The Other Ordinary Persons

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom? This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and perspectives of marginalized and subjugated members of the American community. The second is that additional scholarly attention should be given to the moments in which jurists center and elevate the voices and perspectives of the marginalized. To that end, this essay focuses on a Fourth Circuit case in which Chief Judge Roger L. Gregory did center such perspectives: United States v. Curry

On Time, (In)equality, and Death

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition. Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of time, systemic dehumanization, and changing egalitarian norms all complicate efforts to apply traditional legal considerations to disputes about victims of subordination. While, for example, courts usually consult decedents’ expressed intentions to resolve disputes, how do we divine the wishes of people who died centuries ago, under a legal system designed to negate and dishonor their intentions? How do we honor relationships like kinship for people who were routinely and forcibly separated from their kin? And how do we assess the motives or culpability of institutions that, in prior generations, were complicit in profound horrors, but now pledge honor and respect? This Article offers a theory of time and equality to help guide cultural and legal debates about the treatment of dead victims of mass horror. On this account, we can become complicit in past, systemic subordination by dishonoring the memories of victims. Systemic neglect and exploitation of a group’s bodies and images can diminish the role of that group in shaping our national memory. And if it is wrong to deny a person the ability to leave a legacy on account of race under contemporary egalitarian norms, then we ought not engage in posthumous acts against the enslaved and other systemically debased persons that perpetually rob them of such a legacy

Formalism, Ferguson, and the Future of Qualified Immunity

This Essay explores whether formalism and accountability are compatible lodestars as we steer toward a new future for qualified immunity. Ultimately, I argue that two existing proposals would bring the doctrine closer to its text and history, mitigate against fragmentation in the law of constitutional torts, and narrow the rights-remedies gap when government officials violate the Constitution. One proposal, by John Jeffries, would create a fault-based system, where government officials and entities alike would be liable for constitutional violations that are both unreasonable and unconstitutional. Another proposal would render governmental employers’ liable for the acts of their agents

Undemocratic Restraint

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch\u27s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine. The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as matters of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy? This Article argues that recategorizing prudential rules does little to facilitate representative democracy, and in particular, constitutionalizing prudential limits raises acute democratic concerns. Constitutionalizing jurisdictional limits reduces dialogue among the branches and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle

Abstaining Equitably

The doctrine of Younger abstention—which counsels federal courts not to interrupt ongoing state criminal proceedings—balances dueling considerations. On the one hand, the doctrine preserves federal courts’ ability to exercise Congressionally conferred, properly invoked jurisdiction to prevent irreparable violations of the federal constitution. On the other, the doctrine provides space for autonomous state courts to carry out their traditional role in the realm of criminal justice. This Essay identifies four central features of the Younger doctrine that maintain this balance. By protecting these features, federal courts can ensure that Younger remains a doctrine of equitable restraint, instead of inequitable abdication. First, the Supreme Court has narrowly construed what it means to interfere with an ongoing proceeding. Not all federal legal proceedings that run parallel to a criminal proceeding should be classified as “interference.” Second, the Court does not stay its hand when an underlying proceeding fails to provide adequate opportunity to raise federal claims. Third, the Court has constructed a set of related exceptions to Younger to ensure that federal courts do not abdicate their role in abating irreparable harm. Fourth, the Court has rejected a general exhaustion requirement in Section 1983 suit, except when a trial and appeal form the same unitary process. Put differently, a federal plaintiff need not avail oneself of every available state proceeding. One has a choice of a federal or state forum. Preserving this choice is crucial to ensuring that restraint does not morph into total abdication. There is a pressing need to reaffirm these four tenets in light of recent lower court developments that have the potential to undermine the Supreme Court’s careful balance

Beyond Qualified Immunity

I never watched the video. The descriptions themselves have always felt like enough. Traumatizing enough. Invasive enough. George Floyd, father of two, laying on the ground, as an unfazed officer kneeled on his neck for at least eight minutes and forty-six seconds. He pleaded for his life and cried out to his deceased mother until he met his inevitable death. His name should be said for the record before saying almost anything else. The recording of the chilling final minutes of his life is, in all probability, one of the impetuses for this multi-journal Reckoning and Reform Symposium

Drug resistance outcomes of long-term ART with tenofovir disoproxil fumarate in the absence of virological monitoring

Objectives: The resistance profiles of patients receiving long-term ART in sub-Saharan Africa have been poorly described. This study obtained a sensitive assessment of the resistance patterns associated with long-term tenofovir-based ART in a programmatic setting where virological monitoring is yet to become part of routine care. Methods: We studied subjects who, after a median of 4.2 years of ART, replaced zidovudine or stavudine with tenofovir disoproxil fumarate while continuing lamivudine and an NNRTI. Using deep sequencing, resistance-associated mutations (RAMs) were detected in stored samples collected at tenofovir introduction (T0) and after a median of 4.0 years (T1). Results: At T0, 19/87 (21.8%) subjects showed a detectable viral load and 8/87 (9.2%) had one or more major NNRTI RAMs, whereas 82/87 (94.3%) retained full tenofovir susceptibility. At T1, 79/87 (90.8%) subjects remained on NNRTI-based ART, 5/87 (5.7%) had introduced lopinavir/ritonavir due to immunological failure, and 3/87 (3.4%) had interrupted ART. Whilst 68/87 (78.2%) subjects maintained or achieved virological suppression between T0 and T1, a detectable viral load with NNRTI RAMs at T0 predicted lack of virological suppression at T1. Each treatment interruption, usually reflecting unavailability of the dispensary, doubled the risk of T1 viraemia. Tenofovir, lamivudine and efavirenz selected for K65R, K70E/T, L74I/V and Y115F, alongside M184V and multiple NNRTI RAMs; this resistance profile was accompanied by high viral loads and low CD4 cell counts. Conclusions: Viraemia on tenofovir, lamivudine and efavirenz led to complex resistance patterns with implications for continued drug activity and risk of onward transmission

The Meigs Creek no. 9 coal bed in Ohio

The Meigs Creek no. 9 coal bed in Ohio: Part 1 - Geology and reserves, by William H. Smith, Russell A. Brant, and Fred Amos. Part 2 - Washability characteristics and other properties, by Peter O. Krumin.The location of the Meigs Creek coal deposits is shown on Map L (See following page.) As calculated in this study this bed extends in mineable thickness over 1040 square miles, and contains 3,973,331,000 tons of coal reserves. These remaining reserves in the Meigs Creek bed are believed to be the largest in any of Ohio's easily available coal deposits, except perhaps in the Pittsburgh #8 seam, The coal lies near the ~face and is easily accessible by stripping. This has caused a 400% rise in the production of coal from the seam during the past 8 years. Quality wise, the cool in the #9 seam does not compare well with other Ohio coals, so that to date its chief utilization has been in the production of electrical power, In much of the field, the seam occurs as two beds, or benches, separated by as much as 30 inches of clay parting which adds to the difficulty in mining and cleaning. This has necessitated the compilation of reserve tonnage separately for each of the benches. Part II of the report discusses laboratory investigations of methods of improving the quality of the coal by mechanical cleaning. Part I contains a discussion of the geology of the seam and gives the reserves by thickness (14 -28" , 28"-42", 42"-54", etc.) and by reliability category (proven, probable, and inferred) for each township in which mineable Meigs Creek coal occurs