Festschrift Celebrating Professor Marshall Shapo

Discovering Racial Discrimination by the Police

By: Alison Siegler & William Admussen

Why Judicial Independence Fails

By: Aziz Z. Huq

Corporate Law for Good People

By: Yuval Feldman, Adi Libson & Gideon Parchomovsky

The Promise of Senior Judges

By: Marin K. Levy

Laypeople as Learners: Applying Educational Principles to Improve Juror Comprehension of Instructions

By: Max Rogers

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

Discovering Racial Discrimination by the Police

By: Siegler, Alison,Admussen, William | January 17, 2021

For decades, it was virtually impossible for a criminal defendant to challenge racial discrimination by the police or prosecutors. This was because in United States v. Armstrong, 517 U.S. 456 (1996), the Supreme Court set an insurmountable standard for obtaining discovery in support of a selective prosecution claim. Equating the roles of prosecutors and law enforcement officers, lower courts applied this same standard to claims alleging racial discrimination by the police. This high standard led courts to deny discovery and stifle potentially meritorious claims. Recently, criminal defendants have initiated a wave of challenges to “fake stash house” operations, in which federal law enforcement agencies like the ATF and the DEA approach people—overwhelmingly people of color—and induce them to rob a nonexistent drug stash house. Defense attorneys have argued that these practices constitute racially selective law enforcement and that Armstrong’s strict standard should not apply to the police. Three federal courts of appeals responded by recognizing that the differences between prosecutors and law enforcement officers merit lowering the discovery standard for defendants alleging racial discrimination by the police. This Article is the first to describe and defend this important development in equal protection jurisprudence. We argue that other courts should similarly craft a lower discovery standard.

Recognizing that federal courts hear only a fraction of race discrimination claims, this Article embraces the spirit of federalism and proposes an innovative state-level solution: a state court rule lowering the insuperable discovery standard to which most states still cling. This Article draws on a recent Washington state court rule aimed at preventing racial discrimination in jury selection to propose that state courts adopt a similar rule setting a new discovery standard for racially selective law enforcement claims. Such a rule would ensure that state-level equal protection claims are not blocked at the discovery stage, thus enabling courts to adjudicate those claims on the merits.

Why Judicial Independence Fails

By: Huq, Aziz Z | January 17, 2021

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed doctrinal interventions add up to a coherent theory of institutional autonomy. And it remains unclear how debates on judicial independence among jurists relate to debates about the same term in the larger public sphere.

This Article’s first contribution is to analyze how the Roberts Court understands the term judicial independence and how its doctrinal rules fall far short of realizing even the aspirations the Court has for that term. This case study in doctrinal specification illuminates the gap between the Justices’ own ethical aspiration toward judicial independence and its institutional realization—a gap that generates confusion, uncertainty, and opportunities for circumvention.

This Article then abstracts away from the particulars of the Roberts Court’s jurisprudence to explore the origins of this aspiration– implementation gap. To motivate this more general analysis, it first demonstrates that there is a large range of constitutional-design options for a founder seeking to create independent courts. The Framers of Article III embraced certain of these options and rejected others. Specifically, they preferred ex post to ex ante checks on political interference in the judiciary. Subsequent experience, though, has demonstrated that their choice of judicial independence’s institutional forms rested on flawed presuppositions. In particular, the Framers failed to anticipate the rise of partisanship as a motivating principle for national political action, and also the unexpectedly strong incentives that push legislatures toward vague or ambiguous statutory texts, leaving ample discretion for judges’ policy preferences. Today, it is possible to identify a range of instruments through which elected actors can achieve such unraveling. The three most important can be labeled cracking, packing, and stacking by analogy to techniques of partisan gerrymandering. This taxonomical exercise illuminates how, in practice, the jurisprudence and politics of judicial independence fall so far short of professed ethical aspirations. This exercise further points toward the possibility of a more institutionally grounded account of what plausibly can be expected in terms of federal court autonomy from the partisan currents of American political life.

Laypeople as Learners: Applying Educational Principles to Improve Juror Comprehension of Instructions

By: Rogers, Max | January 17, 2021

The U.S. Constitution enshrines the jury in a sacred space within the American judicial system. Yet there are troubling signs that, notwithstanding their best efforts, jurors struggle to fulfill their duties. In particular, substantial empirical research indicates that jurors struggle to understand and, consequently, to apply the instructions given to them by the judge just prior to deliberations. Various mechanisms have been proposed— and in some cases adopted—to improve jurors’ comprehension of instructions and the quality of the deliberations that follow. Among these are rewriting jury instructions in “plain English,” permitting jurors to take notes and ask questions of witnesses, providing jurors with interim and preliminary instructions, providing written copies of jury instructions, and adopting a bifurcated trial structure. And, indeed, many of these proposals are backed by empirical research suggesting that they improve juror decision-making. Yet none have proven to be a panacea, and much room remains for improvement. This Note builds on previous legal scholarship analogizing jurors to learners and proposes a novel set of procedural reforms based on educational research—particularly the theory of Direct Instruction—that would further improve juror comprehension and decision-making.

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 […]