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Volume 118 - Issue 6


Racial Targets

Atinuke O. Adediran | April 14, 2024

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race relations have become polarized and the conservative, pro-business U.S. Supreme Court may weigh in on the legality of voluntary goals set by some of the largest companies in the country. Large companies have historically been granted discretion to choose their strategies for paving the way toward equal employment opportunity for people of color. The Article grapples with whether this corporate-discretion ideal would inform the legal posture of racial targets.

The Promise and Perils of Tech Whistleblowing

Hannah Bloch-Wehba | April 14, 2024

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete control over corporate information, shielding their activities from oversight and scrutiny by regulators and the public. Secrecy, however, begets leaks, and leaks have become the de facto source of crucial information for lawmakers, regulators, and the public. Today, whistleblowing is an important part of broader efforts to bring accountability and transparency to the tech industry.

Yet existing frameworks for protecting whistleblowers are partial and haphazard. The law often permits firms to retaliate against internal critics, leakers, and organizers. The result is an informational environment shaped by selective disclosures on the part of tech whistleblowers and enormous discretion for tech firms that can choose whether and how to respond. Whistleblowing is therefore an incomplete, but still significant, source of information in the absence of meaningful, rigorous, and systematic transparency rules. In this Article, I make the case that broader protections for whistleblowing are a necessary component of systemic regulation of the tech sector.

Partisanship Creep

Katherine Shaw | April 14, 2024

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton Act have dramatically limited the role of partisanship in federal employment decisions. Since 1939, the Hatch Act has reflected a related constitutional principle: just as most federal workers should not be selected or terminated on the basis of partisanship, neither should they be permitted to use their positions, once attained, for partisan pursuits. Executive Branch law and practice have long reflected a similar set of principles in the employment realm and beyond. The Supreme Court has also enforced a nonpartisanship principle across a range of cases, including the political patronage cases, in which the Court has announced and elaborated a constitutional requirement that most local government hiring, firing, and other employment decisions be made independent of partisanship.

But these settled understandings, across institutions and bodies of law and practice, have come under attack in recent years. Over the course of his term in office, President Donald Trump grew increasingly willing to challenge nonpartisanship principles directly, culminating in his issuance of an executive order that would have given him the authority to reclassify large swaths of the federal workforce as outside of the civil service—an effort he has pledged to revive if given the chance. In perhaps less obvious ways, the nonpartisanship principle has been undermined by recent decisions of the Roberts Court. Across a range of cases—involving gerrymandering, public corruption, campaign finance, and manipulation or abuse of the political process—the Court has begun to evince a degree of sympathy for partisan political motives, either holding or at least suggesting that the Court is limited in its ability to prevent government officials from pursuing partisan ends. At the same time, the Court has increasingly emphasized the importance of presidential control over Executive Branch actors, a growing body of law that may represent yet another threat to long-standing principles of government nonpartisanship.

Upending the long-standing constitutional settlement in favor of nonpartisanship could have dramatic consequences for both constitutional theory and constitutional practice—and could radically change the face of American governance.

Notes and Comments

Preliminary Injunctions Prevail Through the Winter of Buckhannon

Kaitlan Donahue | April 14, 2024

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may face a choice between accepting or denying an otherwise successful case solely due to a prospective client’s ability to pay. In Sole v. Wyner, the Supreme Court held that a plaintiff who is awarded a preliminary injunction is not considered a prevailing party if “the merits of the case are ultimately decided against her.” In deciding Sole, the Court declined to answer a separate but important question: Is a plaintiff a prevailing party if their case is mooted after obtaining a preliminary injunction?

Courts attempting to answer this question struggle to find tangible guidance from the Supreme Court following its decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, resulting in inconsistencies, overly complicated analyses, and in some cases, misguided rejection of prevailing party status. The legal analysis behind prevailing party status must be streamlined to preserve this critical and necessary litigation. This Note explores how, in the aftermath of Winter v. Natural Resources Defense Council, Inc., a plaintiff whose case is mooted after obtaining a preliminary injunction is a prevailing party within the framework of Buckhannon.

Silent Today, Conversant Tomorrow: Education Adequacy as a Political Question

Yeju Hwang | April 14, 2024

When the Supreme Court declined to recognize the right to education as one fundamental to liberty, and thus unprotected by the U.S. Constitution, state courts took on the mantle as the next best fora for those yearning for judicial review of inequities present in American public schools. The explicit inclusion of the right to education in each state’s constitution carried the torch of optimism into the late twentieth century. Despite half a century of litigation in the states, the condition of the nation’s public school system remains troubling and perhaps increasingly falls short of expectations. Less competitive on an international level, producing historic declines in knowledge, and exhibiting growing gaps between high- and low-performing students, public schools are crying out for help.

But in some states, these cries go largely ignored. Legislators overpromise and underdeliver, while some judges throw their hands up in deliberate defeat, excusing themselves of the judicial duty of interpreting their state’s constitution. Why? To state courts, the very nature of this litigation is a “political question.” This Note examines different approaches that state courts employ in education adequacy litigation, endorses the active participation model as the “best approach,” and uses the recent case William Penn School District v. Pennsylvania Department of Education as a lesson to showcase the internal absurdity underlying state judges’ use of the political question doctrine in this area. In evaluating how state courts use this device or reject it entirely, this Note argues against the propriety of the political question doctrine and points out the doubly offensive nature of its inconsistent use.

The Impossibility of Corporate Political Ideology: Upholding SEC Climate Disclosures Against Compelled Commercial Speech Challenges

Erin Murphy | April 14, 2024

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the First Amendment” to evade government regulation.

The threshold question—whether certain types of speech such as securities regulations implicate the First Amendment—is rarely addressed by the Court and has never been affirmatively decided. Historically, commercial speech (expression by a corporation about an economic transaction) receives lower levels of protection relative to political or individual speech. The Court has held that compelled commercial disclosures of a factual and uncontroversial nature required only rational basis review. The Court, however, has never ruled on protections for corporations when the compelled speech is potentially of a political, rather than purely factual, nature and has continually avoided this question with narrow holdings and carved out exceptions. A First Amendment challenge to climate disclosures would force them to confront it directly.

If the challenges to the SEC climate disclosures reach the Court, it will need to consider its precedents in both commercial and compelled speech cases and incorporate the most applicable First Amendment theory. This Note argues that the compelled speech doctrine is the appropriate First Amendment analysis in deciding whether a corporation can be forced to speak and add more speech to the marketplace. By relying upon compelled speech doctrine and addressing the unnatural fit between speaker rights and corporate law, this Note ultimately concludes that corporations do not have personal First Amendment rights, and, as a result, climate regulations should only be subject to rational basis review.

Toward Accessing HIV-Preventative Medication in Prisons

Scott Shimizu | April 14, 2024

The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.

This Note draws on previous scholarship on cruel and unusual punishment and proposes a novel method for bringing an Eighth Amendment claim. This claim centers on advocating for access to preventative HIV medication in the form of a daily pill known as PrEP, utilizing a model litigant to ground the constitutional analysis and anticipate potential pitfalls. Through this novel claim, the Note joins the global movement to end the spread of HIV by protecting incarcerated communities from contracting the virus during their sentences.