Patterns of Panic

Disruptions in the constitutional order can agitate social anxiety, particularly when an out-group on the rise challenges an in-group’s political dominance and position in a constitutional regime. This has been acutely true concerning civil rights expansion, where civil rights opponents have turned to libertarian theories of law when their cultural currency is on the ropes. This essay highlights some of the similarities between libertarian ideological impulses at critical junctures of American constitutional development during Reconstruction and in resistance to the rights of gay, lesbian, bisexual, and transgender Americans in the twenty-first century. In these two crucial moments of constitutional development, a similar pattern of panic emerged whereby opponents to a more progressive constitutional order worked to steer civil rights jurisprudence toward a deregulatory, market-centered theory of rights, favoring live-and-let-live approaches to remedying social inequality over a state-backed right to dignity in the public square

Divine Law or Constitutional Flaw: The Clash of Religious Belief and Legal Neutrality in Missouri’s Abortion Ban

This Note explores the constitutional implications of Missouri’s recent abortion ban enacted in the wake of the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade and Planned Parenthood v. Casey. This Note examines the clash of religious beliefs and the law by dissecting the legislative history and intent behind Missouri’s abortion ban. The ban, known as House Bill 126 or the “Missouri Stands for the Unborn Act,” took effect immediately upon certification by State Attorney General Eric Schmitt and prohibits nearly all abortions, except in cases of a narrowly defined “medical emergency.” Notably, the law invokes religious language, asserting that “Almighty God” is the author of life and framing the state as a “sanctuary of life.” Through an analysis of the historical background, legislative series of events, and contemporaneous statements made by lawmakers, this Note argues that Missouri’s abortion ban unconstitutionally establishes Christian beliefs into law. This Note analyzes a hypothetical Establishment Clause-based challenge to Missouri’s abortion ban, arguing that the ban infringes upon the neutrality required by the First Amendment. It scrutinizes the religious undertones in the legislative process, which seemingly favor Christian beliefs over other faith traditions or non-religious perspectives. Ultimately, this Note offers a critical examination of the implications of Missouri’s abortion ban within the context of religious freedom and constitutional law. It contends that the ban, rooted in religious ideals, violates the Establishment Clause by imposing religiously motivated legislation on all citizens, regardless of their personal beliefs or traditions

International Efforts to Collect Evidence Related to Russia’s Aggression Against Ukraine

International law has been at the very center of the global response to Russia’s aggression against Ukraine since February 2022. Evidence collection has become one of the core elements of this international law response. The April 2023 keynote address on which this article is based focused on international efforts to collect evidence related to Russia’s aggression against Ukraine. Specifically, this article focuses on responses in Ukraine, the United States, the European Union, and other jurisdictions on behalf of governments, international organizations, and civil society organizations to collect evidence related to war crimes, crimes against humanity, genocide, and aggression by all parties to the conflict

Second-Tier Marriages

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now on the books, the Supreme Court\u27s treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm\u27n and 303 Creative LLC v. Elenis reveals the status quo\u27s hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court\u27s LGBTQ rights advancement cases why such diminishment has occurred in Masterpiece and 303 Creative and what these recent decisions mean for sexual minorities. Retrenchment is not an unexpected halt to the LGBTQ rights progress of the early 2010s because of some new grievance from the status quo; rather, retrenchment is part of the ongoing establishment\u27s maneuverings involving group rights and identities that have always been at play in our democratic commitments-particularly as a settler colonial state. Specifically, from a historical-political perspective, this Essay anchors Masterpiece and 303 Creative within our American settler colonial experience to explain the persistence of retrenchment. From this anchoring, the Court\u27s motivations in 303 Creative become clearer. Ultimately, the American settler colonial experience informs the Court\u27s normative vision of queer people and relationships post-Obergefell. As this Essay reveals, these post-Obergefell decisions that involve same-sex couples allow the Court to normatively envision same-sex relationships after marriage equality—putting an imprimatur on same-sex relationships as second-tier to opposite-sex relationships as a way to ultimately preserve or privilege a discriminatory, heteronormative status quo

Immunity Through Bankruptcy for the Sackler Family

In August 2023, the U.S. Supreme Court temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power. Of course, bankruptcy courts often limit liability against a distressed company, but here, the Sacklers did not themselves declare bankruptcy. Instead, they added about $6 billion to the pot—compared with$600 billion in annual costs from the opioid crisis, by some estimates—and are allowed to keep any remaining profits. The bankruptcy court justified immunity on the grounds that the Sacklers’ money was protected in offshore accounts and trusts and therefore could not be reached through tort liability—all the better to have them participate voluntarily. In other words, the Sacklers laid the groundwork for their own immunity by sheltering the money they withdrew from Purdue. We have doubts that a single court should have the enormous power of shielding the Sackler Family from all future civil liability for the opioid crisis, simply to enlarge a settlement. Public health litigation has the power to address root causes of public health crises by disincentivizing unscrupulous actors. Granting these actors immunity may insulate them from public criticism while undermining the important role of courts as an avenue of recourse. Upholding immunity for the Sackler family would lay the groundwork for future executives to ride a company into the ground, at the expense of public health, golden parachute ready and waiting

The Demanding Idea of Consent to International Law

The concept of consenting to international law is no simple idea. It rests on sophisticated discursive moves. This article seeks to unpack five of the main discursive moves witnessed in literature and case-law discussing consent to international law. This article argues that these five specific discursive moves are performed, as is claimed here, by almost anyone analyzing the question of consent to international law, be such engagement on the more orthodox side or a critique from the argumentative side of the spectrum. These five discursive moves are (1) the reproduction of a very modernist understanding of authority, (2) the constitution of the very subject that is consenting, (3) the anonymization of the author of consent, (4) the reversal of the temporality of the legal discourse on consent, (5) and the adoption of very binary patterns of thought. This article shows that discursive moves made by international lawyers regarding the idea of consent bear heavily upon the type of political legitimacy, geography, responsibility, and hermeneutics that international law serves

Prioritizing Student Well-Being: Name and Pronoun Policies in K-12 Schools

While federal protections against discrimination for LGBTQ students have increased in the past few years, at the same time state legislatures have proposed hundreds of anti-LGBTQ bills targeting transgender youth. With more students identifying as transgender or nonbinary, there is a need for clear policies on the usage of chosen names and pronouns in K-12 public schools. Schools need to be prepared to handle transgender and nonbinary students before a need arises. This article discusses the potential conflicts between the individual interests involved when name and pronoun policies are applied in K-12 public schools. When drafting and enforcing name and pronoun policies, school administrators must navigate the disconnect between prioritizing student well-being, teachers’ rights, parental demands, and complying with sometimes conflicting state and federal laws. Public schools should create policies that support transgender and nonbinary students through the usage of gender-affirming names and pronouns not only to follow federal law, but also to support the students’ health, well-being, and academic success. Ultimately, student well-being should be the priority

Second-Tier Marriages

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now “on the books,” the Supreme Court’s treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n and 303 Creative LLC v. Elenis reveals the status quo’s hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court’s LGBTQ rights advancement cases why such diminishment has occurred in Masterpiece and 303 Creative and what these recent decisions mean for sexual minorities. Retrenchment is not an unexpected halt to the LGBTQ rights progress of the early 2010s because of some new grievance from the status quo; rather, retrenchment is part of the ongoing establishment’s maneuverings involving group rights and identities that have always been at play in our democratic commitments—particularly as a settler colonial state. Specifically, from a historical-political perspective, this Essay anchors Masterpiece and 303 Creative within our American settler colonial experience to explain the persistence of retrenchment. From this anchoring, the Court’s motivations in 303 Creative become clearer. Ultimately, the American settler colonial experience informs the Court’s normative vision of queer people and relationships post-Obergefell. As this Essay reveals, these post-Obergefell decisions that involve same-sex couples allow the Court to normatively envision same-sex relationships after marriage equality—putting an imprimatur on same-sex relationships as second-tier to opposite-sex relationships as a way to ultimately preserve or privilege a discriminatory, heteronormative status quo

Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes