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The novel coronavirus COVID-19 has rapidly become one of the worst public health crises in U.S. history. Yet this is not only a critical moment for health, but also for privacy. With social isolation orders in forty-two states, as well as Washington, D.C., Puerto Rico, and Guam, collaborative technological services—such as such as video conferencing, file sharing, mobile apps, and video games—have taken an even more preeminent role in our social and work lives. The increasing importance of these technologies represents the equally increasing power these services have over our privacy, both at work and at home. Sensitive corporate information, facts about individuals’ well-being, and personal conversations between loved ones are being communicated via these platforms in greater quantities than ever before. Proper privacy protections have never been more important for U.S. citizens, yet federal data privacy law remains a patchwork of sector-specific laws that fail to cover large swaths of entities that process personal information. Instead, it is largely left to states to adopt consumer privacy laws, of which California was the first with its California Consumer Privacy Act (CCPA) having taken effect in January 2020.

The sole consumer privacy act in the United States, the CCPA is now the primary shield against poor data processing practices from online collaborative platforms, foremost among them Zoom Video (Zoom). Zoom’s soaring popularity led to greater scrutiny of its data processing and security practices, with the findings ranging from sending personal information to Facebook to allowing uninvited attendees to break into private calls, a practice known as “Zoom-bombing.” Just a month after the first CCPA case ever was filed, on March 30, 2020, a class action suit against Zoom was brought before the U.S. District Court for the Northern District of California. The class action complaint alleges that Zoom violated the CCPA by failing to provide consumers with adequate notice of personal information processing practices and by failing to implement reasonable security measures to prevent the unauthorized disclosure of non-encrypted personal information. The CCPA explicitly requires entities collecting consumers’ personal information to fully disclose the collection of such information and how it will be used, including with which third parties it is shared. Businesses processing personal data also must implement and maintain reasonable security measures to prevent the inadvertent disclosure of such information. Therefore, the CCPA would seem to be a promising constraint on poor data protection practices, both in the conscious use of data as well as maintaining insufficient protection practices.

These rights are standard for data protection regimes around the world and are part and parcel of the comprehensive data protection in the European Union, the General Data Protection Regulation. Yet the CCPA is still untested in court and such protections are new to the U.S. legal regime. The courts’ early interpretation of key terms such as “disclosure” and “reasonable security measures” will be critical. The Northern District of California’s ruling in this case, or settlement negotiations between the class and Zoom, will be of the utmost importance for future CCPA litigation and reigning in poor consumer data privacy practices. Although the CCPA only protects California residents, the interstate nature of the Internet would likely cause data processing entities to conform to the highest data privacy standard in the United States. Given the vastly increased use of data-collecting online platforms due to COVID-19 stay-at-home orders, an enormous amount of personal data is on the line. Since California is currently the only state with a comprehensive consumer privacy act, the outcome of the Zoom litigation is particularly acute: if the CCPA proves to be a paper tiger, United States residents will be left nearly defenseless, with only a patchwork of federal and state laws to provide data protection.

Michael P. Goodyear is a graduating 3L at the University of Michigan Law School, where he is the editor-in-chief of the Michigan Technology Law Review. His previous and upcoming law journal articles can be found on his SSRN site here. After graduation, Michael will work as a litigation associate at a large law firm in New York.

The current COVID-19 public health crisis has rendered the nation’s jails and prisons ticking time bombs. In the confined spaces of the carceral system the infection flourishes. At Rikers Island in New York City the rate of infection among the incarcerated population is an estimated seven times that of the free population. The Cook County Jail in Chicago boasts the highest infection rate in the country. Inmates post desperate pleas for help on their cell windows: “Help we matter2.” In other jurisdictions, the lack of testing renders rates of infection a frightening and unknowable quantity.

Even before the current health crisis, overcrowding, lack of medical care, close and shared quarters, poor air circulation, and chronic understaffing made jails and prisons the perfect environment for contagions. The rapid spread of infection should come as no surprise given a population composed of increasingly older and medically compromised individuals and policies that render hand sanitizer contraband and require marginalized inmates to pay for medical care and personal hygiene supplies.

As the nation’s jails and prisons devolve into viral epicenters and the criminal justice system struggles to respond, a stark reality emerges. Any period of detention, for any reason, can be a sentence to a slow and painful death by COVID-19. In a system characterized by high incidence of detention­—the current incarcerated population numbers 2.3 million people in the United States—and high rates of infection, the death toll among inmates could be staggering, to say nothing of the guards and medical professionals and their families who are put at risk as the infection spreads.

This reality is, in and of itself, alarming. But it is rendered more troubling by the fact that a disproportionate number in that population are held as pretrial detainees who have never been convicted of a crime but nonetheless languish in county jails across the country. They remain detained because they are too poor to make bail or have nowhere else to go. They are in jail because they have been arrested, accused of a crime, and are too marginal to gain their freedom in a system that was stacked against them from the start. We as a nation face the very real prospect that by failing to act in the face of this crisis, we are sentencing these men and women in our jails to infection and death without mercy, process, or conviction. We are sentencing them to die either because we fear their release, or because we are more indifferent to their welfare than we value their lives.

From a humanitarian and public health standpoint, the way forward is clear: releasing inmates will save not only lives but valuable medical resources by reducing infection rates. While some jurisdictions resort to lockdowns in an attempt to curb the spread of the virus, others across the nation have begun to release inmates who are close to the end of their sentences or who pose a low risk pretrial. Such releases are important first steps, but they are too timid and too few. Even in the face of such release policies, jail and prison populations remain high, as does the risk of mass infection. In this time of crisis and beyond, we as a nation need to have real and meaningful discussion about reforming a carceral system that is plagued with problems in the best of times and is broken and cruel in these, the worst of times.

I discuss these interesting issues and more in my forthcoming article with Northwestern Law Review Online, Pretrial Detention in the Time of COVID-19.

Jenny E. Carroll is a former public defender and the current Wiggins, Child, Quinn and Pantazis Professor of Law at the University of Alabama School of Law. Her work has appeared in numerous law journals, it can also be found on her SSRN site here.

On December 10, 2019, an Illinois Appellate Court, in a notable Chicago Police torture case, affirmed Cook County Judge William H. Hooks’s decision granting Jackie Wilson a new trial, finding that his 1982 confession was a result of torture by Lieutenant Jon Burge and his detectives. People v. Jackie Wilson, 2019 IL App (1st) 181486.

As I approached the courthouse at 26th and California, I saw at least a dozen police cars parked in the area. Going up in the elevator, I pictured a courtroom packed with armed FOP [Fraternal Order of Police] members, so I decided to ask the judge to order the cops to check their weapons. As I waded through the overflow crowd of hostile officers, I saw that Judge Hooks had beaten me to the punch—a handwritten order was tacked on the courtroom door, mandating that all arms be checked on the first floor.

Sammy Lacey, who was to be our first witness, told my co-counsel (John Stainthorp and Elliot Slosar) and me outside the courtroom that he feared for his family and was not going to testify. It was one thing to testify against Jon Burge, he said, but quite another to testify on behalf of convicted cop killer, Jackie Wilson. We cajoled Sammy, then invoked the power of the subpoena, and he reluctantly walked down the aisle to take the witness stand. With some prodding, he told the judge about Burge’s “asskickers,” the racism that permeated Area 2 under Burge’s command, and how he heard screaming coming from the second floor of Area 2 on the morning of February 14, 1982. The judge was most attentive and seemed to take offense when Special Prosecutor O’Rourke objected to Sammy’s testimony about the racial make-up of the “asskickers”:

Mr. O’Rourke: The racial background. That’s irrelevant, judge . . .

Judge Hooks: You are saying that the racial makeup of the particular unit that has caused us all to be here is not relevant? Overruled counsel, please, overruled.

After he completed his testimony, Sammy stepped down and motioned the courtroom bailiff to escort him through the Fraternal Order of Police gauntlet to the elevator. The FOP audience left shortly thereafter. Despite our repeated pleas, Doris Byrd had previously told us in no uncertain terms that she did not intend to get involved again and would not honor our subpoena. The former sergeant’s prior testimony was read by Christian Snow, a student intern we would later hire as an associate, including Byrd’s saying that torture was an “open secret” at Area 2 under Burge, with the black box “running rampant.” We followed this testimony with the videos of Burge and Detective McKenna taking the Fifth.

Next, Jackie was cross-examined by O’Rourke. The Sun Times headlined its article, over a picture of Jackie in his striped prison garb, “Burge and Nemesis Flint Taylor Spar in Video Depositions in Jackie Wilson Case,” and summarized Jackie’s cross-examination:

Wiping his eyes, Wilson, 57, took issue with Special Prosecutor Michael O’Rourke skipping steps in Wilson’s account of the abuse when O’Rourke jumped from Wilson being clubbed with a phone book directly to being hooked up to an electroshock box. “They beat me over the head with dictionaries, a telephone book, put guns in my mouth. Then they brought in the electric shock,” Wilson said, his face pained. “It’s just upsetting, judge, I’m reliving things.”

Chicago Sun Times

The special prosecutors’ approach, in their case, was to return to 1982, before the evidence of systemic torture had come to light, ignoring that unrebuttable evidence and mercilessly attacking Jackie as a liar. Since almost all their witnesses were either on the Fifth Amendment or had been previously found to be perjurers, they focused on two perceived weaknesses in Jackie’s story: that in his 1982 motion to suppress testimony he had not mentioned that he was electric shocked, or that Burge was involved in his torture. To emphasize these points, they called Jackie’s 1982 trial attorney, Richard Kling, to the stand in an effort to demonstrate that Jackie had never told him these important facts. I drew the assignment of cross-examining Kling, and my task was made much easier when he professed to have no specific recollection of what Jackie did or did not tell him in 1982. Kling became our witness when I elicited that he had included all the other aspects of Jackie’s torture in his written motion, and that when Kling had interviewed Donald White almost twenty years later, Donald said he had recently been visited by Detective McKenna and threatened.

The special prosecutors’ only other live witness was Michael Hartnett, the court reporter who had taken Jackie and Andrew’s confessions in 1982. On direct examination, he told of a compliant and cooperative Jackie, who showed no visible injuries and voluntarily smiled for his photo after giving his statement. Elliot quickly exposed Hartnett on cross-examination.

Hartnett was not an independent court reporter but worked for the State’s Attorney’s Office. He was friendly with Burge and his lawyer, was surprised that Burge and his men had not killed Andrew and Jackie, and “did not give a damn” about what the police did to Jackie prior to obtaining his statement. ASA Larry Hyman had not asked Jackie or Andrew if they had been abused or coerced, which was a highly unusual omission, but Hartnett did not mention this failure to Hyman. In the past, Hartnett had recorded statements from bloodied suspects but did not consider it his job to do anything about it, so he remained mum. This was the case with Andrew, whom Hartnett observed with facial injuries when taking his statement. And, as important, Hartnett was not present when Jackie and Andrew were interrogated. By the time Elliot finished, Hartnett had been exposed as a hopelessly biased and uncaring participant in the cover-up of Jackie’s and Andrew’s torture.

The final day of evidence was February 16, 2018. Bill Hampton, the brother of assassinated Black Panther leader Fred Hampton, had died the week before, and the judge excused me for a few hours to speak at Bill’s funeral. Fred’s entire nuclear family was now gone, as his mother, Iberia, had died in the fall of 2016 and his sister, Dolores, in the summer of 2017. Before I left, I re-raised an issue that had loomed throughout the hearing: the special prosecutors’ close connection to Burge, his confederates, and their lawyers, in particular Andrew Hale. I pointed out that former Assistant Special Prosecutor Brian Stefanich, previously lead counsel on Jackie’s case, had jumped ship to join Hale’s firm and had filed his appearance as counsel for Burge, Byrne, and Dignan in Alonzo Smith’s civil torture case. Judge Hooks, who was a stickler for ethics and had previously ordered the special prosecutors to present their monthly bills for attorneys’ fees for his approval, was disturbed by this revelation. As the Tribune described it:

O’Rourke defended Stefanich’s move, saying he believed that “the interests” of the special prosecutors and the defendants in the lawsuit “are aligned.” That drew a murmur from spectators in the courtroom, and Hooks raised his eyebrows and leaned back in his seat on the bench. “After hundreds of thousands of dollars of taxpayers’ [money has] been spent . . . you’re stating that convicted federal felon Jon Burge’s interests are aligned with the special prosecutors’ interest in this matter before this court?” Hooks asked.
Chicago Tribune

After O’Rourke told Judge Hooks he was talking only about the lawsuit that Stefanich joined, Hooks called Stefanich’s representation of Burge in the lawsuit “a very big complication” and sounded the same theme he had previously articulated: “What’s special about the special state’s attorneys?” The Tribune also quoted me:

Stefanich could not be reached Friday for comment, but attorney G. Flint Taylor, who represents Wilson, later scoffed at O’Rourke’s explanation. “You can parse it in this case and that case and any way you want, but that is not the role of the special prosecutor,” he told the Tribune. “It should be to do justice. . . . They’re supposed to bring an independent eye to this.”
Chicago Tribune

Amid the furor, the special prosecutors rested their case. The highlight of our rebuttal was a passage from Andrew Wilson’s 1988 deposition that undercut the special prosecutors’ argument that Jackie’s testimony about electric shock was a “recent fabrication,” first added in 2010. The passage revealed that, according to Andrew, Jackie told him he was electric-shocked the day after the torture, while they were being held together in the courtroom bullpen. This corroborated Jackie’s testimony that he had told Andrew—and lawyer Richard Kling—shortly after the torture occurred.

We also offered transcripts from the 1982 motion to suppress hearings that showed that Burge did not testify in Jackie’s case, only in Andrew’s portion of the hearing, when Jackie was not in the courtroom, thus explaining why Jackie had not named Burge as one of his torturers. We also offered the testimony of attorney Diane Panos, who said that Burge boasted about beating the Wilson brothers (plural), and of Burge’s barroom acquaintance Kenneth Caddick, who recounted how Burge’s bartender girlfriend had turned Burge’s face red by asking him to tell how he had tortured the Wilsons, while she mimed cranking a box.

Apparently concerned about the outcome and enraged by the judge’s highly publicized denunciation of their conduct, the special prosecutors retained a high-profile lawyer, Lance Northcutt, to intervene on their behalf in an attempt to remove Judge Hooks for bias. Northcutt told the Tribune,

The cynical ploy by certain attorneys in this case to suggest improper conduct on the part of the Office of the Special Prosecutor is as offensive as it is false.
Chicago Tribune

Judge Hooks was not pleased and referred to the potential conflict that was exacerbated by former Special Prosecutor Stefanich joining Andrew Hale’s firm by saying,

That smelled really bad. . . . It becomes a suspect situation at this point, to be quite honest with you.

I told the Tribune,

These men have stretched out this case for two years. Any other case, they would have agreed to a new trial . . . they’re in bed with the Fraternal Order of Police.
Chicago Tribune

*  *  *

We drafted and filed a hundred-page statement of facts that set forth our evidence. The Sun Times described the scene at the closing arguments:

A half-dozen relatives of Fahey and O’Brien, (the slain police officers) some wearing ‘Police Lives Matter’ T-shirts, sat in the tiny gallery. Across the aisle sat Darrell Cannon, who was released from prison after his confession to a 1983 murder—obtained by Burge subordinates who shocked Cannon with a cattle prod—was thrown out by a judge a decade ago.
Chicago Sun Times

Elliot and I divided our time, with Elliot focusing on Jackie’s and Andrew’s torture, while I detailed our pattern and practice evidence. Elliot argued:

Here the vigilantes with badges broke the law, the interrogation methods they used to coerce an involuntary statement from Jackie Wilson broke the law. Jon Burge was bouncing between torture chambers like the conductor of an orchestra, but the only sounds that were coming out were screams.

The new assistant special prosecutor, formerly a prosecutor in Ireland, sounded the same tired theme of fabrication:

[Jackie’s] lying. He wants to be Andrew. He wants to have you pull the wool over your eyes and for you to believe that he is Andrew and what was perpetrated on his brother . . . was perpetrated on him as well.

In our rebuttal argument, I suggested that Richard Kling’s failure to include electric shock in Jackie’s motion to suppress might have been a legal strategy to avoid the wrath of a hostile judge, who would not be disposed to believing what, at that point, would have seemed an outlandish claim. I concluded by debunking the absurd proposition that Jackie, alone, was not tortured:

 Tony Thompson was tortured because he was shooting at police, but not Jackie Wilson? Roy Brown was tortured in the manhunt because he supposedly knew something about the killing of the police, but Jackie Wilson wasn’t? Walter Johnson supposedly knew something about the killings of police. He was tortured, but Jackie Wilson wasn’t? Donald White had a gun put in his mouth and a bag put over his head and was hung out of a window because they thought he committed the murders until they didn’t have an identification to back them up. He was tortured, but Jackie Wilson wasn’t? . . . Anthony Williams. They thought he had something to do with the crimes. He was tortured, but Jackie Wilson wasn’t? By the same men, O’Hara, McKenna, Hill, and Burge. Lamont and Walter White . . . Dwight Anthony. Derrick Martin. He was beaten and tortured, but Jackie wasn’t? And Andrew Wilson, everybody agrees that he was brutally tortured because they thought he was the shooter, but they thought that Jackie was involved too. Andrew Wilson was tortured, but Jackie wasn’t?

I have nothing further, Judge.

After another round of briefing, we gathered in Judge Hooks’s courtroom on June 14, 2018, for his reading of his decision. As we were entering the courthouse, we saw a copy of that morning’s Sun Times. The editors had devoted a full page to a letter written by William Fahey’s daughter, Erin, who was four years old when her father was killed.  The headline above a photo of Jackie read, “Alleged Torture of Jackie Wilson Doesn’t Diminish His Guilt in Cops’ Murders.” Relying on evidence from Jackie’s tortured confession and the testimony of discredited witnesses, Erin Fahey (with, we suspected, the assistance of the FOP and the special prosecutors), argued in essence that Judge Hooks should ignore the evidence of torture because Jackie was guilty:

The bottom line here is that justice in this case has already been served. To grant Wilson a third trial will only serve as an injustice to these fallen police officers, their families, the two juries that convicted him and, ultimately, to the truth.
Chicago Sun Times

In spite of the Sun Times’ apparent capitulation to the FOP and its continuing defense of police torture, we entered Judge Hooks’s courtroom convinced that this emotional eleventh-hour plea would not change his decision. The judge announced that his decision was 119 pages long and he intended to read the entire document from the bench. In the company of the portraits of Sojourner Truth, Ida B. Wells, Frederick Douglass, Dred Scott, and Thurgood Marshall gracing the courtroom walls, Judge Hooks read for almost four hours, painstakingly setting forth the factual and legal bases for his decision. Relying in large part on our evidence and analysis, he adopted verbatim 270 of our proposed factual findings. He assailed the credibility of the state’s witnesses and underscored the importance of Burge, McKenna, and Hyman asserting the Fifth Amendment. On the issue of Jackie’s credibility, he found:

Jackie’s claims and credibility are not unassailable. Ordinarily, adding an allegation as significant as police using a device to give electric shocks, when not included in an original motion to suppress, would be reason to doubt. The State labels Jackie’s addition of this allegation “a fantastic story.” Such an allegation should be fantastic story. But pattern and practice evidence shows shocking suspects was common. And each witness in a position to deny it invoked the Fifth Amendment. Those considerations take the “story” out of the realm of fiction.
Judge Hooks’s Decision

After invoking the case of the Scottsboro Boys and the importance of the right to due process of law, Judge Hooks concluded his disquisition:

So, in short, all rights matter. The rights of the good; the bad; and the ugly all count. Who is good, who is bad, and who is ugly is not the job of this Court. However, there is more than enough to surmise that what happened in the investigation and interrogation of Jackie Wilson was not good—instead, very bad and ugly. The conduct of those involved in this most serious of investigations, which involved attempting to discover and ethically prosecute the murderer or murderers of two Chicago police officers required more. Much more was required of the Chicago Police Department, the office of the Cook County State’s Attorney, our courts, the private and public defense bar and, indeed, our federal government. In this matter, as well as dozens of related cases, too many postconviction tribunals and the Torture Commission have been forced to conduct post-mortem examinations of the torture and death of nothing less than our constitution at the hands of Jon Burge and his crew. The abhorrence of basic rights of suspects by Mr. Burge and his underlings has been costly to the taxpayers, the wrongfully convicted, and worst of all, the dozens of victims and their families who have suffered untold grief—in many cases, a 30-plus year horror story.
Judge Hooks’s Decision

Judge Hooks then spoke directly to Jackie:

Use of a physically coerced confession as substantive evidence of guilt is never harmless error no matter how strong the case against a particular defendant may otherwise be. Since such a confession was used against Jackie Wilson to obtain his conviction, he is entitled to a new trial where that confession may not be used.

Based on the foregoing, the Court hereby vacates the convictions in the instant matters and grants Petitioner, Jackie Wilson’s, petition for a new trial.

IT IS SO ORDERED.
Judge Hooks’s Decision (internal quotations and citations omitted)

*  *  *

At 4 p.m. on June 22, 2018, Jackie walked arm and arm with Elliot and me out of the gates of Cook County Jail and addressed the gathering of cameras and reporters. The Tribune and Sun Times recounted Jackie’s first public words:

Being a victim of one of a number of Jon Burge’s brutalities …” he said as his voice trailed off and he sighed heavily. “Oh Lord, it’s just, it’s been a rocky ride. [I’m] happy to be a member of society again after 36 years of incarceration for a crime I didn’t commit . . . I’d just like to move forward with my life barring any further complications and I’d like to make my contribution to society.

The Sun Times front-page banner headline said it all: WILSON WALKS.

The following pieces are a part of Northwestern University Law Review Online Volume 114’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. Authors who published with NULR in the 1990s were provided with an opportunity to revisit the ideas, issues, and questions in their writings, and reflect on how those notions have withstood the test of time. In an exciting dialog with their original pieces, the authors examined how their theories have evolved, stayed the same, been challenged, or are still at issue today. Links to their posts can be found below. Thank you for reading!

Susan Bitensky · Richard Booth · Steve Friedland · John Hasnas · Harold Krent · Robert Nagel · Philip Nichols · David Nimmer · Cindy Schipani · Malinda Seymore · G. Edward White

In November, the Supreme Court will hear argument in Espinoza v. Montana Department of Revenue, in which it will decide whether states with voucher-like schemes must allow those funds to be used at religious schools. Writing for SCOTUSBlog on September 17, Jim Kelly highlighted an underappreciated aspect of this debate: that private religious schools are not the only schools with moral education on the agenda. Rather, public schools across the country have been, since the 1990s, engaging in what is now called “social-emotional learning,” or SEL. The specific form of SEL varies widely by state, school district, and even by individual school, but often includes character education and curricular and disciplinary interventions aimed at building the “core competencies” of self-awareness, self-management, social awareness, relationship skills, and responsible decision-making.

Kelly argues that this “transformation of K-12 public education from a purely academic undertaking into a holistic religious naturalist model” “raises serious First Amendment and equal protection concerns.” In other words, if the state pays for moral education in the public schools, it should also subsidize the equivalent in religious private schools. He implies that this turn in K-12 schooling stems directly from the unapologetically Protestant nature of many public schools in the late nineteenth century, when many states passed “Blaine Amendments” prohibiting public support for “sectarian” (read: Catholic) schooling.

Kelly is half right and half wrong. SEL is moralizing and constitutionally problematic, but it doesn’t justify requiring states to fund religious schooling. It is not apposite to the issues the Court must decide in Espinoza.

As I argue in my Note, The Character of Law: A Normative Critique of Social-Emotional Learning Laws, 114 Nw. U. L. Rev. 193 (2019), the push for social-emotional learning in public schools should be questioned and resisted for many reasons. Despite the significant empirical evidence showing that the development of certain social and emotional skills can enhance students’ academic and long-term outcomes, mandating SEL in schools through the mechanism of legislation is often counterproductive. Further, it infringes upon longstanding constitutional protections of parental rights and familial autonomy in child-rearing. The contemporary SEL movement is rooted in a theory of social norms mismatch between the expectations of the school environment and those of low-income families and families of color; if students can be trained in the dominant social norms of the school environment, the theory goes, they will enjoy greater success in school and, later, in the workplace.* Left unsaid are the (race- and class-based) normative assumptions behind this model, assumptions which are used to justify greater state intervention into the lives of students and families whose social behaviors are thereby problematized.

Though it’s implemented through curricular standards that formally look the same as those for reading or math, SEL is qualitatively different: a child who meets all of her state’s or district’s SEL benchmarks will become a particular kind of person, a “creature of the state” in the way she carries herself through the world, rather than a person who knows particular kinds of things. For all these reasons, SEL runs afoul of the parental rights doctrine, which holds, in essence, that the government does not get to enforce its vision of ideal parenting, preserving parents’ rights to go against the grain of the state in child-rearing absent affirmative harm.

But SEL is not religion. Rather, it’s a questionable technocratic intervention into the relationships between teachers and students and between students and their families. SEL may be an overly formalized and rationalized view of the inevitable process of personal development that takes place in any educational context, but it is not equivalent to government establishment of religion. And, therefore, the fact that a governmental entity funds SEL does not require it to fund religious schooling or else risk running afoul of the Free Exercise and Equal Protection Clauses. Indeed, the best constitutional argument against SEL—the parental rights doctrine—firmly commits moral education to the sphere of the family, and not the state. Under that analysis, the divide between church and state is even more entrenched. If the merely normative SEL is improper in the public schools, then public funding certainly shouldn’t be directed toward religious schooling.

I agree with Kelly that SEL should be questioned both from policy and from constitutional perspectives. But it’s not implicated by Blaine Amendments, and it shouldn’t affect the Court’s decision in Espinoza.

*For more discussions on contemporary social-emotional learning, see Meredith R. Aska McBride, Note, The Character of Law: A Normative Critique of Social-Emotional Learning Laws, 114 Nw. U. L. Rev. 193, 203–07 (2019). See also James P. Comer, School Power: Implications of an Intervention Project (1980); James P. Comer, What I Learned in School: Reflections on Race, Child Development, And School Reform (2009); James P. Comer, Educating Poor Minority Children, 259 SCI. AM. 1, 42 (1988).

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Walter was one of the winners.

History will not look kindly upon this Court’s ruling. Nor should it. The short of the matter is that Mr. Dred Scott has been denied his basic sense of humanity, and the Chief Justice shows zero qualms in doing so, going as far as to write:

We think [persons of African descent] are not [citizens of the United States], and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race . . . .

I think otherwise. Indeed, I know otherwise. Like it or not, ours is a nation that, at its very inception, was founded on the principle “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” When those words were written in 1776, our country was already a diverse nation, home yes to men and women of Caucasian ancestry, but also to men and women of African ancestry, to Native Americans, and to so many others. Faced with such a reality, our founding fathers still chose to use the word “all.”

I am therefore of the belief that our Constitution provides us with numerous ways to give Mr. Scott the basic sense of humanity that is being denied to him. Of them all, however, the Guarantee Clause carries the day: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” This Court has expressed its belief that questions arising under the Guarantee Clause are for Congress—not the courts—to decide.

However, if that Clause is to mean anything, if the United States truly is committed to ensuring that all states have a republican form of government, then we must rule in Mr. Scott’s favor. There will always be disagreements on the particulars of what constitutes a republican form of government. What we cannot do, and what this Court does today, is to allow for such disagreement here, when the particulars are not at stake, but when the very foundation of a republican form of government is at stake. Stripped to its very essence, a republican form of government is one in which every man and woman is treated equally, and with respect and dignity. In reference to this topic, James Madison wrote in Federalist 39 that, “[i]f we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people . . . .” There are no powers to be derived and no government to be had when some, based on their ancestry alone, are treated as “others.” All slaves, including Mr. Scott, are not “others.” They, like all those who contribute to this country’s diversity, are our brothers and sisters. I dissent.

Walter Garcia is a first-year student at Northwestern Pritzker School of Law. 

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Meher was one of the winners.

Of the cases covered in Constitutional Law tracing the expansion of federal power, none is more germane to the current national discussion on immigration and race than Fong Yue Ting v. United States. The Supreme Court decided the case four years after it upheld the Chinese Exclusion Act, which banned all immigration by Chinese individuals to the United States. Fong Yue Ting concerned the legislation’s successor, the Geary Act, which authorized executive officers to summarily deport any Chinese immigrant already present in the country who could not produce documentation of legal residence. Such documentation could only be obtained with the supporting testimony of a white witness. Fong Yue Ting and his co-plaintiffs were Chinese laborers who had maintained legal residence in the United States for over a decade, but, either refusing or unable to find a white witness to verify their presence, now faced deportation.

Fong Yue Ting argued that the Geary Act’s threat of deportation in the absence of a trial and opportunity for judicial review violated the Due Process guarantee of the Fifth Amendment. The Court rejected this contention, citing the federal government’s “absolute and un-qualified” right to deport non-citizens, regardless of their status or length of stay in the United States. Further, the Court reasoned that deportation was an administrative decision, not a criminal punishment and, as such, “the provisions of the constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application.” In other words, non-citizens in the United States live under a separate legal regime from citizens, in which constitutional guarantees are in name only.

The Court’s judgement is surprising not only in its severity, but also how it echoes many of the assertions made in the contemporary debate over immigration reform. The notion that immigrants, even those lawfully admitted in times of peace, could be deported at any time without trial or opportunity for judicial review was novel in 1893, but is an accepted reality in 2019. Fong Yue Ting was the turning point which instituted the judicial deference that has since permitted Congress and the executive branch to transform deportation into a veritable and near-unassailable regime. The decision has been tempered only slightly by subsequent cases. Facially, Fong Yue Ting and the present reality of deportation are distinguishable—the former was in response to an explicitly racist and now-repealed law. Having never been overturned, however, Fong Yue Ting remains controlling authority in questions about the federal government’s near-unchecked power over deportation.

In light of recent events, the case’s implications are especially troubling. The announced repeal of the Deferred Action for Childhood Arrivals (DACA) program raises the same question posed by Fong Yue Ting: who truly belongs in America and whose presence is merely tolerated, revocable at a moment’s notice? Like the Chinese Exclusion Act, the government action surrounding DACA disproportionately targets and affects the lives of people of color. The connection between Fong Yue Ting and DACA, however, is not merely philosophical; pending litigation involving the repeal will likely rely upon the nineteenth century decision’s holding. The Supreme Court’s labeling therein of deportation as a civil, not a criminal offense is precisely what would empower the government today to deport DACA recipients with no more due process than notice from an executive officer. Fong Yue Ting’s racist legacy lives on.

Equally powerful in Fong Yue Ting were its vigorous dissents, which raise numerous counterarguments to a hardline stance on deportation. Justice Brewer’s dissent asserted that non-citizens had a right to trial when threatened with deportation, owing to the Fifth Amendment’s use of the word “person,” in guaranteeing due process. Justice Field concurred and found deportation to be “cruel and unusual punishment.” “As to its cruelty,” he wrote, “nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all the relations of friendship, family, and business there contracted.” Express Constitutional authority would alone suffice to permit such a severe action and, “if it cannot be thus found, it does not exist.” The absolute right over deportation asserted by the majority, Justice Field contended, was the same that had permitted the expulsion of Muslims and Jews from Spain, the Huguenots from France, and the then contemporary banishment of Jews from Russia; he cautioned against sanctioning a similar, “act of barbarity.”

Justice Field predicted that unchecked federal power over deportation would, “establish a pure, simple, undisguised despotism and tyranny, with respect to foreigners resident in the country.” His prediction could not have been more prescient—the rate of deportation has ballooned from a little over 1,600 occurrences in 1893 to 340,056 occurrences by 2016. Fong Yue Ting’s sweeping grant of authority to the federal government over deportation was a landmark decision in constitutional law. Over a century later, its holding decides the fates of hundreds of thousands of immigrants, as it did those of Fong Yue Ting and his fellow laborers. The precarious existence of the non-citizen only reinforces his status as a perpetual foreigner: those, “of a different race,”—regardless of status or length of stay—“who will not assimilate with us.” The enduring relevance and influence of Fong Yue Ting demonstrates how far we still have to go with regards to diversity in the law.

Meher Babbar is a first-year student at Northwestern Pritzker School of Law. 

At Northwestern University Law Review’s Symposium on Originalism 3.0, Professor Steven Calabresi presented a paper critiquing a Thayerian approach to judicial handling of unenumerated rights. The session was moderated by Professor James Pfander, with commentary by Professor Jamal Greene of Columbia University Law School.

Professor Calabresi described James Thayer’s influential 1893 Article, The Origin and Scope of the American Doctrine of Constitutional Law, which posited that federal courts should only strike down laws that are clearly in error or are plainly irrational. Per Professor Calabresi, Thayer believed more aggressive judicial oversight had no constitutional grounding and would be bad for democracy. Courts have no business striking down a law for violating unenumerated rights. Per Thayer, the legislature defines the law and what rights are and are not protected, and a court should not use unenumerated rights to justify striking down such laws.

Professor Calabresi noted how influential this theory was, eventually partially codified as law in United States v. Carolene Products. Professor Calabresi argued that Thayerian principles guided the jurisprudence of Justices Holmes, Frankfurter, Byron White, and to a certain extent, Rehnquist, and was responsible for some of the worst decisions the Court ever handed down: Plessy v. Ferguson (upholding segregation), Debs v. United States (upholding a citizen’s imprisonment for criticizing war), Buck v. Bell (upholding the forced sterilization of a patient in a mental asylum), Korematsu v. United States (upholding the internment in concentration camps of hundreds of thousands of American citizens), Goesaert v. Cleary (upholding a law barring women from becoming bartenders), and more.  In each of these cases, Professor Calabresi argued, the Court upheld a law trampling upon citizens’ rights (usually unenumerated). Therein lay the dangers of Thayerian approaches to statutory interpretation.

Professor Calabresi offered an alternative. An originalist interpretation of the Constitution, including the meaning of the unenumerated rights protected by the Ninth Amendment, gives the Constitution its original public meaning. Courts cannot make new rights, but they especially cannot erase the rights that Americans in 1776 believed they had, which is what those previously mentioned decisions Professor Calabresi characterized as Thayerian did.  Professor Calabresi offered the Ancient Constitution, as discussed in the scholarship of John Phillip Reid, as an originalist source of unenumerated rights.

The Ancient Constitution describes a theory that England had a pre-Magna Carta constitution which, as the seventeenth century jurist Edward Coke argued, protected, among others, the right of liberty. This limited the sovereign from taking certain actions against citizens and was upheld by King Edward the Confessor. After the Norman conquest, William the Conquerer pledged to abide by Edward’s laws, but subsequent rulers strayed away from them; the Magna Carta was thus a restatement of Edward the Confessor’s laws.  Many of our nation’s founders read and were influenced by Coke’s writings, supporting the theory that not only did early Americans believe in unenumerated rights, but that the Ancient Constitution was a source for the content of these rights. Thus, unenumerated rights exist, are not inscrutable, and have ancient origins, and Courts are wrong to ignore these sources.

Professor Greene began his commentary by noting how nice it was to be able, just before a contentious election, to have a lively, civil debate, and everyone agreed. Professor Greene then moved on to the business of disagreeing.

First, Professor Greene noted that Professor Calabresi’s attack on Thayerism can be interpreted as a results-based objection, rather than an objection based in first-principles. This, Professor Greene noted, is not what is expected of a Calabresian originalist analysis.

Second, Professor Greene noted that it was not clear that the negative outcomes Professor Calabresi pointed to could be attributed to Thayerism as it is currently understood.  Modern Thayerians, Professor Greene noted, examine to which government institutions we should defer, and how much.  It’s hard to govern and it’s hard to protect rights. If pure originalism is all about rights, and pure Thayerism is all about governance, the interesting and difficult questions exist in deciding what to trade off and how.

Professor Greene made a point to note that several justices cited by Professor Calabresi were bigots, and that some of the cases discussed could be attributed not to a Thayerian view of judicial oversight, but to bigotry. Furthermore, many of the cases Professor Calabresi cited were written or joined by justices that considered themselves strict originalists. Justice Rehnquist was not a Thayerian; Korematsu cloaked itself in the language of strict scrutiny. Thus, calling these cases Thayerian runs counter to the theories of the justices deciding them.

Finally, Professor Greene criticized Professor Calabresi for inadequately drawing modern guidance from his historical analysis. Professor Calabresi’s argument, Professor Greene argued, only supports originalism abstractly, offering little guidance in resolving actual cases. Furthermore, he argued that acknowledging the existence of unenumerated rights, the importance of looking at outcomes, and the nature of intergenerational lawmaking are all good things to do but are not necessarily originalist approaches.

One audience member asked how, if the Ancient Constitution is a source of “vast unenumerated rights,” we are to discern what those rights are, since originalist thinkers seek clear sources of authority. Professor Calabresi suggested that one such source of rights are state bills of rights.

Another audience member asked whether Professor Calabresi was arguing that Thayer directly influenced the cases cited, or whether this was a critique of a generalized Thayerian approach. Professor Calabresi responded that Justices Holmes and Frankfurter were directly impacted by Thayer, but that the critique was of a generalized judicial approach.

Finally, Professor McGinnis argued that Thayer himself had originalist tendencies insofar as he believed the Constitution itself, at the time it was ratified, constrained judicial power. This, Professor McGinnis noted, is an originalist perspective.

A hush fell over the room, but tragically, the session was over time, and Professor Calabresi had no time for a public response. If any discussion of this point was subsequently had over coffee and scones, they did not reach the ears of this Law Review editor.

Professor Calabresi’s full article will be published in April 19, 2019 in the Northwestern University Law Review’s Symposium edition.

Joe Blass is a student at Northwestern Pritzker School of Law and Senior Notes Editor of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Is originalism correct? What might make it so? Grounding Originalism, a forthcoming Essay by Professors William Baude and Stephen E. Sachs, tackles these questions by moving from legal theory to legal empirics in an effort to provide a coherent story of our law.

On Friday afternoon, November 5, 2018, Professors Baude and Sachs were joined by Professor Michael Ramsey in a panel discussion about Baude and Sachs’s piece, Grounding Originalism. This panel was part of Northwestern University Law Review Symposium, Originalism 3.0, which focused on originalism’s latest scholarly developments.

As a group, the scholars at this year’s symposium explored originalism by offering new taxonomies, theories, and critiques. This panel focused on translating what is typically categorized as a legal or interpretive theory into empirically observable hypotheses. As Professor Baude explained: “One of the main goals of our paper was to redirect attention to the empirical question: what actually is the official story of our law? If it is not originalism, what is it?”

Professor Sachs, moderating, led off the panel discussion with a summary of the upcoming Essay. He explained that the Essay proceeds in three steps. First, Baude and Sachs detail why choosing a positive legal theory is justified. During the discussion, they suggested that their particular choice of H.L.A. Hart’s positivism functions as an illustration—a similar approach could be adopted for different positivist accounts without much difficulty.

Second, the authors situate a broad swath of originalist theories—generally those that embrace legal reasoning tracing back to the founding either by reference to the Constitution, to historical practice dating to the period, or to lawfully adopted changes enacted since then—within Hart’s positivism. Here, the authors argue that law is largely inferential in nature, which helps distinguish between official legal acts (for example, a judgment in a particular case) and official legal stories (i.e., official reasoning offered as a justification). The authors provide examples where official actors within the legal system may depart from the official, inferential, story of the law in order to facilitate all-too-human expediencies. Or, the authors suggest, given the deeply entangled nature of our law, official actors may remain ignorant in practice to a legal inference as a group, which explains how global departures from the official story may go unaddressed for periods of time. Ultimately, the official story consists of those rules by which the official actors within the legal system feel constrained.

Finally, the authors proceed to the third step of their project: their empirical claims. Several observations—including that judges tend to reject legal discontinuities from the founding and that there are not clear repudiations of originalism in Supreme Court case law—lead the authors to argue that what makes originalism our law is that our legal practice displays a deep commitment to the original law.

Professor Ramsay followed Professor Sachs and provided commentary. While appreciating the piece, his main inquiry focused on whether originalism encapsulated all of the official story of our law. Though he agreed that a large part of the law was empirically originalist, he suggested that there may be other portions of the official story: for example, when the Supreme Court uses nonoriginalist arguments to support legal decisions to members of the legal community who are not originalists.

Professor Baude concluded the panel’s introductory discussion by noting his appreciation for Professor Ramsay’s suggestions and describing additional avenues the paper may explore in subsequent drafts.

The panel closed with a lively discussion among the scholars in attendance. The conversation began with a colloquy focusing on the implications of choosing Hart’s positivism as a jurisprudential frame. Eventually directing their attention to the piece’s empirical focus, others explored potential difficulties in teasing apart the official story of the law from the official acts of its participants.

Professors Baude and Sachs’ full essay will be published in April 2019 in the Northwestern University Law Review.

Andrew Borrasso is a student at Northwestern Pritzker School of Law and Deputy Editor-in-Chief of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Georgetown Law’s Professor Lawrence B. Solum discussed his forthcoming article, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate,at the recent Northwestern University Law Review 2018 Symposium: Originalism 3.0. Professor William Ewald from the University of Pennsylvania provided commentary, and Northwestern Law Professor Joshua Kleinfeld moderated the panel.

Professor Solum began the discussion by sharing his inspiration for the article. While this article comprises part of a larger scholarly work in defense of originalism theory, Solum was inspired to write this article in part due to the uncertainty over what counts as “originalism.”

The goal of his metalinguistic proposal is to better frame the ongoing substantive debate between originalists and living constitutionalists about the best theory of constitutional interpretation. To this end, Solum provides conceptual definitions of “originalism” and “living constitutionalism” in the hopes of eliminating confusion about the boundaries of each theory. Solum defines “originalism” as a family of constitutional theories that affirm two principles: the Fixation Thesis (the meaning of the constitutional text is fixed at the time each provision is drafted) and the Constraint Principle (constitutional practice should be consistent with the original meaning). He then defines “living constitutionalism” as “nonoriginalist constitutional theories that affirm the view that constitutional practice can and should change in response to changing circumstances and values.”

In the interest of moving this substantive debate forward, Solum emphasized the importance of shared terminology and distinguishing domains of discourse: “If participants in the debates about originalism and living constitutionalism are talking past one another, it is difficult to identify what is really at stake in the debate, much less make progress in the clarification and resolution of the issues that are the focus of true substantive debates.”

In a lively question-and-answer session, audience members posed numerous questions related to the difficulty of defining living constitutionalism, which at a minimum encompasses twenty-two theories, and the differences between academic originalism and judicial originalism. While some of the heady theoretical debate about Thayer and Dworkin was above this second-year law student’s head, Solum’s proposal was persuasive; if academics and judges can agree on a shared set of conceptual definitions, the debate can focus on the issues that matter, namely the substantive and normative issues of which interpretation theory provides the most just outcome.

So, with this new shared conceptual framework as a starting point, which side is poised to win the great debate? That remains to be seen, but thanks to Professor Solum, we now have the conceptual vocabulary to ground the debate.

Professor Solum’s full article will be published in April 19, 2019 in the Northwestern University Law Review’s Symposium edition.

Emily McCormick is a student at Northwestern Pritzker School of Law and Symposium Editor of the Northwestern University Law Review for the 2019–2020 Editorial Board.