Rethinking Originalism

 (Source) Introduction With Amy Coney Barrett’s confirmation, the Supreme Court now has a firm supermajority of Republican-nominated justices for the first time in over a decade. Although this almost certainly will affect how the Court will now decide on a host of crucial policy issues moving forward, from allegations of electoral fraud, to abortion, to gun rights, to constitutional issues arising out of the coronavirus lockdowns, many Republicans see Justice Barret’s nomination as the last frontier to effectuate meaningful political change given the ongoing and seemingly endless gridlock affecting both the Presidency and Congress.  While it is true that the Court has for several decades now had a firm majority of justices selected by Republican presidents, some of the most landmark cases of the past five decades (i.e., Roe, Obergefell, and Sebelius, just to name a few)—often perceived as reaching the “liberal outcome” in terms of expanding substantive due process constitutional rights that went beyond the plain meaning of the text—were actually penned by Republican-appointed justices. The most notable of these decisions, Roe v. Wade, codifying the right to abortion, was written by Harry Blackmun, a Richard Nixon appointee.  Relatedly, John Roberts, who was appointed as Chief Justice by President [read more]

Rep. Haaland’s Historic Nomination: Diving into the “Department of Everything Else”

(Source) The recent weeks have brought fear and speculation to a largely anonymous and indistinct Department. President Biden nominated Representative Deb Haaland of New Mexico as his pick for Secretary of the Department of Interior. If appointed by the Senate, Haaland would become the first Native American to ever hold this position – an event long overdue, as the Department oversees the Federal government’s trust obligation to Native American nations. Haaland, a citizen of the Pueblo of Laguna, already shares a historic title with Representative Sharice Davids as the first Native American congresswomen. This time, Haaland’s historic moment is met with fierce opposition urging Biden to withdraw the nomination. Although cabinet nominees have been contested in the past, no Secretary of the Interior has ever been rejected by the Senate. The Biden Administration has yet to comment on the opposition to the nomination, but has already taken executive actions aligned with Haaland’s environmental attitude, such as the sixty-day ban on oil and gas leases and drilling permits. While the dates for her confirmation remain up in the air, the growing opposition begs the question: why all the fuss?  The Department of the Interior’s National Role In 1849, Congress created the [read more]

The Price Is Not Right: Solving Student Debt Starts with Stopping Soaring Tuition Cost

(Source) On August 8, 2020, the former Secretary of Education renewed the suspension of student loans, stopped collections, and waived federal loan interest until the end of the year. The action taken by the federal government acknowledges that there is a problem but addresses only the immediate threat by providing temporary relief. In September, some senators called for the former President to cancel $50,000 of student borrower debt under the Higher Education Act, the effects of which would endure beyond the pandemic. However, both solutions are limited, as they fail to address the source of the student debt crisis: the precipitously increasing cost of higher education placing borrowers in a strenuous situation: paying off thousands of dollars in student loan debt for ages after graduation. Part of the challenge of addressing the larger problem lies in the lack of consensus about what causes the price of higher education to increase. Bill Bennett, the Reagan Administration’s Secretary of Education, launched one prominent theory on why tuition prices continue to climb. Commonly known as the Bennett Hypothesis, Bill Bennett blamed colleges for exploiting federal financial aid expansions by raising tuition prices, believing the subsidies would“cushion the increase.” He criticized colleges for being [read more]

Evictions Are Coming: An In-Depth Look at the COVID-19 Eviction Crisis

(Source) In the United States, nearly 1.4 million people per year spend time in a shelter, and there are more homeless people than the population of some rural states. For those living in city centers, it is an unignorable issue. A home is a foundation on which people build their lives—losing the place you call home can have serious impacts on one’s ability to obtain financial stability and can have impacts on one’s mental health. When the COVID-19 (“COVID”) pandemic hit American shores, it not only devastated the health of communities but also their financial stability, specifically impacting communities of color more severely. During the hardest hit months of the pandemic, over fourteen million Americans filed for unemployment. This spike in unemployment meant families lost the ability to financially provide for themselves, and for many of them, the debt of every day expenses, such as rent, began to accumulate. The looming threat of eviction hangs over many of these families who worry that they will be just another homeless statistic. This piece explores the eviction moratoriums the federal government and the New York state government put in place and analyzes the protections they provide to tenants. It is important to [read more]

Forced Sterilizations — A Discriminatory Reality, Not a Relic of the Past

(Source) Content warning: Rape, sexual assault. It has only been six months since a shocking whistleblower allegation regarding forced hysterectomies and medical neglect at an Immigration and Customs Enforcement (“ICE”) detention center in Georgia. Dawn Wooten, a licensed nurse who previously worked at the ICE detention center — the privately-operated Irwin County Detention Center — filed a complaint regarding the numerous hysterectomies performed on Spanish-speaking immigrant women without any prior informed consent. She also expressed concern over the alleged deliberate “lack of medical care, unsafe work practices and absence of adequate protection against COVID-19.” In 2020, these allegations — reproductive organs being forcibly removed without the woman’s consent — almost sounded too inhumane to be true. These allegations, however, have brought to light that forced sterilizations are a remnant of the long legacy of eugenics in the United States and, contrary to popular belief, are not a relic of the past but a harsh reality even today. Sir Francis Galton, Charles Darwin’s half-cousin, coined the term “eugenics” in 1883. The term stemmed from an inaccurate interpretation of Gregor Mendel’s pea pods and Darwin’s theories and stood for the idea that many social ills were perpetuated by rapid reproduction and growth [read more]

A Dodger’s Dilemma: The Possibility of Civil Liability for Justin Turner’s World Series Celebration

(Source) The Los Angeles Dodgers finally broke “The Curse of ‘88” and won the World Series on October 27, 2020, beating the Tampa Bay Rays four games to two. While the Dodger’s Fall Classic win certainly attracted a large source of attention, a significant portion of news centered not on the game itself but instead on the actions of one player in particular. Justin Turner, the Dodger’s third baseman, played a crucial role in the team’s World Series run and subsequent victory, but was mysteriously pulled from the series-clinching game after the seventh inning. The MLB discovered midgame that a COVID-19 test Turner took earlier that day had come back positive and immediately notified the Dodgers, who promptly pulled their third baseman out of the game. As per player and League agreed-upon protocols, the team then ordered Turner to remain in self-isolation. However, after the Dodgers secured their first World Series win in thirty-two years, Turner disregarded these instructions and joined his team for the on-field celebration. Although Turner initially wore a mask when he returned to Globe Life Field, he was seen with his mask off on multiple occasions, including while sitting in close proximity to his teammates for [read more]

SPACs: Avoiding Volatility, Evading Regulation

(Source) The American economy shattered records in 2020. In April, the unemployment rate rose to 14.7%, the highest rate in the history of the data. By June, national debt had increased by twenty-five percentage points since the end of 2019, the strongest surge in history. In July, the Bureau of Economic Analysis found that U.S. gross domestic product fell 31.4% during the second quarter, representing the biggest recorded contraction of that figure. Two-thousand twenty was a record-breaking year for Wall Street, too. On March 16, the Dow lost 2,997.10 points, a larger one-day percentage slide than the one on Black Monday in 1929. However, by August, the Dow had erased all of its 2020 losses and the S&P 500 closed at an all-time high after its severe plummet earlier in the year.  There was another source of record-breaking activity on Wall Street last year. Special-purpose acquisition companies, or “SPACs,” have entered the market in unprecedented numbers. In 2020, SPACs conducted 248 initial public offerings (“IPOs”) and raised over $83 million. By contrast, 2019 –  also an unprecedented year for SPACs – saw only fifty-nine SPAC IPOs and $13.6 million raised. SPACs are public companies formed for the purpose of merging [read more]

Proposition 22: What Does Your Uber Driver Deserve?

(Source) On November 3, 2020, in the throes of one of the most contentious presidential elections in history, all eyes at Uber and Lyft were on California. The rise of the gig economy—a labor market that relies on independent contractors and freelance workers outside of traditional labor regulations—is a major subject of discussion among legislators across the nation. California’s efforts to reform and regulate the gig economy hinged on the passage or failure of Proposition 22 (“Prop 22”), a ballot initiative that defines app-based transportation and delivery drivers as independent contractors with their own personalized labor and wage policies. The gig economy titans spent more than $200 million on their campaign in support of the measure, the most expensive in the state’s history. This past November, the titans rejoiced: Prop 22 had passed with 58% of the vote. But what does Prop 22 mean for California’s app-based drivers, and what are its consequences for gig economy workers nationwide? Gig economy giants, such as Uber and Lyft, assert that their app-based drivers are independent contractors, not employees. As independent contractors, drivers are exempted from major traditional protections under the National Labor Relations Act (“NLRA”) and other social protections like unemployment, workers [read more]

No More Zoom Law School?: The Constitutionality of Mandatory Vaccine Laws

(Source) “We’re very close to [the COVID-19] vaccine,” former President Trump stated in a press brief on September 16, 2020, suggesting that a vaccine could be ready by election day. Then-President-elect Biden responded that he did not trust the President to determine when a vaccine would be ready for the public. On November 9, 2020, Pfizer, as part of Operation Warp Speed, announced early results from its COVID-19 vaccine trial that suggest that the their vaccine was more than 90 percent effective. Since the election, President Biden has been more aggressive in ensuring that more vaccines are available by pledging to purchase 200 million addition vaccine doses. Assuming that the vaccine can be delivered safely and effectively, can the state and federal governments require such vaccine? State Government The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property without due process of law.” However, the liberty protected by the Constitution is not absolute. The Supreme Court has recognized that a state can exercise its police power by enacting reasonable regulations to protect public health and safety. The Supreme Court first addressed the constitutionality of mandatory vaccine laws in 1905. In Jacobson v. Massachusetts, the Court [read more]

If the Personal is Political, Then So is Food

(Source) Introduction Earlier this year, Mike Jozwik, the owner of Mushroom Mike LLC, discovered a method to consistently cultivate a corn fungus called Ustilago maydis after five years of experimentation. “Mushroom Mike” sees himself as a fungus expert, and is the mainstay edible mushroom supplier to most high-end restaurants from Milwaukee to Chicago to Madison. He’s in the process of creating a new business, which he is calling WiscoHuit LLC, specifically to sell U. maydis to restaurants and individuals. But Jozwik is far from the first person to discover U. maydis cultivation on this continent. The Indigenous peoples of central Mexico have been cultivating and consuming U. maydis since, food historians theorize, before Europeans ever arrived on the American continent. They call it “huitlacoche,” and it’s seen as a popular delicacy in Mexico, with over 400 to 500 tons of it sold in Mexico City annually. However, in the U.S., it’s called “corn smut” and seen as a destructive blight on corn crops, akin to a mold, that renders the underlying corn unsellable. As a result, it is relegated to harvests of fringe, seemingly “underground” farmers and restauranteurs. Because, as Jozwik points out, most genetically modified strains of corn have [read more]
1 2 3 4 17