All Online Essays

Browse By:

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.

Author

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.

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), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1295&context=nulr_online&preview_mode=1&z=1603143580.

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.

Authors

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.

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), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1294&context=nulr_online&preview_mode=1&z=1602732122.

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.

Author

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.

Cite as: Michael A. Carrier, Don’t Die! How Biosimilar Disparagement Violates Antitrust Law, 115 Nw. U. L. Rev. Online 119 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1293&context=nulr_online&preview_mode=1&z=1602032071.

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.

Author

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

Cite as: Philip Hamburger, Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1292&context=nulr_online&preview_mode=1&z=1601481946.

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.

Author

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.

Cite as: Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, 115 Nw. U. L. Rev. Online 59 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1291&context=nulr_online&preview_mode=1&z=1596157754.

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.

Author

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.

Cite as: Megan McDermott, The Crypto Quandary: Is Bankruptcy Ready?, 115 Nw. U.L. Rev. Online 24 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1288&context=nulr_online&preview_mode=1&z=1593875445.

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.

Author

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.

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), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1287&context=nulr_online&preview_mode=1&z=1588965302.

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.

Author

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

Cite as: Daniel Harris, The New Swing Votes on the U.S. Supreme Court, 114 Nw. U.L. Rev. Online 258 (2020), https://scholarlycommons.law.northwestern.edu/cgi/editor.cgi?window=abstract&article=1286&context=nulr_online.

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.

Author

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.

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, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1285&context=nulr_online&preview_mode=1&z=1582655976.

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.

Author

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.

Cite as: Francesca Laguardia, Considering a Domestic Terrorism Statute and Its Alternatives, 114 Nw. U. L. Rev. Online 212 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1283&context=nulr_online&preview_mode=1&z=15792735007.