Our Government derives its legitimacy from the consent of the governed, generally measured through our elections. When incumbent powers create structures and rules for our politics that entrench the status quo and limit voter control, however, the legitimacy of that consent is tested. For more than fifty years, and in spite of the “political question doctrine,” the Supreme Court has adjudicated challenges to franchise restrictions, gerrymandering, ballot access provisions, and more. In doing so, the Court utilizes doctrinal frameworks that focus on harms to individual rights and not on structural harms to the competitiveness, accountability, and responsiveness of our politics. This myopic view leaves systemic entrenchment and political lockup largely untouched. Scholars have identified these doctrinal deficiencies, but have not suggested an alternative textual basis for judicial intervention in these cases. This Note offers a potential solution in the Guarantee Clause. It argues that the Clause embodies a promise of popular sovereignty in the states. I contend that the Guarantee Clause can and should be revived to unburden the courts from the deficiencies of existing doctrine and provide a textual basis for addressing the problems of political malfunction.
With the rise of the internet and computer storage, the loss and theft of individuals’ private information has become commonplace. Data breaches occur with increasing regularity, leading some to question if the current statutory and regulatory schemes properly incentivize the maintenance of adequate security measures amongst federal agencies. This Note argues that inadequate data security practices by government agencies implicate the constitutional right to informational privacy. While the Court has previously upheld intrusive personal information collection programs, the Privacy Act, which plays an essential role in the Court’s decisions, has been weakened significantly by recent interpretation of its damages provision. Given this change in the effectiveness of the statutory protection of private data, lawsuits alleging a violation of the constitutional right to informational privacy might succeed and could help incentivize optimal levels of data security amongst government agencies.
Being queer—like deviating from the norm in any way—can be socially disabling. So why not turn to disability law for redress? After a nationwide same-sex marriage ruling from the Supreme Court, many are devoting more attention to the current absence of uniform, federal employment discrimination protections for lesbian, gay, bisexual, and transgender (LGBT) people. As Title VII has grown friendlier to claims made by LGBT individuals, people are debating the merits of cognizing anti-LGBT bias as sex discrimination in the law. Meanwhile, the Equality Act, introduced in Congress in 2015, would ban discrimination on the basis of LGBT status throughout the country. But while vital, Title VII and the Equality Act could leave a gap through which queer people whose identities are not legible within the gender binary and are not politically stable as lesbian, gay, bisexual, or transgender are left out. This Note argues that LGBT people should challenge their current exclusion from the Americans with Disabilities Act (ADA) through constitutional litigation to fill this gap. Through its disavowal of traditional identity politics, the ADA offers an additional comparative advantage that has transformative potential for queer plaintiffs: Its foundation on the social model of disability topples the LGBT rights movement’s historic emphasis on respectability to enable unrestrained self-determination.
Dignity has been associated with death in two very different areas of constitutional jurisprudence: assisted suicide and the death penalty. This Note seeks to analyze what the concept of dignity means in these two contexts: who is the subject of dignity and what are dignity’s requirements? It argues that assisted suicide foregrounds the subjective dignity of the individual; what dignity involves is largely, though not wholly, a question of what an individual considers a dignified way to die. By contrast, the subject of dignity in death penalty jurisprudence is the collective and not the individual. Inasmuch as the jurisprudence claims to speak to the dignity of the individual, that dignity is objective and extends no further than collective dignity’s reach. As a result, what constitutes dignity in execution is almost wholly determined by what appears dignified to society. This Note ends by critically assessing how the two constitutional areas that link death and dignity may fruitfully inform each other. It suggests that assisted suicide’s individualistic dignity includes not just a right to decide how to die, but also a responsibility to collective society to consider how the nature of that suicide may impact collective dignity. In turn, in the death penalty context, states and courts should import subjective individual dignity considerations and reconsider whether their invocation of “dignity” in fact reflects a collective valuation of dignity or merely assuages social sensibilities by masking the reality of death.
Nearly half of all employers consider applicants’ credit histories when making some hiring or promotion decisions—and they risk violating Title VII of the Civil Rights Act of 1964 (Title VII) when they do so. Employer credit checks have a potentially disparate impact on minorities and an attenuated relationship to asserted concerns about job performance and employee theft. The case law analyzing disparate impact challenges to credit check policies, meanwhile, is sparse, leaving employers with little direction as they shape their practices. This Note suggests that the Equal Employment Opportunity Commission (EEOC) issue detailed guidance on employers’ use of credit checks and proposes a novel framework drawn from agency guidance on the use of criminal records, which adopts the Eighth Circuit’s Green factors. Specifically, the EEOC ought to recommend that employers take into account the source or type of debt, the time between the “negative behavior” and the employment decision, and the nature of the job; the guidelines should also advocate for individualized assessments. Guidance along these lines would clarify what constitutes lawful credit check usage and benefit the job-seekers that Congress intended to protect with Title VII’s enactment.
The prevailing medical consensus is that drug addiction and alcoholism are disabilities. Before 1996, SSI and SSDI, the nation’s major disability benefits programs, recognized that consensus and provided benefits to people struggling with addiction. Then, the “DAA materiality” provision of Congress’s 1996 welfare reform legislation revoked eligibility not only from people struggling with addiction, but also from people with addiction and another severe disability whose addiction contributes to the severity of the other disability. For this latter group of “dual-diagnosis” claimants, it is often impossible to determine which of a claimant’s impairments would remain absent substance abuse. In such cases, the evidence is in equipoise, and whichever party bears the burden of proof of DAA materiality will lose. Despite its importance to many disability benefits claimants, the issue of who bears the burden of proof remains unresolved, with the Social Security Administration placing the burden on the government and a split among the federal appeals courts that have taken up the issue. This Note argues that the burden of proof of DAA materiality should fall on the government. It shows that the DAA materiality provision creates an exception to the definition of disability in the Social Security Act that functions like an affirmative defense for the government to deny benefits to otherwise eligible claimants. It then contrasts the many obstacles facing dual-diagnosis claimants with the government’s superior resources and expertise to offer proof on the complex DAA materiality issue.
In recent years, antidiscrimination scholars have focused on the productive possibilities of the “universal turn,” a strategy that calls on attorneys to convert particularist claims, like race discrimination claims, into broader universalist claims that secure basic dignity, liberty, and fairness rights for all. Scholars have urged litigators to employ universalist strategies in constitutional and voting rights cases, as well as in employment litigation. Thus far, however, arguments made in favor of universalism have largely been abstract and theoretical and therefore have failed to fully consider the second-order effects of universalist strategies on the ground. In this Article, we challenge the prevailing arguments in favor of universalism by exploring the market consequences as lawyers shift from particularist Title VII race discrimination claims to universalist Fair Labor Standards Act claims. Drawing on a review of case filing statistics and an inductive, purposeful sample of attorney interviews, we describe a phenomenon we call “post-racial hydraulics,” which are a set of non-ideological, economic, and pragmatism-based drivers produced by the trend toward universalism. Post-racial hydraulics must be understood as key but previously unexplored factors in racial formation. Left unchecked, these non-ideological drivers will have substantive ideological effects, as they threaten to fundamentally reshape the employment litigation market and alter our understanding of race discrimination.
Title VI charges the federal government with removing discrimination in our public institutions. In light of disparate impact claims concerning a range of racially discriminatory education practices, this Note makes the case for the benefit of an official regulation from the U.S. Department of Education—as a federal arm—that more specifically informs the disparate impact framework’s educational necessity standard. This regulation would not only aid plaintiffs seeking to challenge harmful educational practices, but also provide courts with more specific and authoritative guidance in adjudicating Title VI disparate impact claims. This Note argues that a beneficial starting point for such a regulation would make clear that a discriminatory school policy should be evaluated based on whether a school policy advances equal educational opportunities and whether the school is in the best position to remedy a policy that does not. A regulation guided by this standard comports with Title VI’s original intention of rooting out discrimination against protected minority groups as well as helps to ensure minorities’ full access to a high quality public education.
Notwithstanding Title VII legal remedies, structural barriers have driven many teachers of color out of the workforce in recent decades. Legislative changes in education policy have exacerbated the problem, notably by mandating teacher certification exams. These exams often disproportionately affect teachers of color. Many teachers suing under a Title VII disparate impact claim, however, cannot name states—the actors that create and promulgate the tests—as defendants because courts have interpreted Title VII’s employment relationship requirement to preclude state-defendants. This Note proposes a framework that involves a real-world analysis of the extent to which states control local school governance. The framework shows that courts should allow state-defendants in these Title VII disparate impact claims when the test at issue is a state-mandated teacher certification test.
In Padilla v. Kentucky, the Supreme Court declared that defense attorneys must give advice to noncitizen defendants regarding the risk of deportation in order to meet the constitutional standard for effective assistance of counsel. Acknowledging the confusing nature of immigration law, the Court stated that when the law is not straightforward, a criminal defense attorney need do no more than advise a noncitizen client that a conviction may carry a risk of adverse immigration consequences. However, when the deportation consequence is clear, the attorney must give similarly clear advice. Some lower courts have chipped away at Padilla’s holding, allowing vague advice—either from the defense attorney or from other sources—to be deemed effective even in cases where Padilla would seem to require more specific advice. In treating vague defense attorney advice as reasonable, or allowing generic warnings from the court or arresting officers to “cure” a lack of immigration advice from defense attorneys, courts are circumventing Padilla’s demand for specific advice in situations where the consequences of a guilty plea are clear, and thus undermining the underlying concerns of the Supreme Court’s reasoning. Especially in cases where deportation is virtually mandatory, receiving general advice that there is a “risk” of deportation leaves a client with the impression that there is a chance to stay in the country. This impression could have a serious effect on the defendant’s ultimate decision to plead guilty or go to trial. Furthermore, these courts’ approach gives little incentive for defense attorneys to look into the immigration consequences of their clients’ convictions. This Note argues that courts should not allow generalized and unclear advice to meet the standard for effective assistance of counsel when the immigration consequences are actually clear-cut, because doing so undercuts the purpose of the Padilla decision and is unhelpful to noncitizen clients.