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The legibility of handwriting is on the decline. Thankfully, calligraphy carries low stakes in a digital age. Why write something down when it can be typed instead? Yet, there is still one near-universal fragment of writing that must often be done by hand: the signature. While usually a formality, so long as signatures are done by hand, they can be second-guessed, threatening a generation untrained in cursive. This Essay highlights a recent incident in which a union representation election hinged on the legibility of one employee’s signature.
Is it OK for courts to think about race when they decide whether to bar certain arguments from being made, because they think those arguments could rely on stereotypes or otherwise play on the jury’s racial biases? For the Washington Supreme Court, the answer is yes—in fact, courts have a duty to consider race in making these evidentiary decisions. Rather than statements or arguments that are made with a clearly racist intent, the Washington Supreme Court’s idea of “racially biased arguments” is far more capacious: it includes “dog whistles,” or superficially harmless comments that have the effect of operating on a jury’s implicit biases.
Applying the “state-created danger” doctrine, circuit courts have generally held that a state actor who creates a risk of injury for a private party faces liability if injury occurs. But in Fisher v. Moore, the Fifth Circuit declined to apply the doctrine where public school teachers failed to protect a disabled student. Why would the Fifth Circuit diverge so sharply from nearly every other circuit to consider the matter? In large part, the answer relates to the Supreme Court’s stance on substantive due process rights in its decision in Dobbs v. Jackson Women’s Health Organization.
In Kennedy v. Bremerton School District, the Supreme Court held that Coach Kennedy’s choice to kneel and pray on the field after games did not violate the Establishment Clause of the First Amendment. Justice Neil Gorsuch’s majority opinion gave the reader a glimpse of four different interpretive pathways for the Establishment Clause without precisely identifying the historical precedent that got Coach Kennedy off the hook. Through a close reading of the Kennedy opinion, this Note attempts to understand why exactly Coach Kennedy’s actions passed Establishment Clause muster under the Court’s new test.
In National Pork Producers Council v. Ross, the Supreme Court upheld California’s Proposition 12, which forbids the sale of pork from pigs that were “confined in a cruel manner.” Given that California imports most of the pork consumed within the state, the plaintiffs contended that the law violated the dormant Commerce Clause. While the bulk of Justice Gorsuch’s opinion fleshed out the dormant Commerce Clause doctrine, it made passing reference to a considerably more obscure constitutional provision: the Import-Export Clause.
The California Age-Appropriate Design Code Act (CAADCA) regulates the collection, storage, and processing of personal data of individuals under 18 and requires covered websites to estimate the age of users and create notices that they may be tracked. NetChoice argues that the law—ostensibly aimed at protecting children and their data online—will hobble free speech on the internet. This Case Note examines the stakes of this litigation, explores the constitutional viability of the CAADCA, and argues for legislative amendments that could allow the law (or others in the same vein) to better weather future legal challenges.
In 2022, San Jose became the first U.S. jurisdiction to require gun owners to carry liability insurance. Such mandates have been subject to Second Amendment challenges, which have been affected by the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen. This Essay examines how district courts have applied the Bruen test to liability insurance mandates and, using this case study, discusses how Bruen inhibits governments from creating novel solutions—such as insurance regimes—to reduce gun violence.
Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.
Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.
In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law.
Professor Jonathan Choi’s Measuring Clarity in Legal Text adds to a growing literature in empirical legal interpretation, which uses corpus linguistics and survey-experiments to inform legal interpretation. Measuring Clarity offers two intriguing theses, one positive and one critical. On the “positive” reading, the article defends its word embedding approach as a useful method of first-order legal interpretation. On a “critical” reading, the article employs word embeddings as a new tool to assess textualism’s fundamental linguistic assumptions, concluding that there is a fundamental problem with textualism, or at least its current practice.
To understand criminal justice, education, and family law, we lawyers typically look to social scientists, and their external expertise does teach us much. But we often neglect lived experience. Occasionally, we should toggle from the dry regressions and clinical detachment of social science to the internal perspective and expertise of those who live through family breakup, foster care, disrupted schooling, drugs, and crime. And that is what Rob Henderson’s breakout memoir, Troubled, gives us: a window on troubled youth.