Reconstruction Texas

Mark Frassetto
In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts. More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.
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Arguendo (Online)
10 January 2019

Whose Land Is It Anyway? Navigating Ghana's Complex Land System

Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood
This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.
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Comment
1 March 2019

Bloody Hell: How Insufficient Access to Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women

Lauren Shaw
For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and pro- vides suggestions for possible legislative solutions.
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Comment
30 April 2021

The Growing Monopoly in the Corn Seed Industry: Is It Time for the Government to Interfere?

Bethany K Sumpter
How a company conducts business is often a consumer concern. Individuals have accused company after company of monopolistic behavior. These individuals have also criticized the Department of Justice for not stopping a monopoly from forming in a specific industry. An example is the corn seed industry, where stakeholders have accused companies of monopolistic behavior. Recent mergers and acquisitions in the corn seed industry have left fewer companies in control, and because of this consolidation, individuals are urging the government to act. This Comment argues that, while the corn seed industry is on the road to containing a monopoly, the industry does not yet contain enough characteristics to warrant a government response. However, when a monopoly does form, the government should, and likely will, act.
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