Comment

When partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-person, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause. Remediating intrastate redistricting stalemates is trickier for federal courts than remediating other Equal Protection one-person, one-vote cases. In crafting or selecting remedial maps, the U.S. Supreme Court has instructed federal courts that they must defer to states’ policies and plans. To inadequately do so is reversible error. But when is a state policy or plan owed deference? The answer is clear in cases where a state has recently redistricted but a federal court has struck down the state’s new maps for failure to meet federal constitutional or statutory requirements: the state’s policies as expressed in its recently enacted, post-census reapportionment plan are owed deference to the extent they do not violate federal requirements. But when a state fails to redistrict post-census due to an intrastate stalemate, this Comment argues that there is no recently enacted reapportionment plan owed deference. This Comment argues this holds true whether the intrastate stalemate presents as (1) an intralegislative conflict, due to one or both legislative branches failing to agree on a map or to garner sufficient votes to pass a map; (2) a conflict between the state’s legislative branch and the executive branch via the governor vetoing a legislatively passed map; or (3) a conflict between the state judiciary and the mapmaking body over the state constitutionality of the reapportionment plan. Instead, this Comment argues that the controlling source of state policy owed deference when remediating an intrastate redistricting stalemate must be the state’s constitution over other conflicting sources of state policy.

Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. In the absence of an "applicable" policy statement from the Commission, courts temporarily enjoyed the discretion to determine what circumstances justify compassionate release. Perhaps unsurprisingly, circuit courts have disagreed on whether certain circumstances could, as a matter of law, justify a grant of compassionate release, causing geographic disparity in individuals’ ability to receive compassion. In April 2023, the Commission updated its policy statement and included a catchall provision codifying judicial discretion and, unless the Commission acts, the disparity that discretion invites. This Comment argues that for judicial discretion to improve compassionate release, the Commission must exercise its authority to resolve circuit splits by promulgating updated policy statements that decide disputed questions and abrogate conflicting circuit case law so that compassionate release can enjoy the benefits of that discretion without accepting the disparity discretion often creates.

This Comment delves into the Cold War legacy of uranium mining on the Navajo Nation. Today, unremediated hazardous waste from more than five hundred deserted mines has continued to poison the health and lands of the Navajo. This Comment argues that the federal government is ultimately liable for the remediation of these mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, because the federal government held legal title to the mining lands and tightly managed the mining operations, the federal government satisfies CERCLA’s liability regime for “owners” and “operators.” The U.S. government’s liability under CERCLA warrants fuller attention by the U.S. Environmental Protection Agency (EPA), Congress, and states in order to achieve the complete, long-overdue remediation of these uranium mines.

The test for qualified immunity states that officers are immune from liability in the absence of clearly established law that previously condemned their conduct, but the Supreme Court has not defined exactly what “clearly established law” means. In a set of conflicting cases, the Court has both repudiated the consideration of departmental policies as clearly established law and, subsequently, cited departmental policies as evidence of clearly established law. As a result of this ambiguity, lower courts have been inconsistent—even within circuits—about whether departmental policies count as clearly established law. This Comment addresses this gap in the doctrine by proposing a solution that ameliorates the legal fiction at the heart of the clearly-established-law inquiry. Using Hope v. Pelzer’s obviousness exception to the clearly-established-law requirement, this Comment proposes incorporating departmental policies into the qualified immunity doctrine as an objective measure for determining when an officer’s rights violation was obvious.

This Comment argues that one-time land-use decisions should not be categorically excluded from disparate impact liability under the FHA for three reasons. First, one-time employment decisions may serve as the basis for disparate impact liability under two analogous civil rights statutes—Title VII and the Age Discrimination in Employment Act—indicating that the same is true for one-time land-use decisions under the FHA. Second, the distinction between a policy and a one-time decision is untenable and provides little guidance for courts. Third, seminal appellate court cases which first established disparate impact liability under the FHA involved one-time land-use decisions, indicating that such decisions constitute the heartland of disparate impact theory. The Comment concludes by providing further clarity about which particular one-time land-use decisions should enable litigants to establish successful disparate impact claims.

Using Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. as a jumping off point, this Comment is the first piece of legal scholarship to examine whether, and under what circumstances, health insurers can induce infringement of a method patent by providing preferential coverage of a skinny label generic when it is distributed for a patented drug indication. An evaluation of this question requires examining the standard of causation in induced infringement cases, a subject that has received startlingly little judicial or scholarly inquiry. This Comment argues that the Delaware district court’s decision in Amarin was based on an improper theory of causation that assumed insurance companies have a duty to prevent infringement. It then establishes that the proper counterfactual baseline for evaluating inducement claims against insurers reveals that insurance companies are rarely the but-for cause of infringement in the skinny label context. Ultimately, the Comment demonstrates that adopting a loss of chance theory of the injury in future cases would force courts to conduct often-ignored causation analysis and ensure that a finding of inducement corresponds with a proportionate damages award.

This Comment argues that Justice Gorsuch’s opinion is not merely relevant for the scope of Title VII but also has ramifications for the scope of § 1985(3) because it gives rise to three key propositions: (1) federal law now condemns anti-LGBT discrimination, affording special protections to LGBT folks; (2) discrimination against LGBT folks necessarily constitutes discrimination on the basis of sex; and (3) legislative history should only be used if the relevant statute is genuinely ambiguous. Justice Gorsuch has thus provided LGBT plaintiffs with a master key, suggesting arguments tailored to each circuit’s position on sex-based discrimination, such that any circuit should permit LGBT folks to use § 1985(3) in the wake of Bostock.

In recent years, uptier transactions have emerged as a novel way for distressed companies to restructure their debt obligations, resulting in unforeseen and inequitable outcomes for investors in corporate debt. Uptier transactions depend on provisions in credit agreements that permit debtholders with a majority stake in a class of debt to make decisions on behalf of all debtholders. Distressed companies take advantage of these provisions by colluding with a majority of debtholders to shift economic value from the remaining debtholders to themselves. As this Comment demonstrates, these transactions are likely to be value destructive and present an issue for capital markets. Unfortunately, the contractual solutions available to debtholders to prevent uptier transactions either are insufficient or impose substantial costs on parties.

This Comment addresses how courts should decide whether non-verbal conduct is “speech” within the meaning of the First Amendment. In Spence v. Washington, the Supreme Court devised a two-part test for determining whether non-verbal conduct is expressive, which has subsequently become known as the “Spence test.” In its subsequent cases, however, the Court has made clear that the category of “expressive conduct” includes a wider variety of non-verbal behaviors than a literal reading of the Spence test would suggest. Drawing on the work of twentieth-century philosopher Paul Grice, this Comment proposes a two-part test that captures the expressive character of this wider variety of behaviors, and demonstrates how lower courts might employ the test either as a replacement for, or as a supplement to, the Spence test.

At the beginning of 2022, there were 196,714 affirmative asylum claims pending, and many applicants have waited in a state of legal limbo for over five years to receive a decision on their claim. To escape the indefinite queue, some have started bringing claims of unreasonable delay under the Administrative Procedure Act (APA) to federal courts. Because there are groups of asylum seekers who may be especially harmed by multiyear delays in adjudication, this Comment undertakes two separate but related tasks. First, it assesses whether the avenue for relief available to advocates and asylum seekers—federal court litigation—is actually viable for its purported ends. This Comment concludes that it is not. Second, it proposes a novel agency-side adjudicative mechanism, implemented through artificial intelligence technology, to more adequately provide reliable relief to especially vulnerable asylum seekers.