Articles

2022

The Case for Retaining Times v. Sullivan
By George Freeman – March 11, 2022
Justices Thomas and Gorsuch have called for revisiting the Sullivan rule, which intentionally places a high burden on public officials and public figures making a libel claim.

Times v. Sullivan, Rosenbloom, and Justice Gorsuch: Where Is SCOTUS Heading?
By George Freeman – March 11, 2022
Speculation has been rife as to whether the Supreme Court will revisit Times v. Sullivan, for 58 years the linchpin of our defamation law. What will the Court do?

Use It or Lose It: Registration Roll Purges of Voters Who Don't Vote Regularly
By Paul M. Smith – March 11, 2022
A minority of states have begun to engage in a practice that ought to be seen as glaringly unconstitutional.

Palin v. New York Times: Testing the "Actual Malice" Standard
By George Freeman – March 11, 2022
The trial gained a lot of press attention, but the real significance of Palin was as a test of whether Sullivan works.  

2021

Detroit Students Plea for Fundamental Right to Basic Literacy Dismissed as Moot
By Jordan Scull – November 8, 2021
The judiciary could guarantee that each public-school student has a substantive due process right to the basic requirement for educational success: access to resources to learn to read.

2020

Finally, Some Good News: New Support for Treating Interpersonal Violence as Actionable under Title IX
By Kimberly M. Hult and Lauren E. Groth – July 27, 2020
At least two courts and the Department of Education have concluded that cases involving dating violence fall squarely within Title IX’s reach.

Does Shackling Incarcerated Women During Childbirth Violate the Eighth Amendment?
By Nakea Barksdale – April 27, 2020
Use of restraints on pregnant women is still a common practice within the U.S. criminal justice system.

A Difficult Hurdle: FLSA Supervision in the Second Circuit
By Dustin Crawford – April 14, 2020
The court’s Hasaki opinion may impact the decisions of other courts confronted with the issue of whether Rule 68 offers of judgment require court approval.

2019

Youth Access to Mental Health Services Is an Un-Prioritized Civil Right
By Victor M. Jones – December 4, 2019
Children deserve the dignity of receiving quality services that allow them to lead healthy and productive lives in their homes and communities.

Texas Appellate Court Addresses Free Speech in Context of Anti-SLAPP Statute: Part 2
By Shain Khoshbin – October 24, 2019
How the court addressed important issues of alter ego, vicarious liability and agency, and summary of efforts to narrow scope of anti-SLAPP statutes.

The Hammond Guards and the Intersection of Race, Guns, and Patriotism
By Desni A. Scaife and Imani Robinson-McFarley – October 10, 2019
What an unknown story of African American resistance reveals about the concept of patriotism and its relation to the Second Amendment.

Advocacy Matters: the Proposed Citizenship Question on the 2020 Census
By Quyen Tu – October 7, 2019
Why has this proposed question provoked so many lawsuits and vociferous concerns of an inaccurate count from community leaders?

Texas Appellate Court Addresses Free Speech in Context of Anti-SLAPP Statute: Part 1
By Shain Khoshbin – October 1, 2019
Opinion provides good case study on impact of recent amendments to Texas anti-SLAPP statute.

Is Overstating a Commitment to Diversity a Deceptive Trade Practice?
By Carmen D. Caruso and Linda C. Chatman – July 22, 2019
Employers should be very careful in touting their accomplishments when it comes to diversity.

Trick or Treatment?
By Hayden Carlos and Cameron Pontiff – July 16, 2019
Confronting the horrific intersection of race, mental health, poverty, and incarceration in Louisiana.

The Intersection of Race and Rape Viewed through the Prism of a Modern-Day Emmett Till
By Chelsea Hale and Meghan Matt – July 16, 2019
An exploration of the historical practice of exploiting and violating the bodies of African American women with impunity and how African American defendants accused of raping white women are treated differently under the law.

Alleging Retaliation on Behalf of Students with Disabilities
By Rosa K. Hirji – July 2, 2019
Retaliation claims must be strictly alleged and meet the evidentiary standard to be successful.

Employer Liability in the #MeToo Era
By Victoria Harrison and Jack Jarret – May 29, 2019
An anti-harassment policy may not be enough.

The Persisting Gender Pay Gap: Recent Developments in the Law That Address Gender Pay Disparities
By Rebecca Sha – May 16, 2019
State laws prohibiting employers from asking prospective employees about their wage history, a pending Supreme Court case, and discrimination suits filed by women attorneys at prominent law firms.

The Shockingly Common Use of Non-Precedential Opinions in Sixth Circuit Taser Litigation
By Ahmed Bahgat – April 17, 2019
A law student’s discovery.

Civil Rights Violations in Criminal Cases: A Meaningful Remedy?
By David Schoen – March 19, 2019
There should be some consequence for outrageous misconduct that has been exposed.

Hepatitis C in Prisons: Courts Recognize Eighth Amendment Remedy for Public Health Crisis
By Nicholas Berenato – March 13, 2019
Prisoners should be encouraged by recent federal litigation.

New Maryland Gun Law: Immediate Surrender of Firearms
By Farrah Champagne – February 6, 2019
Extreme risk protective orders require strict compliance or respondents risk facing harsh penalties.

Due Process and Denaturalization
By Cassandra Burke Robertson and Irina D. Manta – January 14, 2019
Naturalized citizens risk losing their citizenship without the ability to provide any defense at all.

2018

The Dark Side of the VRBO Industry
By Kimberlee Gee – December 10, 2018
With no legal decisions made on cases of discrimination in the vacation rental by owner and peer-to-peer rental industry, only time will tell if these lodgings fully fall under “public accommodation” laws.

Employee Email and Social Media: What Is Protected Concerted Activity under the Law?
By Jennifer Holly – December 3, 2018
Employers must be careful before they discipline employees for comments they post on social media or through email streams, even when those comments contain vulgar and shocking language.

Statistics in Class Actions: Is the Computer Algorithm Era upon Us? (Part II)
By Paul G. Karlsgodt, Patrick T. Lewis, and Bonnie McNee – August 14, 2018
A discussion of the practical implications of using statistical methods in litigation.

A Guide to Implicit Bias and Explicit Views of Lawyers' Race and Gender
By Cynthia Cohen – July 31, 2018
Read this original study to test mock jurors' views of lawyers.

Legal Protections for Immigrant Youth under Threat
By Martin Gauto – June 18, 2018
The current administration has found another way to undercut the important legal protections created to ensure the fair and humane treatment of immigrant youth by our immigration system.

Revenge Porn: How Tech Lawyers Are Helping Women
By Nova I. Levant – May 2, 2018
While the effects of revenge porn vary, the majority of victims experience extremely negative consequences. Learn how litigators in the tech industry are helping fight back.

20 Years of Advocating for LGBTQ Youth in Out-of-Home Care
By M. Currey Cook and Cathren Cohen – April 17, 2018
Change has come for many of these unofficial exceptions of youth services, but full inclusion still eludes far too many.

How Much Racial Bias Is Enough to Show Racism in a Jury Verdict?
By Mark A. Flores – March 7, 2018
The Supreme Court ruled that racism could not play a role in a juror's decision to send a criminal defendant to jail or to his death.

Pay Equity Laws: Banning Salary History Questions
By Amber Rogers – February 21, 2018
By encouraging employers to determine salary based on factors other than an applicant’s past compensation, new laws across the country are targeting the gender pay gap.

Competing State and Federal Proceedings
By Cassandra Robertson – February 27, 2018
A dispute over Tennessee’s abortion law escalates to the Sixth Circuit.

Rethinking Qualified Immunity
By Lynda G. Dodd – February 7, 2018
Almost all the Roberts Court’s recent qualified-immunity opinions have protected police officers when the lower courts denied qualified immunity.

20 Years of Policy Advocacy Against Zero Tolerance: A Critical Review
By Rosa K. Hirji – January 16, 2018
Policy solutions are short-lived; instead, advocates need to respond to the attacks on the very nature of public education and the reversal of federal structures that protect civil rights.

2017

What Employers Should Know Regarding Trump's Termination of DACA
By David Gevertz – November 13, 2017
Any employer contemplating what the end of DACA means for its work force would be wise not to act too hastily.

The Department of Justice’s “Legal U-Turns”
By Cassandra Robertson – October 27, 2017
How the department has reversed its positions on appeal.

How Implicit Bias Impacts Our Children in Education
By Nicole Scialabba – October 2, 2017
More than 60 years after Brown v. Board of Education, there is still much work to be done to achieve equality.

RLUIPA and Islamic Society of Basking Ridge v. Township of Bernards: Defining and Protecting the Intersection of Property Law and Religious Freedom for All Faiths
By Steven W. Dimitt, Esq., Michael L. Knapek, Esq., and Maggie Burreson – July 31, 2017
Under RLUIPA, when a planning board interprets "church" as "Christian church" for the purposes of onsite parking requirements, strict liability applies.

How to Use Litigation to Improve Mental Health Care for Children
By Lisa Freeman – July 12, 2017
Class action litigation may be the most effective tool to force government actors to address the mental health needs of children in the child welfare and juvenile justice systems.

Closed Doors and Dead Ends: Ensuring Access to School for All Children
By Justin Deabler, Diane Lucas, and Ajay Saini – July 12, 2017
The New York State Office of the Attorney General’s school enrollment initiative serves as a model that state and local officials across the United States can use to protect immigrants’ rights.

A Constitutional Challenge to Modern Stand Your Ground Laws?
By Marvin Lim – June 6, 2017
Stand Your Ground laws could be challenged on substantive due process grounds under the Constitution.

Racial Bias and the No-Impeachment Rule
By Mark A. Flores – May 25, 2017
The Supreme Court’s uniform belief that racial bias against a criminal defendant in the jury room can inflict significant harm to the system cannot be ignored.

To Kill (Or Imprison for Life) a Juvenile: The Proper Exercise of Judicial Discretion for Sentencing a Juvenile Offender
By André M. Board – May 15, 2017
The implications of the decision in United States v. Under Seal solidifying the constitutional protections against “cruel and unusual punishments.”

Limiting Access to Emergency Contraception May Violate Constitutional Rights
By Renée Dudek – April 26, 2017
Correctional institutions should adopt legally sound and medically appropriate policies on emergency contraception, and ensure compliance with such policies.

Round Peg in a Square Hole: Implicit Bias Research and Employment Law
By Jeff Barnes and Ehsan Tabesh – April 24, 2017
Implicit bias is a fascinating social-science topic, but may have limited application to employment-discrimination law.

Arbitration and Prison Communications: The Difficulty of Challenging Excessive Fees
By Cassandra Burke Robertson – April 18, 2017
Access to affordable telecommunications services in prison is an ongoing challenge.

What Educational Benefit Must a School Provide to a Student with a Disability?
By Jamie Schulte – March 30, 2017
The Supreme Court is considering whether a merely more than de minimis educational benefit satisfies a school’s obligation to provide a free appropriate public education to students with disabilities.

What Rights Do Students Have in the Charter School Era?
By Jessica Schneider – March 30, 2017
Though charter schools are exempt from certain state laws and regulations, charter school students are entitled to the same federal protections as traditional public school students.

Why the History of Section 1983 Helps to Understand "Black Lives Matter"
By Sarah E. Ricks – March 20, 2017
The violence in American history, and its political context, gives insight into the contemporary feelings of vulnerability of young black people growing up in the United States today.

Loving v. Commonwealth: A Powerful Lesson Turns 50
By Mark A. Flores – March 6, 2017
A review of the opinions that resulted in love prevailing over bigotry is as important today as it was the day that the Supreme Court announced the Loving decision.

Stand Your Ground: Should Its Coverage Be Broadened or Is It Too Broad Already?
By David Schoen – February 21, 2017
Courts are wrestling with the application of the law.

Wilson v. Lynch: Do Medical Marijuana Users Lose Their Second Amendment Rights?
By John Pierce – February 9, 2017
According to the Ninth Circuit, the answer is yes.

LGBT Cases to Watch Out for in 2017
By Nancy C. Marcus – February 3, 2017
A number of cases with historic and legal import addressing LGBT rights are working their way through the federal courts.

2016

Proving Racial Bias During Juror Deliberations under Rule 606(b): Pena-Rodriguez v. Colorado
By Mark A. Flores – November 30, 2016
The Supreme Court just heard a case and will decide whether a juror can testify about racial animus inside the jury room during deliberations.

Implicit Bias and Clients: An Overview
By Bide Akande – November 29, 2016
Research suggests that our implicit biases can influence how effectively we represent our clients.

Criminalizing Poverty Through Fines, Fees, and Costs
By Monica Llorente – October 3, 2016
An overview of the webinar “Criminalizing Poverty: Debtor’s Prison in the 21st Century.”

Should Juveniles Be Charged as Adults in the Criminal Justice System?
By Nicole Scialabba – October 3, 2016
Results of “tough on crime” policies demonstrate that they have failed.

Roe Revitalized: The Supreme Court Sharpens "Undue Burden" Analysis
By Brandon Robb – July 15, 2016
Casey's "undue burden" standard has been enhanced, clarified, and given new energy, and the right to choose has been reaffirmed for the foreseeable future.

OFCCP Issues First Updates to Sex Discrimination Guidelines Since 1970
By David Gevertz – July 5, 2016
The updates address compensation discrimination, harassment, accommodations for pregnant workers, gender-identity bias, and family caregiving responsibilities, and more.

Making the Case to End Solitary Confinement for Juveniles
By Nicole Scialabba – June 27, 2016
Juveniles in solitary confinement are more likely to develop mental health problems.

Transgender Rights Litigation Moves Through Fourth Circuit
By Nancy C. Marcus – June 6, 2016
The issue has found footing in the Fourth Circuit, particularly in the context of the right of transgender individuals to use the facilities that correspond with their gender identities.

Supreme Court Clarifies a "Legal Twilight Zone" in Excessive Force Claims
By Sarah E. Ricks – March 23, 2016
The Court adopts objective reasonableness as the Fourteenth Amendment standard.

Are Courts Viewing Pretextual Searches and "Good-Faith" Exceptions More Skeptically?
By David Schoen – March 16, 2016
Recent cases give reason for hope.

Understanding the Equal Liberty and Intimate Association Doctrinal Underpinnings of Obergefell v. Hodges
By Nancy C. Marcus – January 13, 2016
Between Obergefell's equal liberty and intimate association doctrinal underpinnings, the case is powerful in its potential precedential force, unlocking future avenues of constitutional argument.

DOL Shifts Employee Burden in OSHA Whistleblower Cases
By Nikki McArthur – January 13, 2016
Given this stalemate at the Department of Labor, employers and employees alike are left with uncertainty until the issue is settled in the courts of appeals.

California's New E-Competence Rule
By Lisa Sherman, Benjamin Rose, and Jim Carden – January 8, 2016
Even carefully crafted legal hold and preservation letters to custodian employees are insufficient defenses where relevant evidence goes missing.

Implementing the "Interactive Process" in the ADA Context
By Wendi D. Barish – January 8, 2016
The ADA puts people to the test when it comes to determining and explaining an appropriate reasonable accommodation for a disabled employee.

2015

Supreme Court to Revisit Affirmative Action in College Admissions
By O. Andrew F. Wilson – October 22, 2015
The coming decision promises a material development in the law on race and admissions under the Fourteenth Amendment.

Social Media Developments: Employers' Access and Discovery
By David E. Gevertz – October 8, 2015
Two trends have begun to emerge that may offer employers some guidance, if not complete certainty, as to when access to an employee's account is appropriate.

Does the Second Amendment Protect Unauthorized Aliens?
By John Pierce – October 5, 2015
The Seventh Circuit makes a compelling argument in U.S. v. Meza-Rodriguez.

Challenging the No-Fly List: The Status of the Litigation after Five Years
By Cassandra Burke Robertson and Irina D. Manta – August 12, 2015
Plaintiffs continue to challenge the revised travel procedure on both substantive and procedural due process grounds.

Population Predominance in Racial Gerrymandering
By O. Andrew F. Wilson – May 11, 2015
Alabama Legislative Black Caucus v. Alabama provides the high court's latest statement on racial gerrymandering and offers new insight into the role of equal-population objectives in redistricting analysis.

Your License Plate, Your Speech?
By Genelle I. Belmas – February 9, 2015
The back of your car says a lot more than it might seem.

Civil Rights Implications Arising from Crime of "Indigence"
By David Schoen – January 7, 2015
Members of the bar must recognize the unjust nature of laws that criminalize or punish with increased severity based on one's indigent status and to take action where we find such laws.

2014

Qualified Immunity in Excessive-Force Cases Post Plumhoff
By Ashley J. Heilprin – November 11, 2014
As more cases are litigated, courts should be better able to flesh out the factors that may determine whether the conduct violates a person's constitutional and statutory rights.

Is a Judge Immune for Non-Judicial Acts? Two Federal Courts Answer Differently
By Sarah E. Ricks – Septemeber 22, 2014
The Middle District of Pennylvania and the Sixth Circuit see things differently when it comes to immunity from 42 U.S.C. § 1983 claims for damages.

Searching Cell Phones Incident to Arrest: There's an App for That—A Warrant!
By Mickey H. Osterreicher – July 21, 2014
Two recent cases prove the viability of the Fourth Amendment in the digital age.

The Courts Examine the Right to Bear Arms Beyond the Home
By Miko Tempski – May 19, 2014
The issue will remain a hotly debated and litigated question.

College Sports and Social Media: Leave Your Rights in the Locker Room?
By Frank LoMonte – April 21, 2014
Colleges do not need limitless control over their athletes' social-media lives.

Good Stop/Bad Stop (and Frisk)
By O. Andrew F. Wilson – April 14, 2014
Moving past arguments that artificially pit pragmatism against idealism.

Are English-Only Policies in the Workplace Discriminatory of National Origin?
By David E. Gevertz and Ana C. Dowell – March 13, 2014
The EEOC has taken the position that such policies have the tendency to discriminate on the basis of national origin, violating Title VII.

Supreme Court to Revisit Qualified Immunity and Pleading Standards
By Simona Grossi and Allan Ides – February 27, 2014
The Supreme Court should adopt an approach to inferences that recognizes the primary role of district courts in deciding which inferences may be sufficient to support a claim.

Lawsuit Demands an End to Assembly-Line Justice in South Georgia
By Atteeyah Hollie – February 6, 2014
A recent suit reminds us that the constitutional guarantee of effective legal representation remains illusory for many who cannot afford a lawyer.

2013

Coordinated Suits Signal Change in Human-Trafficking Litigation
By Morgen Morrissette – November 7, 2013
An unprecedented cooperative effort to address the problem of corporate-sponsored human trafficking that often evades prosecution.

The Murky Landscape of Post-Iqbal Supervisory Liability in the 7th Circuit
By Sarah E. Ricks – October 3, 2013
Is it statutory or constitutional? Is intent required?

And You Call Yourself a Journalist!?
By Jonathan Peters – September 9, 2013
A recent Fourth Circuit decision intensified the debate surrounding the new federal shield bill.

There and Back Again in Indian Country (Almost)
By Joseph J. Wiseman – August 12, 2013
Congress reauthorizes VAWA, granting tribal courts renewed criminal jurisdiction over non-Indians who commit domestic abuse in Indian Country.

Fighting "Today's Pirates": Kiobel and the Future of ATS Claims
By Morgen Morrissette – June 24, 2013
The Supreme Court's decision represents a serious missed opportunity to settle the question of whether corporations can be subject to liability under the Alien Tort Statute.

Section 1981 Litigation: Making Free Markets Free
By Carmen D. Caruso – April 23, 2013
42 U.S.C. § 1981, as amended, is a powerful statute that has historically been underused as a remedy for racial discrimination in contracting.

Article III's Injury Requirement and 2013's Most Anticipated Cases
By Danielle Y. Conley, Robert N. Haferd, and Tiffany R. Wright – February 11, 2013
Three cases with shaky foundations will go before the Supreme Court this year.

Social Services and Constitutional Rights, a Balancing Act
By Benjamin R. Picker and Jonathan C. Dunsmoor – February 11, 2013
Social-service workers must weigh their duty to protect children against their legal obligation not to commit civil-rights violations.

Windsor May Have Paved the Way for Intermediate Scrutiny of DOMA
By Caitlin Sandley and Stanford Moore – February 11, 2013
The U.S. Supreme Court seems ready to make a historic ruling.

Turning the Tables on Turnout
By Suhas Subramanyam – February 11, 2013
How Democrats neutralized and utilized restrictive voting laws in the 2012 election.

Eleventh Circuit Should Define Constitutional Use of Tasers
By Sarah E. Ricks – January 14, 2013
Police and the public need guidance on how Tasers can be used consistently with the Constitution.

Book Review: Firearms Law and the Second Amendment: Regulation, Rights, and Policy
By Bobbie K. Ross – January 2, 2013
We review the very first law-school textbook covering the Second Amendment.