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“Extraordinary” and “Highly Controversial”: Federal Research of Solar Geoengineering Under NEPA

Corbett, Charles R. | March 13, 2021

Congress recently instructed the National Oceanic and Atmospheric Administration (NOAA) to investigate stratospheric aerosols, materials that could be injected in the atmosphere as a means of solar climate intervention. This action has been widely interpreted as the first-ever federal research project into solar geoengineering—proposals to slightly “dim the sun” to limit the harms of climate change. This Essay argues that NOAA should use its discretion to conduct a programmatic environmental assessment under the National Environmental Policy Act (NEPA) as an initial step in governing this research program. Federal research into solar geoengineering is an extraordinary and highly controversial policy. The agency should carefully consider the environmental, social, and political impacts that may come with this undertaking. Further, the public deserves an opportunity to weigh in on the matter and to be apprised of its potential benefits and risks. NEPA provides a rigorous framework for doing just that.


Emmett Climate Engineering Fellow in Environmental Law and Policy, Emmett Institute, UCLA School of Law 2019–2021. My thanks to Holly Buck, Leilani Doktor, Sean Hecht, Ted Parson, Jesse Reynolds, Shuchi Talati, and Daniele Visioni for their comments and assistance. This Essay builds on an analysis published in a blog post on Legal Planet in February 2020.

Copyright 2021 by Charles R. Corbett

Cite as: Charles R. Corbett, “Extraordinary” and “Highly Controversial”: Federal Research of Solar Geoengineering Under NEPA, 115 Nw. U. L. Rev. Online 240 (2021),

Bostock v. Clayton County and the Problem of Bisexual Erasure

Marcus, Nancy C. | November 1, 2020

The Supreme Court’s Bostock v. Clayton County opinion, affirming that Title VII’s sex discrimination protections extend to “gay and transgender” employees, is an opinion emphatically grounded in a textualism-based analysis. It is also an opinion that does not once mention bisexuals in its text.

The bisexual erasure in the opinion is not unusual; in the nearly quarter century leading up to Bostock, the Supreme Court has repeatedly failed to explicitly acknowledge the existence or equal rights of bisexuals. While bi erasure in Supreme Court cases is not new, in the case of Bostock, the problematic nature of omitting bisexuals from the text of the opinion takes on an additional and ironic dimension: Those seeking to apply Bostock’s holding to bisexuals must contend with a unique tension between the majority opinion’s textualism emphasis and the need to read beyond the literal text of the holding’s limited “gay and transgender” language to ensure that it applies to bisexuals as well.

Along with calling for greater bi inclusivity, this Essay offers an interpretive guide to ensuring Bostock’s precedent, textualist emphasis notwithstanding, is extended to bisexuals. While resolving such tensions, the Essay also describes how systemic bi erasure in LGBTQ rights cases beyond Bostock remains a significant problem. In doing so, it explains the reciprocal benefits of being bi-inclusive, including the role bisexuals can play in illustrating that sexual orientation discrimination is a form of sex discrimination.


Attorney in Southern California and cofounder of BiLaw, the first national organization of bisexual lawyers, law professors, and law students. I am grateful to Ezra Young for his invaluable feedback and for his own leadership and advocacy for positive and meaningful “BT” inclusion in LGBT rights advocacy.

Copyright 2020 by Nancy C. Marcus

Cite as: Nancy C. Marcus, Bostock v. Clayton County and the Problem of Bisexual Erasure, 115 Nw. U. L. Rev. Online 223 (2020),

Section 230 and the Twitter Presidency

Cheah, Michael A. | October 30, 2020

In response to Twitter’s decision to label one of the President’s tweets misleading, the Trump White House issued an executive order to limit the scope of Section 230 of the Communications Decency Act via agency rulemaking. In the Order, Trump calls for the Federal Communications Commission (FCC) to “interpret” Section 230 in a manner that curtails websites’ ability to remove and restrict user speech. This Essay analyzes the Order and concludes that the President’s effort to limit Section 230 will fail. First, the FCC does not have rulemaking authority to issue the proposed rules. Second, the proposed rules cannot be issued because they are inconsistent with the statute. Finally, this Essay will discuss the policy implications of the proposed rules and argue that they would lead to less speech and engagement on the Internet, not more of it.


General Counsel of Vimeo, Inc. and adjunct faculty at the University of Miami School of Law. A big thank you to my colleague Erika Barros Sierra Cordera at Vimeo for help in researching and editing, Professor Caroline Mala Corbin at the University of Miami School of Law for her excellent feedback, and the Northwestern University Law Review for their diligent and timely work in shepherding this Essay to publication.

Copyright 2020 by Michael A. Cheah

Cite as: Michael A. Cheah, Section 230 and the Twitter Presidency, 115 Nw. U. L. Rev. Online 192 (2020),


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

van Leer, Jacob | October 19, 2020

In August 2019, then-Chairwoman of the U.S. Election Assistance Commission publicly argued that automatic voter registration (AVR) is a form of compelled political speech that violates the First Amendment. This Essay undergoes the worthwhile, and as of yet unperformed, task of evaluating a hypothetical First Amendment challenge to AVR. In considering the merits of such a challenge, this Essay examines how the Roberts Court’s recent First Amendment jurisprudence might complicate this analysis by undermining the traditional frameworks used to evaluate incidental First Amendment harms caused by otherwise permissible election regulations.


J.D., Yale Law School ’20. I am grateful to Francesca Procaccini, Robert Post, and Floyd Abrams for their generous feedback. Special thanks to Samantha Greenky and the editors of the Northwestern University Law Review for their diligent work.

Copyright 2020 by Jacob van Leer

Cite as: Jacob van Leer, The Roberts Court, Compelled Speech, and a Constitutional Defense of Automatic Voter Registration, 115 Nw. U. L. Rev. Online 169 (2020),

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

Makhlouf, Medha D. & Sandhu, Jasmine | October 14, 2020

On February 24, 2020, just as the Trump Administration began taking significant action to prepare for an outbreak of COVID-19 in the United States, it also began implementing its new public charge rule. Public charge is an immigration law that restricts the admission of certain noncitizens based on the likelihood that they will become dependent on the government for support. A major effect of the new rule is to chill noncitizens from enrolling in public benefits, including Medicaid, out of fear of negative immigration consequences. These chilling effects have persisted during the pandemic. When noncitizens are afraid to (1) seek treatment or testing for COVID-19 or (2) access public benefits in order to comply with stay-at- home guidance, it impedes efforts to slow the spread of COVID-19, contributing to the strain on the health care system.

This Essay describes how the pandemic has exposed the folly of the public charge rule: Discouraging noncitizens from accessing public benefits to support their health and well- being is, and always has been, unwise from a public health perspective. The pandemic merely magnifies the negative consequences of this policy.
This Essay contributes to scholarly conversations about how immigration law and policy have framed the United States’ response to the COVID-19 pandemic. Specifically, it provides an in-depth analysis of the negative public health consequences of the new public charge rule during the pandemic.


Medha D. Makhlouf is an Assistant Professor and Director of the Medical-Legal Partnership Clinic at Penn State Dickinson Law, and an Assistant Professor in the Department of Public Health Sciences at Penn State College of Medicine. Jasmine Sandhu received her J.D. from Penn State Dickinson Law, where she worked as a Student Attorney at the Medical-Legal Partnership Clinic. She has a B.S. in Community and Regional Development from University of California, Davis. The authors are grateful to Christian Sweger for his excellent research assistance and to the staff of the Northwestern University Law Review for their incisive editing.

Copyright 2020 by Medha D. Makhlouf & Jasmine Sandhu

Cite as: Medha D. Makhlouf & Jasmine Sandhu, Immigrants and Interdependence: How the COVID-19 Pandemic Exposes the Folly of the New Public Charge Rule, 115 Nw. U. L. Rev. Online 146 (2020),

Don’t Die! How Biosimilar Disparagement Violates Antitrust Law

Carrier, Michael A. | October 6, 2020

Competition is the key to low prices in the pharmaceutical industry. For decades, Americans have benefitted from affordable generic versions of brand-name drugs. But now, we stand poised on the wave of a revolution. Biologics, which include lifesaving, cancer-treating drugs, can cost hundreds of thousands of dollars per year and are forecast to be the “fastest growing segment of drug spending” in coming years.

The hope, then, is that just like generic drugs, competition from follow-on products known as biosimilars will lower prices. But the fear is that they will not. Why? One main reason is disparagement.

Biosimilars are nearly the same as biologics. In fact, they are required to be “highly similar” to, and have “no clinically meaningful differences” from, biologics. Despite this, biologic manufacturers have raised ominous warnings that biosimilars are not the same as biologics but have differences that pose grave safety consequences. Doctors are getting the message loud and clear and are refusing to prescribe appropriate—and more affordable—biosimilars. It thus comes as no surprise that government agencies have serious concerns about the behavior of biologic companies.

This Essay addresses biologic manufacturers’ disparagement of biosimilars. It sketches the background of the industry and introduces the unique regulatory setting. It then sets forth the caselaw and explains how disparagement can violate antitrust law.


Distinguished Professor, Rutgers Law School. I would like to thank Tom Cotter, Shubha Ghosh, Elizabeth Jex, Carl Minniti, and Rebecca Tushnet for their helpful comments.

Copyright 2020 by Michael A. Carrier

Cite as: Michael A. Carrier, Don’t Die! How Biosimilar Disparagement Violates Antitrust Law, 115 Nw. U. L. Rev. Online 119 (2020),

Delegating or Divesting?

Hamburger, Philip | September 30, 2020

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.


Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School, and President of the New Civil Liberties Alliance.

Copyright 2020 by Philip Hamburger

Cite as: Philip Hamburger, Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020),

Pretrial Detention in the Time of COVID-19

Carroll, Jenny E. | July 30, 2020

COVID-19 has shone a light on the preexisting flaws in the criminal justice system. This Essay focuses on one of the challenges the criminal justice system faces in light of COVID-19: that of a pretrial detention system that falls more harshly on poor and minority defendants, swells local jail populations, is fraught with bias, produces unnecessarily high rates of detention, and carries a myriad of downstream consequences, both for the accused and the community at large. Long before the first confirmed case, United States’ jails were particularly susceptible to contagions. The COVID-19 crisis exacerbates this problem creating an acute threat to the health of those in custody and those who staff our jails. The pandemic reveals that even during “ordinary times” the pretrial detention system fundamentally miscalculates public safety interests to the detriment of both detainees and the communities they leave behind. Simply put, current pretrial detention models fail to account for the risks defendants face while incarcerated and pit defendants’ interests against the very communities that depend on them.


Wiggins, Childs, Quinn & Pantazis Professor of Law, University of Alabama School of Law. Thank you to Adam Steinman, Ronald Krotoszkynski, Brandon Garrett, Lauryn Gouldin, Megan Stevenson, Jessica Eaglin, Sandy Mayson, Lee Kovarsky, Justin Murray, Benjamin Levin, Anna Roberts, Valena Beety, Thomas Frampton, Aaron Littman, Alice Ristroph, Andrew Ferguson, and Jocelyn Simonson. Thanks also to all those who participated in the inaugural Duke Law Center for Science and Justice Criminal Works in Progress meeting and the Arizona State University Sandra Day O’Connor College of Law Criminal Justice Center Workshop. Finally, this piece would not have been possible without the hard work and faith of Samantha Greenky and the diligent editing of the Northwestern University Law Review Online.

Copyright 2020 by Jenny E. Carroll

Cite as: Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, 115 Nw. U. L. Rev. Online 59 (2020),

The Crypto Quandary: Is Bankruptcy Ready?

McDermott, Megan | July 4, 2020

As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard-hit businesses will need to reorganize to adjust to new conditions, while out-of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer and business bankruptcies. Although legislative solutions may be necessary to adequately address these complications, at the very least, greater awareness of these issues will help ensure that courts and stakeholders are better prepared to address this looming crisis.


Lecturer and Honorary Fellow in the Institute for Legal Studies, University of Wisconsin School of Law. Early versions of this paper were presented at the 2019 National Business Law Scholars Conference at University of California, Berkeley School of Law and the Second International Comparative Insolvency Symposium at the University of Miami School of Law. I am grateful to my fellow panelists and attendees for their questions, comments, and suggestions.

Copyright 2020 by Megan McDermott

Cite as: Megan McDermott, The Crypto Quandary: Is Bankruptcy Ready?, 115 Nw. U.L. Rev. Online 24 (2020),

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

Kohler-Hausmann, Issa | May 8, 2020

Students for Fair Admissions (SFFA) v. Harvard—a case alleging racial discrimination against Asian applicants in undergraduate admissions on appeal to the First Circuit—is one of the most notable recent equal protection challenges to be advanced almost exclusively on the basis of statistical evidence. The case could well end affirmative action in higher education and beyond if it winds up at the Supreme Court. However, the central issue in this case is not an evidentiary question about what is probative of discrimination; it is a substantive question about what constitutes discrimination. The plaintiffs SFFA put forward a substantive definition of racial nondiscrimination—group-based conditional parity—under which equal protection is denied if applicants grouped by race do not face similar likelihood of admission conditional on having similar credentials. Neither Harvard, in defending their affirmative action practices, nor the trial judge, in ostensibly favoring Harvard’s expert findings, meaningfully countered SFFA’s definition of discrimination. This Essay argues that there is no good normative reason to accept this definition of what equal protection demands in the context of higher education admissions because it will be violated whenever groups sit in some relation of social and material inequality to each other. Furthermore, it is at odds with the Supreme Court’s line of cases allowing universities to value racial diversity and the graded scrutiny scale in the equal protection doctrine. Before to debating the content of a substantive principle of nondiscrimination/equal protection with respect to a particular form of groupness, we must first define what constitutes that form of social groupness. A relation of equality and fairness proposed by a principle of ‘nondiscrimination’ or ‘equal protection’ is only valid in light of what makes the social grouping what it is under current conditions.


Professor of Law & Sociology, Yale University. I am very grateful to Lily Hu, Moritz Hardt, Robert Post, Gideon Yaffe, Elise C. Boddie, Sharad Goel, and Josh Cohen for generous and helpful feedback, and to the editorial board of the Northwestern University Law Review for their dedicated work on the piece. A special thanks to Arjun Mody for excellent and patient RA work over the past year. And to Katie, for endless patience over countless dinners with DAGs on napkins and doctrinal debates . . . thank you and love you.

Copyright 2020 by Issa Kohler-Hausmann

Cite as: Issa Kohler-Hausmann, What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause, 115 Nw. U.L. Rev. Online 1 (2020),

The New Swing Votes on the U.S. Supreme Court

Harris, Daniel | March 20, 2020

The big surprise on the U.S. Supreme Court during the October 2018 term was how often the Court’s newest members disagreed with each other. In cases with at least one dissent, Justice Neil Gorsuch and Justice Brett Kavanaugh were on opposite sides 49% of the time. Frequently, one or the other joined with the Court’s four Democratic appointees, resulting in liberal victories in cases involving federal business regulation and federal criminal law.

There is a pattern to the disagreements between the new appointees— the two Justices have profoundly different attitudes toward the federal government. Justice Kavanaugh has a positive view of the federal government. As a result, he tends to resolve ambiguities in favor of the government and the exercise of federal power. Justice Gorsuch, on the other hand, has a skeptical attitude toward federal power. He resolves doubts against the government and the exercise of federal power. As a practical matter, this means that Justice Kavanaugh is a potential liberal ally in federal regulatory cases and Justice Gorsuch is a likely ally in federal criminal cases.


Adjunct Professor of Agency Law, Chicago-Kent College of Law.

Copyright 2020 by Daniel Harris

Cite as: Daniel Harris, The New Swing Votes on the U.S. Supreme Court, 114 Nw. U.L. Rev. Online 258 (2020),

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

Heath, J. Benton | February 25, 2020

The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine.


Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing.

Copyright 2020 by J. Benton Heath.

Cite as: J. Benton Heath, From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States, 114 Nw. U. L. Rev. Online 250,

Kafka’s Court: Seeking Law and Justice at Guantanamo Bay

Alka Pradhan | February 7, 2020

Alka Pradhan, Kafka’s Court: Seeking Law and Justice at Guantanamo Bay, in Women & Law 151 (2020) (joint publication of the top sixteen law reviews).

Considering a Domestic Terrorism Statute and Its Alternatives

Francesca Laguardia | January 17, 2020

Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of “international” as opposed to “domestic” terrorism. Public, legal, and law enforcement commenters have begun calling for a “domestic terrorism statute,” arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists. This Essay explains that the primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate right-wing organizations as “terrorists.” Law enforcement pursuing international terrorists rely on these designations and material support statutes far more than on any statutes prohibiting terrorist acts, largely because the acts prohibited are so limited that they are rarely useful, even in the international context.
But the two options of designating domestic terrorist organizations or creating a broad terrorism statute are highly problematic. This Essay discusses the barriers to prosecuting domestic terrorists as terrorists, including the problems with current terrorism statutes in responding to modern, small scale attacks and the tactics used to prosecute international terrorists. It then explores the problems with broad, generalized terrorism statutes that have been passed at the state level and drafted in Congress, and the problems with simply applying the international framework for terrorist designations to domestic terrorists. Finally, it suggests several alternative options to lessen the disparity between the handling of right-wing and other domestic terrorists, and international terrorists.


Associate Professor, Justice Studies, Montclair State University. J.D., New York University School of Law, 2007; Ph.D., New York University Institute for Law and Society, 2012.

Copyright 2020 by Francesca Laguardia

Cite as: Francesca Laguardia, Considering a Domestic Terrorism Statute and Its Alternatives, 114 Nw. U. L. Rev. Online 212 (2020),

The Common Law as Silver Slippers

Crawford, Bridget J. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Professor of Law, Elisabeth Haub School of Law at Pace University.

Copyright 2019 by Bridget J. Crawford

Cite as: Bridget J. Crawford, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 131 (2019),

The Promise and Peril of a Common Law Right to Abortion

Cohen, David S. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Professor of Law, Drexel University Kline School of Law.

Copyright 2019 by David S. Cohen

Cite as: David S. Cohen, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 140 (2019),

Women are (Allegedly) People, Too

Grossman, Joanna L. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Ellen K. Solender Endowed Chair in Women and the Law & Professor of Law, SMU Dedman School of Law.

Copyright 2019 by Joanna L. Grossman

Cite as: Joanna L. Grossman, Women are (Allegedly) People, Too, 114 Nw. U. L. Rev. Online 149 (2019),

The Common Law as a Terrain of Feminist Struggle

Choudhury, Cyra Akila | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Professor of Law, Florida International University College of Law.

Copyright 2019 by Cyra Akila Choudhury

Cite as: Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle, 114 Nw. U. L. Rev. Online 160 (2019),

Intellectual Property Infringement and the Right to Say No

Chon, Margaret | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Donald & Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law.

Copyright 2019 by Margaret Chon

Cite as: Margaret Chon, Intellectual Property Infringement and the Right to Say No, 114 Nw. U. L. Rev. Online 169 (2019),

The Female Body in the Workplace: Judges and the Common Law

Reyes, Maritza I. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Associate Professor of Law, Florida A&M University College of Law.

Copyright 2019 by Maritza I. Reyes

Cite as: Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law, 114 Nw. U. L. Rev. Online 177 (2019),