Reflections on Race, the Constitution, and Growing up in the Segregated South

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling. Note: The excerpts have been lightly edited, reordered, and notated in order to fit into a law review format

Mass Tort Litigation, Chapter 11, and Good Faith: Let Not Perfect Be the Enemy of Pretty, Pretty Good

Soon after enactment of the current Bankruptcy Code, Chapter 11 emerged as the forum of choice for companies seeking to resolve the otherwise intractable problems associated with mass tort liability. In recent years, the enactment of state law divisive merger statutes opened a new era in the evolution of mass tort liability cases. Specifically, companies could create a new entity that would assume responsibility for all outstanding tort claims, thus keeping the parent firm out of bankruptcy entirely. This practice, colloquially referred to as the Texas Two-Step, gained widespread notoriety when Johnson & Johnson placed its new subsidiary, LTL Management, LLC, into Chapter 11 to aggregate and resolve tens of thousands of asbestos claims arising from the use of its Baby Powder product. The filing produced a firestorm of criticism along the lines that the tactic was being used to escape accountability and reduce payouts to tort victims. After the Third Circuit dismissed the case as a bad faith filing, Johnson & Johnson tried again, but to no avail. Refusing to throw in the towel, and perhaps testing the definition of insanity, the company filed yet a third case. This time, however, Johnson & Johnson, obtained in advance the support of about 83 percent of current tort claimants for its proposed bankruptcy plan. The case is now pending. In this Essay, I take the contrarian view that the Texas Two-Step is not inherently evil and might simply represent the latest development in the management of mass tort claims through the bankruptcy system. While the potential for abuse exists, as with any tactic, it has yet to manifest itself in the Texas Two-Step cases filed so far, and, if properly monitored and controlled by the court, the maneuver could produce more timely settlements and superior value for all concerned

Facial Recognition AI: Alaska Is an Ideal Forum for Introducing Regulation

As artificial intelligence becomes increasingly commonplace, we are all exposed to shockingly dystopian forms of surveillance. This Note details the unique danger of facial recognition technologies powered by artificial intelligence. First, this Note examines the rise of facial recognition technologies in both the public and the private sector. It illustrates this phenomenon by highlighting a few key players in both the development and implementation of facial recognition. Second, it proceeds by examining the current privacy landscape in Alaska. Alaska\u27s unique focus on privacy rights makes the State a promising forum for regulation. Finally, it provides possible statutory and judicial solutions to stop the spread of these technologies and secure the privacy rights of Alaskan citizens and visitors

Bruen\u27s Enforcement Puzzle: Unearthing and Adjudicating the Historical Enforcement Record in Second Amendment Cases

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to be part of a larger inquiry into possible discriminatory taint, an issue the Court has previously addressed in the historical context in cases dealing with criminal procedure, voting rights, and equal protection. This Article seeks to identify lessons from these other areas of constitutional law to inform the treatment of enforcement evidence in Second Amendment cases after Bruen, where questions of historical enforcement can be especially nuanced. The Article makes three major contributions to the existing literature. It is the first in-depth scholarly examination of how Bruen treats enforcement evidence within its historical-tradition test, including by appearing to place the burden of proving non-discrimination on the government. Second, the Article identifies Bruen’s focus on possible discriminatory enforcement as a subspecies of historical discriminatory “taint” or legislative animus arguments and explores how Bruen may depart in important ways from the Court’s past practice. Finally, the Article uses original archival research into the local enforcement of North Carolina’s 1879 concealed-carry ban as a case study to demonstrate how assessing possible discriminatory taint for facially neutral historical laws presents unique challenges and to examine whether Bruen’s approach is well suited to appreciate and address such complexity

Children Are Different and Their Lawyers Should Be Too

Nearly sixty years ago, In re Gault guaranteed children in juvenile court the right to counsel. However, Gault fell short. While recognizing children’s distinct vulnerability, the Court created a right for children that is weaker than that of adults and failed to recognize how youth in fact require a more expansive right to counsel. Grounded in the stories of court-involved youth who received deficient representation, this Note illustrates the devastating consequences of Gault’s limitations. It argues that the differences between children and adults that compelled the Court to adopt additional protections for children in sentencing also justify an expanded right to counsel. The Note uses the characteristics of youth articulated in Eighth Amendment cases to recommend six changes to how children are represented. These changes are: first, requiring each jurisdiction to have a dedicated youth defender’s office, which provides specialized training and supervision; second, eliminating common conflicts of interest; third, making mitigation mandatory; fourth, guaranteeing the right to postdisposition advocacy; fifth, moving toward a holistic defense model; and sixth, adopting a youth-specific standard for ineffective-assistance-of-counsel claims

Section 702 Surveillance: Where Do We Go From Here?

Discussants: Prof. Shane Stansbury, Robinson Everett Distinguished Fellow in the Center for Law, Ethics, and National Security Senior Lecturing Fellow, Duke Law Mr. Ben Kastan, Senior Counsel, Data Protection and Cybersecurity at Visa, Global Privacy Offic