Pretrial Detention in the Time of COVID-19

By: Jenny E. Carroll

Symposium October 9: The Second Amendment’s Next Chapter

The Crypto Quandary: Is Bankruptcy Ready?

By: Megan McDermott

What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause

By: Issa Kohler-Hausmann

Delaware's New Competition

By: William J. Moon

Transparency Deserts

By: Christina Koningisor

The Superfluous Fifteenth Amendment?

By: Travis Crum

Mezei’s Day in Court: Debtors’ Prisons, Substance Abuse, and the Permissiveness of Civil Detention in American Immigration Law

By: Conor McDonough

A Comprehensive Procedural Mechanism for the Poor:
Reconceptualizing the Right to In Forma Pauperis in Early Modern England

By: Annie Prossnitz

From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States

By: J. Benton Heath

In Memoriam: Justice John Paul Stevens

NULR of Note: COVID Special Coverage

The Superfluous Fifteenth Amendment?

By: Travis Crum | April 19, 2020

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights. The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both a statute and an amendment. Moderate Republicans rejected the statutory option because they believed that Congress lacked enforcement authority under the Fourteenth Amendment to impose voting qualifications on the states and that an amendment was the only politically viable option. Given this historical evidence, this Article argues that the Fifteenth Amendment was a significant expansion of congressional authority to regulate voting rights in the states and that Congress’s Fifteenth Amendment enforcement authority is distinct from—and broader under current doctrine than—its Fourteenth Amendment enforcement authority. The Article V debate offers a persuasive reason for overturning Boerne’s congruence and proportionality test or, at a minimum, cabining it to the Fourteenth Amendment. Accordingly, laws enacted under Congress’s Fifteenth Amendment enforcement authority should be reviewed under Katzenbach’s rationality standard and the Voting Rights Act (VRA) would be on firmer constitutional ground.

Delaware’s New Competition

By: William J. Moon | April 19, 2020

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law. This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector lawyers who draft legislation for these lawmakers, foreign nations enable American corporations to opt out of mandatory rules that are axiomatic features of American corporate law. This Article documents an emerging international market for corporate law that has largely been undetected by legal scholars who presuppose an interstate market. While acknowledging the potential benefits offered by foreign nations competing to attract American corporations, this Article highlights a series of countervailing considerations that render any claims about gains from international jurisdictional competition premature at best.

Transparency Deserts

By: Christina Koningisor | April 19, 2020

Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law. In contrast, scholars have paid comparatively little attention to transparency laws at the state and local level. This is surprising. The role of state and local government in the everyday lives of citizens has increased in recent decades, and many critical government functions are fulfilled by state and local entities today. Moreover, crucial sectors of the public—namely, media and advocacy organizations—rely as heavily on state public records laws as they do on FOIA to hold the government to account. Yet these state laws and their effects remain largely overlooked, creating gaps in both local government law and transparency law scholarship. This Article attempts to fill these gaps by surveying the state and local transparency regime, focusing on public records laws in particular. Drawing on hundreds of public records datasets, along with qualitative interviews, the Article demonstrates that in contrast with federal law, state transparency law introduces comparatively greater barriers to disclosure and comparatively higher burdens upon government. Further, the Article highlights the existence of “transparency deserts,” or localities in which a combination of poorly drafted transparency laws, hostile government actors, and weak local media and civil society impedes effective public oversight of government. The Article serves as a corrective to the scholarship’s current, myopic focus on federal transparency law. In doing so, it makes three central contributions. First, it provides a much-needed descriptive account of the state and local transparency regime. Second, it makes a normative contribution. It mines empirical and qualitative public records data to evaluate the costs and benefits of the current transparency regime and then applies those insights to contemporary academic and policy-oriented debates. In the process, the Article reveals that unique features of state and local government both heighten the salience of statutory transparency mechanisms and challenge dominant strands of thought in the contemporary transparency scholarship. Third, the Article has implications for ongoing public law debates, demonstrating that failures in the local transparency regime undermine certain theories of federalism.

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 […]