Too Many to Fail: Against Community Bank Deregulation

By: Jeremy C. Kress & Matthew C. Turk

The Case Against Prosecuting Refugees

By: Evan J. Criddle

Energy Emergencies

By: Amy L. Stein

Avoiding Judicial Discipline

By: Veronica Root Martinez

A New Approach to Plaintiff Incentive Fees in Class Action Lawsuits

By: Jason Jarvis

Bostock v. Clayton County and the Problem of Bisexual Erasure

By: Nancy C. Marcus

Section 230 and the Twitter Presidency

By: Michael A. Cheah

The Roberts Court, Compelled Speech, and a Constitutional Defense of Automatic Voter Registration

By: Jacob van Leer

Immigrants and Interdependence: How the COVID-19 Pandemic Exposes the Folly of the New Public Charge Rule

By: Medha D. Makhlouf & Jasmine Sandhu

Videos From Symposium 2020: The Second Amendment’s Next Chapter

NULR of Note: COVID Special Coverage

Avoiding Judicial Discipline

By: Root Martinez, Veronica | November 15, 2020

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy. This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial misconduct are completed, even in the event that the individual is no longer serving as a judge in the circuit where the complaint has been filed. This Essay suggests two reforms. First, the adoption of customs that will refer any short-circuited investigation to the state bar and to Congress for additional inquiry. Second, the expansion of the judicial councils’ authority to investigate complaints so as to address the jurisdictional limitations that currently allow judges to circumvent attempts at judicial oversight over allegations of misconduct. The status quo that incentivizes avoiding judicial discipline must be reformed into one that allows for thorough and fair investigation of these important matters of public concern.

A New Approach to Plaintiff Incentive Fees in Class Action Lawsuits

By: Jarvis, Jason | November 15, 2020

Because modern litigation is time-intensive and expensive, a consumer has no monetary incentive to sue over a low-value claim—even when the defendant has clearly violated that consumer’s legal rights. But the defendant may have harmed many consumers in the same way, causing significant cumulative damage. By permitting the aggregation of numerous small claims, class action lawsuits provide a monetary incentive for lawyers and plaintiffs to pursue otherwise low-value suits. Often, an important part of this incentive is the “incentive fee,” an additional payment awarded to the named plaintiffs as compensation for the time they spend and risks they assume in representing the class. But such fees have the potential to create dangerous conflicts of interest—named plaintiffs may be “bought off” with a large incentive fee to give their approval to an otherwise unfair settlement. To avoid this problem, courts must review and approve requests for incentive fees. Unfortunately, courts do not adequately evaluate the dangers of incentive awards and balance these dangers against the justifications for such awards. This Note proposes a new test to better guide courts in assessing the propriety of incentive fees. Specifically, courts should look at (1) the amount of time and effort that the plaintiff expended in pursuing the litigation; (2) risks that the named plaintiff faced in bringing and advancing the litigation; and (3) evidence of conflicts of interest that might prejudice the class.

Energy Emergencies

By: Stein, Amy L | November 15, 2020

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability. This Article challenges this long-standing assumption and is skeptical of the zero-sum framework that suggests accountability and expediency cannot coexist in statutory emergency delegations. Specifically, it develops an Executive Delegations Matrix to better evaluate the different delegation options, demonstrating that accountability and expediency need not be mutually exclusive. This Article then uses emergency energy powers to test the viability of the factors favoring unilateral delegations, ultimately finding these factors unpersuasive in the energy-emergency context. Instead of the common knee-jerk reaction to unilateral presidential control over emergencies, this Article finds that Congress can often cultivate a more balanced decision-making framework by providing a greater role for expert agencies. By challenging the assumptions underlying unilateral presidential delegations for energy emergencies, this Article provides a new framework for assessing the world of unilateral presidential delegations more broadly.

Nw. U. L. Rᴇᴠ.

COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation

May 5, 2020

There has been much press coverage on the Navajo Nation’s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in responding to the pandemic, including a high population of people […]