Preclusive Jurisdictional Dismissals

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still be fruitless and justly precluded. However, this pragmatic approach, and the rich body of scholarship accompanying it, vanishes in cases where the rendering court declares that it lacks jurisdiction and does not attempt to decide the case on the merits. Courts confronted with the preclusive effect of such jurisdictional dismissals default to the longstanding view that such dismissals carry no preclusive effect on relitigation on the merits. This Note challenges this bright-line rule by arguing that where a jurisdictional dismissal is predicated on a determination that is intertwined with the merits, the values underlying preclusion should take priority

Take in Case of Emergency: Reconciling Necessity Takings with the Original Meaning of the Takings Clause

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that. Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social problems, ranging from climate change mitigation to expanded public restroom access. This Note attempts to ground necessity doctrine in the text and history of the Fifth Amendment’s Takings Clause through an originalist lens. The Takings Clause and necessity have a rich history, ripe for originalist analysis. After compiling and considering the relevant evidence, this Note argues the original meaning of the Fifth Amendment does not support a necessity exception to its compensation requirement. Instead, it argues that only in circumscribed circumstances does the state’s compensation obligation fail to attach when it destroys private property

Crisis Convergence

Progressive jurists and legal scholars have called the Supreme Court’s doctrine of colorblind constitutionalism that dismantled affirmative action in Students for Fair Admissions v. President and Fellows of Harvard (SFFA) a crisis for constitutional democracy. However, scholars have not yet tended to students, particularly students mobilized for racial justice, to understand their interpretation of this race-evasive ideology and what insights those mobilized students might offer in this pivotal moment. Given the fact that a small coalition of dissenting conservative jurists, scholars, and mobilized students—the Federalist Society—spent decades crafting the doctrine, scholarship, and resources that drive colorblind constitutionalism and originalist doctrine, it seems that one way out of this crisis would be for progressive scholars to pursue a similar approach. This Essay intervenes by describing how mobilized students have demanded race-conscious laws despite the SFFA majority’s race-evasive ruling, highlighting where those demands converge with the interests of progressive jurists and legal scholars working to protect race-conscious constitutionalism. To do so, this Essay provides a qualitative empirical study identifying converging interests in the SFFA dissenting opinions, the legal scholarship criticizing the SFFA opinion, and the grassroots student campaigns demanding race-conscious laws in the wake of SFFA. The Essay introduces the concept of “crisis convergence” to describe the common interests and values at the intersection of constitutional change, racial justice, and education. Crisis convergence builds on critical race theorist Derrick Bell’s concept of interest convergence and divergence—the idea that Black communities win constitutional change, particularly in the realm of education, only when their interests converge with those of their privileged, white counterparts. This concept helps explain why mobilized students of color and progressive legal scholars should leverage their common ground to develop a race-conscious, rebellious constitutionalism to turn the tides of conservative backlash. The Essay concludes that some of the largest constituencies of mobilized students share a broad convergence point with the SFFA dissent on the pursuit of the self-determination of racially isolated students of color, but also that those same students diverge from progressive scholars on belonging as a race-conscious end. Both the convergence and divergence present helpful insights for progressive scholars to begin to co-construct progressive constitutional theory with broad-based support from impacted students and progressive jurists

The Healing Power of Antitrust

Millions of Americans live in hospital deserts—communities where people lack geographic access to hospitals and primary care physicians. People living in these deserts often miss doctor appointments, delay necessary care, and stop adhering to their treatment. In this way, hospital deserts exacerbate the health disparities plaguing America. This Article demonstrates that hospital deserts are not inevitable but the result of several business strategies—including noncompete agreements and merging with competitors—and antitrust enforcers’ unwillingness to recognize these harmful practices as antitrust violations. To cure the issue of hospital deserts, this Article makes three proposals. First, antitrust enforcers and the courts should expand their merger analyses to include hospital mergers’ impact on labor markets. Second, enforcers should treat all noncompete agreements in the healthcare sector as per se illegal. Third, they should accept mergers in rural areas only under the condition that the merged entity will not shut down facilities or cut healthcare services so as to create a hospital desert. By implementing these proposals, antitrust enforcers and the courts can help mitigate the racial and health inequities that currently undermine the social, moral, and economic fabric of America

Hindsight Is 20/20: Epilepsy Is Not One-Size-Fits-All

For many, epilepsy is one of the first conditions that come to mind when thinking of a disability, and for good reason: over 50 million people in the world live with epilepsy. Yet misunderstandings about epilepsy have perpetuated social stigma surrounding the disability for centuries. Ableist beliefs led to the passage of laws in the 1900s condoning—and in some cases, requiring—sterilization of individuals with epilepsy and restriction of their right to marry. Even today, state driving laws, justified as promoting public safety, categorically prevent anyone diagnosed with epilepsy from driving unless they are seizure free for an arbitrary, nonuniform period of time. Congress intended the Americans with Disabilities Act of 1990 (ADA) and the subsequent ADA Amendments Act of 2008 to remedy institutionalized ableism, including in the workplace. Decades later, these laws have failed. Despite the clear legislative intent to provide broad protection for people with disabilities, courts have succumbed to the unrelenting stigma surrounding disabilities, and their decisions have been driven by fundamental misunderstandings of the disabilities they are considering. Courts have repeatedly failed to conduct an individualized assessment, as required under the ADA, to determine what an employee with epilepsy can or cannot do. Instead, they treat people with epilepsy as a single, homogeneous group without any consideration of each individual’s unique circumstances—circumstances shaped by the type of epilepsy an individual has, the type of seizures they suffer, and the way their epilepsy manifests. Courts’ treatment of people with epilepsy contrasts starkly with their treatment of people with visual impairments. Where courts understand that visual impairments exist on a spectrum, they fail to recognize that the same is true of epilepsy. This Note argues that courts must view epilepsy on a spectrum and conduct a proper, individualized assessment under the ADA to ensure that employers do not categorically exclude individuals with epilepsy. This Note also calls for courts to conduct an individualized assessment when employers raise the “direct threat” affirmative defense to justify such exclusion. Understanding that epilepsy affects each person differently will help dispel negative stereotypes and better ensure adequate protection for those with epilepsy. After all, epilepsy is not one-size-fits-all