Volume 2016, No. 4

PDF link Table of Contents


PDF link Living to Fight Another Day: Judicial Deferral in Defense of Democracy

By Rosalind Dixon & Samuel Issacharoff

Even many years after Marbury v. Madison, and even in the face of the spread of aggressive constitutional court review in democracies around the world, the ability of courts to assert their authority against the political branches continues to demand explanation. Especially in newly minted democracies, and most so in countries emerging from authoritarian rule, how courts can engage the misuse of state power remains a bit of a mystery. This Article examines the hitherto under-studied phenomenon of judicial deferral as providing some insight into how courts acquire the institutional capacity to engage in robust judicial review and, in particular, how the deferral of implementation avoids direct political confrontations for the judiciary.

PDF link The Five Justices of Contract Law

By Todd D. Rakoff

The pursuit of justice is a large part of the law of contracts, but in recent years most of the discussion about contract law has emphasized other values, such as freedom or economic efficiency. “Justice”—as used, for example, in the Restatement (Second) of Contracts—has become a flabby word denoting unexamined intuitions or random contingencies. This article tries to restore justice to its proper place in contract law by providing an analytic framework for discussing its role. It sets out five principles of justice embedded in contract law: (1) Justice as the equal exchange; (2) Justice as the honest wager; (3) Justice as the term that fits; (4) Justice as the deserved return; and (5) Justice as the advantage not to be taken. Each of these “Justices” responds to a distinct social sense of justice, and each helps explain a considerable swath of the actual law of contracts. But they are not always mutually consistent, so together they define a realm of debate rather than of demonstrable outcomes. The concluding section of the article looks at the mechanisms by which that debate works to produce results, and how it fits together with other forces also shaping the law.


PDF link The Costs of Staying Put: The Stay-Put Provision’s Competing Interpretations and Financial Implications

By James Radcliffe

The Individuals with Disabilities Education Act (IDEA), which ensures that disabled children are not discriminated against in their education, is one of the most significant pieces of civil rights legislation passed in the 20th century. IDEA’s stay-put provision requires that, when parents and a school district disagree about the child’s appropriate educational placement, the child must remain in the setting for the dispute’s duration.

However, there is currently a circuit split on the stay-put provision’s scope. The D.C. Circuit interprets the stay-put provision narrowly, holding that the stay-put provision ceases to apply after a trial court decides where the proper placement is, even if the case is appealed to the appellate level. In contrast, the Ninth Circuit adopted a broad interpretation, holding that the stay-put provision applies until the dispute is finally resolved, which includes any appeals to the appellate court. In the 2014 case M.R. v. Ridley School District, the Third Circuit agreed with the Ninth Circuit that the stay-put provision applies during any judicial appeals.

This Note argues that the Ridley Court correctly interpreted the stay-put provision. The Ridley Court’s interpretation is correct because it comports with the statutory text, the legislative intent and history, the Department of Education’s regulations, and Supreme Court precedent on the stay-put provision and IDEA as a whole. This Note, however, highlights that the Ridley Court’s interpretation creates financial issues for cash-strapped school districts where a child is required to stay in an expensive private school during lengthy appeals. Therefore, this Note argues that Congress should amend IDEA to allow financially burdened school districts to move for a preliminary injunction requiring the child to transfer to the public school placement following a district court decision. This Note’s proposal strikes a balance between the child’s interest in receiving an appropriate and stable educational environment and the school district’s ability to fund the placement while the dispute is pending.

PDF link Decency, Evolved: The Eighth Amendment Right to Transition in Prison

By Dan Schneider

The United States is beginning to change how it treats transgender people within its prison system. Both state and federal corrections officials, policymakers, and judges are grappling with difficult questions about how to provide medical care, housing, and other basic services to transgender inmates without undermining prison security—or sparking a lawsuit. And with transgender rights becoming a more frequent topic of debate in American culture, these issues are unlikely to disappear.

Transgender prisoners, meanwhile, are stuck in a virtual purgatory of identity while they await access to numerous forms of necessary medical care; namely, those prisoners experiencing the condition known as gender dysphoria. Barring substantive changes to prison health care policies from the top, however, the most direct way for this group to obtain relief from this system may be through the courts. But by what means?

The Eighth Amendment may hold the key. This Comment argues that all prisons have a constitutional obligation to provide transgender prisoners with access to treatments like hormone replacement therapy and sex reassignment surgery in response to a diagnosed case of gender dysphoria. By weaving Chief Justice Warren’s famous “evolving standards of decency” benchmark into contemporary Eighth Amendment case law, this Comment provides a workable, clear-cut standard for assessing a transgender inmate’s claim that he or she has been unconstitutionally denied access to medical care.