Fertility Fraud: The Child\u27s Claims

A shocking number of fertility doctors surreptitiously use their own sperm during insemination procedures. Courts and commentators have explained how medical malpractice and common-law tort claims can provide the mother with remedies. The children of fertility fraud have received less attention. This Essay is the first to systematically analyze the potential claims of these children, whose identities may be shattered by discovering the truth about their biological father. It concludes that creative use of existing common-law torts can provide remedies for children of fertility fraud

Young Guns: The Constitutionality of Raising the Minimum Purchase Age for Firearms to Twenty-One

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High School, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately challenged the law in federal court, claiming that it violated the Second Amendment rights of young adults aged eighteen to twenty. In 2021, in National Rifle Ass’n v. Swearingen, the U.S. District Court for the Northern District of Florida held that the law is consistent with the Second Amendment. This Note discusses how federal and state statutory regimes interact with the Court’s Second Amendment jurisprudence to govern young adults’ access to firearms. It examines arguments concerning the constitutionality of Florida’s minimum purchase-age provision and contends that the measure is valid because it is analogous to the “presumptively lawful” restrictions identified in Heller and because it survives intermediate scrutiny

The Right to Protest for Right : Reaffirming the First Amendment Principle That Limits the Tort Liability of Protest Organizers

On December 16, 2019, the U.S. Court of Appeals for the Fifth Circuit held in Doe v. Mckesson that a court could hold DeRay Mckesson liable for damages to a police officer whom an unidentified assailant injured at a 2016 Black Lives Matter protest that Mckesson helped organize. Mckesson did not cause the officer’s injuries, and he did not order, encourage, or incite the protestors at the demonstration to act violently. The Fifth Circuit held that Mckesson could be liable only because he played a role in organizing the demonstration. In 1982, the U.S. Supreme Court set forth an important principle in NAACP v. Claiborne Hardware Co. that limited the extent to which a court could hold protest organizers engaged in protected First Amendment activity liable for the violent acts of third parties. Many First Amendment scholars considered the Fifth Circuit’s decision in Doe v. Mckesson a direct affront to the principle set out in Claiborne Hardware. Indeed, Mckesson engaged in core protected speech activity when he protested police misconduct and thus should have fallen under the protection of the stringent standard. In November of 2020, in Doe v. Mckesson, the Supreme Court reversed and remanded the Fifth Circuit’s decision, but it did so in a per curiam opinion based only on issues concerning Louisiana tort law theories, leaving the First Amendment implications unanswered. This Note argues that the limited liability principle set forth in Claiborne Hardware is an essential protection for organizers and for democracy, such that the Supreme Court should look for opportunities to reaffirm it in the wake of the Fifth Circuit’s latest attack

Redemption Localism

In the decades after the end of the Civil War, avowed white supremacists across the South sought to “redeem” their state and county governments from the clutches of the hated “radicals” who had taken control during Reconstruction. These Redeemers developed an approach to local power and local control that served their broader political goal of reestablishing white supremacist rule. In their effort to ensure that white citizens were not subjected to “negro rule,” they developed a “Redemption Localism” that consistently sought to limit local power, curtail local democracy, and defund or eliminate local services. This Article tells the story of Redemption Localism as it operated in one state: North Carolina. But I argue that this story has much to teach us about localism across the post-Civil War South and about our localism today. While much of the scholarly conversation about localism focuses on the virtues (and vices) of local control versus centralization, the question for Redeemers was never whether, as an abstract matter, local control was preferable to centralized control. Rather, at decision point after decision point, the question was how the balance between local and state power could be manipulated and adjusted to protect the Redeemers’ political power and further the struggle for white supremacy. This instrumental attitude towards localism remains familiar today as the tools and structures of local power are manipulated to suppress Black voting power, dilute the voices of multiracial local democracies, and maintain existing distributions of power, wealth, and privilege

Immigration E-Carceration: A Faustian Bargain

Immigration detainees and their advocates have a Faustian Bargain: they may trade the physical walls of jail for the virtual walls of electronic monitoring. But they are merely begging for a different form of punishment and control, since electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive. Its use also facilitates replacing a regime of over-detention with one of over-supervision, and becomes the means by which immigration enforcement authorities surveil immigrant communities. The Supreme Court’s immigration detention doctrine has set up this bargain by succumbing to the plenary power’s defenders. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities. Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal justice system, this “middle ground” ceded too much ground. This article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides

Accountable to None? Challenging Sovereign Immunity Through the Trafficking Victims Protection Act

Although amendments to the Trafficking Victims Protection Act (TVPA) have opened the door to greater corporate liability, government liability under the TVPA remains murky. A critical barrier that plaintiffs suing government entities confront is the broad protection from suit that states enjoy under the Eleventh Amendment. One of the few exceptions to this protection is congressional abrogation of state sovereign immunity. In 1996, the Supreme Court held in Seminole Tribe of Florida v. Florida that to abrogate state sovereign immunity, Congress must do so pursuant to a valid source of power. It further held that this valid source includes Congress’s Fourteenth Amendment enforcement powers, but not its Article I powers. Although some courts interpreting the TVPA have noted its roots in the Commerce Clause of the Constitution (an Article I power), others reason that Congress enacted it pursuant to its Thirteenth Amendment enforcement power. This Note argues that Congress enacted the TVPA based on the Thirteenth Amendment, and therefore, suits against state defendants present a novel legal issue: can Congress abrogate state sovereign immunity pursuant to its power to enforce the Thirteenth Amendment? This Note answers in the affirmative. It contends that plaintiffs suing states under the TVPA have an opportunity to simultaneously seek remedy for violations of their rights, while also chipping away at restrictive abrogation precedent that continues to protect states at a high cost to individuals

Lower Court Originalism

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While this perspective unquestionably has value, it ignores the adjudicative context in which the vast majority of litigated constitutional questions are finally resolved. The question of whether and to what extent lower courts should use originalism in their own decisionmaking is hardly an insignificant one. Although lower courts are strictly bound to follow controlling Supreme Court precedent, these strictures leave open a wide domain in which the choice between originalism and other modes of decisionmaking might plausibly affect the content of lower courts’ decisions. But lower courts face a number of institutional limitations and challenges that do not directly confront the Supreme Court, including greater time and resource constraints and the inability to overrule directly controlling nonoriginalist precedents. This Article aims to examine lower court originalism by looking to a set of values commonly associated with our system of vertical stare decisis—including uniformity, accuracy, efficiency, percolation, and legitimacy—as well as a set of values commonly associated with originalism itself—including popular sovereignty, judicial restraint, desirable results, and positive law. In general, the use of originalism by lower court judges is likely to be more costly and error–prone than similar decisionmaking by the Supreme Court, while being less likely to directly further certain of the values most closely associated with originalism. This assessment does not necessarily suggest that lower courts should never seek to incorporate originalist methods into their own decisionmaking. But it does suggest the need for a cautious and thoughtful approach that takes proper account of the institutional limitations of lower court decisionmaking. These challenges are hardly unique to originalism. Similar challenges confront virtually all constitutional theories, particularly those that, like originalism, ask lower courts to look beyond the relatively familiar tools of case-focused, doctrinal reasoning

Pandemic Governance

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our existing decentralized and uncoordinated governance structures, and the result was devastating: the United States led the world in COVID-19 infections and deaths. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations. This Article makes sense of the early pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged, some conflictual and some collaborative. Governments undermined each other by destabilizing each other’s actions upward (when local governments undermined states), downward (when the federal government undermined states), and across (when the federal government undermined itself). They abdicated responsibility by failing to act. Governments collaborated by actively working together to harmonize policies. And they engaged in bandwagoning to avoid being the first mover in making pandemic policy, opting instead to follow or oppose the leads of others. Despite the seeming chaos of the early pandemic response, these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping policy roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided battles, providing a default set of relationships that became organizing principles for the early pandemic response. This Article uses these insights to sketch the contours of a way forward. It proposes a federal pandemic statute that emphasizes role clarity, state independence, and explicit governmental action to disrupt inequality. It additionally advocates for decentralized but inclusive subject-matter networks among federal, state, and local authorities to lessen the pull of partisanship