Volume 2021, No. 6

PDF linkTable of Contents


PDF linkDe-Coding Free Speech: A First Amendment Theory for the Digital Age

by Xiangnong Wang

For more than two decades, courts have embraced the rule that computer code is “speech” within the meaning of the First Amendment. While this principle has been celebrated by some, it should now be cause for great concern. In recent years, technology companies have relied on the doctrine that “code is speech” and other expansive theories of First Amendment coverage to claim sweeping constitutional protections for their commercial activities. If this trend continues, it will lead to consequences that are both dangerous and absurd.

This Article argues that the prevailing approach to First Amendment coverage for code is fundamentally misguided and must be abandoned. Such a capacious vision of First Amendment coverage for code is ill-suited to the realities of the modern world. Code flows through nearly all of our daily interactions. Adding a constitutional valence to every one of these activities would be a perilous proposition. It would give opportunistic litigants free rein to manipulate the First Amendment to insulate their private power from public accountability, and it would lead to a free speech jurisprudence that is unwieldy, incoherent, and unmoored from democratic values.

To avoid these outcomes, courts must reject abstract and categorical rules like “code is speech.” Instead, courts should adopt a framework for evaluating code that is grounded in the values that the First Amendment was meant to serve. This involves answering fundamental questions about what the First Amendment is for—and who it is for. In the coming years, as courts are called upon to shape the contours of regulation in the digital age, it will become all the more urgent to elucidate a First Amendment jurisprudence that actually makes sense for the modern world. Addressing these concerns is critical, not just for the future of governance, but for the future of free speech.

PDF linkRebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP

by John Bliss

Historically rooted patterns of racial segregation in housing remain a significant contributor to racial inequities in health, intergenerational wealth, and life chances more generally. This Article uncovers a powerful but long-forgotten model for rebellious lawyers in the struggle for fair housing. I draw this model from archival research on the innovative early NAACP lawyers who litigated racially restrictive covenants from the 1910s to the 1940s. Facing a hostile judiciary, and with little legal precedent on their side, these lawyers turned their attention to a fundamental conceptual obstacle to their cause: what they termed “property in a sociological vacuum.” The vacuum view frames property ownership as an entirely private matter unrelated to the public interest and social context more generally. Under this logic, segregationist lawyers had convinced the courts that supporting racial covenants was a racially innocent defense of white homeowners’ property rights. The early NAACP lawyers countered this vacuum understanding of property on theoretical grounds and backed up their position with social-scientific findings that mapped out the pervasive use and devastating impacts of racial covenants in communities of color. Courts had never before been presented with such an enormous trove of social-scientific research in civil rights litigation. This strategy reached full expression in Shelley v. Kraemer (1948), the landmark U.S. Supreme Court decision that rendered racially restrictive covenants unenforceable.

The Shelley decision is a well-studied staple of the first-year law school curriculum, but far less attention has been given to the decades of legal efforts that made it possible. This Article traces that history in detail. I show how NAACP-affiliated lawyers identified the vacuum view of property as a central target in their litigation strategy and then worked with academics and other social movement allies to develop a record of empirical research. This strategy enabled these lawyers to fill the sociological vacuum around property. In this way, they forced the judiciary to see that racial covenants were more than purely private instruments of individual landowners but rather had formed a pervasive land policy of racial apartheid, slum conditions, and excluding people of color from homeownership. I conclude by arguing that this “lost scientific model” should be emulated by today’s fair housing lawyers, who continue to encounter the vacuum view of property as a core theoretical obstacle to racial integration and inclusion.


PDF linkJudicial Campaign Finance and Election Timing

by Michael S. Kang & Joanna Shepherd

After her retirement from the United States Supreme Court, former Justice Sandra Day O’Connor warned that elected judges could be seen as “politicians in robes” and adopted judicial election reform as her professional cause. Justice O’Connor feared that “motivated interest groups [were] pouring money into judicial elections in record amounts” and worried that judicial elections had “turned into ‘political prize-fights, where partisan and special interests seek to install judges who will answer to them.’” Our empirical work, described briefly here, arguably confirms Justice O’Connor’s fears about judicial elections and campaign finance.

Over more than a decade, our work has established that judicial campaign finance influences judicial decision-making by elected state supreme court justices. We have studied the statistical relationship between campaign money and judicial decision-making in a variety of ways at the state supreme court level, but our analysis of the data consistently reaches the same general conclusion: judges’ voting in cases tends to favor the interests of their campaign contributors in a predictable and statistically meaningful way.


PDF linkIgnoring the Cries of Black Mamas: Looking Beyond Tort Law to Ensure that Black Mothers Are Heard During Childbirth

by Elise Ashley

The image of an elated mother cradling her newborn while leaving the hospital is often the first image individuals envision when thinking about the beauty of childbirth. However, for many Black women, that picturesque scenario is not their reality. Black women are more likely to die of childbirth-related causes than white women, a disparity explained by systemic racism rooted in the medical industry.

While tort law is an arena where harmed mothers can seek justice, in reality, this method rarely leads to a finding in favor of the harmed mother and fails to address the reason why Black birthing women need to resort to tort law in the first place. Though this Comment does not discount the benefits of tort law, it calls on states to embrace a holistic view of childbirth that includes freestanding birth centers, midwives, and doula services. With individual states in control of the services covered by their respective Medicaid plans, states should ensure routes for freestanding birth center licensure and provide equal reimbursement rates for midwifery services. This reform will ensure that Black women are heard, empowered, and protected during childbirth.

PDF linkTrojan Unicorn: Exploiting Religious Exemptions to Advance LGBTQIA+ Law

by Riley Palmer

In the Supreme Court’s landmark civil rights case Bostock v. Clayton County, Justice Gorsuch suggested the Religious Freedom Restoration Act (RFRA) is a super-statute that may supersede the Court’s holding. This “RFRA caveat” demonstrates the dangers unanalyzed assertions of super-statutedom pose. This Comment first argues RFRA is undeniably not a super-statute. Then, to disincentivize such assertions, this Comment proposes a revised framework called Informed Comparative Scrutiny (ICS) for analyzing super-statutes in conflict. ICS moves the dispositive question away from whether a statute is super and toward what to do when super-statutes collide.

ICS proposes that when assessing super-statutes in conflict, reviewing courts should engage in a two-step process that looks both to the comparative weight of the rights infringement and to the nature of the interests or rights at stake. Because super-statutes are quasi-constitutional, ICS incorporates Justice Thurgood Marshall’s sliding-scale theory of heightened scrutiny, while super-statutes themselves provide democratic guidance for assessing the importance of competing values. ICS applies a version of sliding-scale to both constitutional claims and to claims implicating interests closely related to guaranteed rights.

ICS provides an analytical roadmap for litigants facing unsympathetic judges and Justices to advance new, progressive claims. Using ICS, progressive litigants may seize on the Court’s openness to super-statute analysis as a means to persuade courts to use a more reasoned approach to balancing religious freedom with LGBTQIA+ rights and reproductive rights. In turn, this may increase the likelihood of success for LGBTQIA+ claims and intersectional claims more broadly.

PDF linkAnderson-Burdick, Democracy, and Tradition in the Republic of Palau

by Ketib Oldiais

Over 7,000 miles west of Hawaii, a Pacific Island nation of roughly 20,000 people attempts to balance modern democracy and cultural identity. A former U.S. trusteeship, the Republic of Palau gained independence barely thirty years ago. The indigenous Palauans, however, have inhabited the archipelago for millennia. Drawing on its colonial past, the Republic’s founders structured a state governed by democratic principles and non-democratic customary law. Within this structure, three groups wield political power: the elected officials, the appointed judges, and the unelected traditional leaders. Three constitutional rules bind this structure: First, all governments within the nation must follow democratic and traditional principles. Second, under democratic principles, the elected officials have the powers to appoint the judges and to grant or deny the traditional leaders’ authority. Third, under traditional principles, only traditional leaders may appoint traditional leaders.

Shortly after independence, the judges faced a problem: elected officials attempting to appoint traditional leaders. The attempts were a response to another problem—traditional leaders neglecting their constitutional duties to resolve appointment disputes. Responding to vacancies among the traditional leaders, the elected officials passed laws allowing them to directly appoint an individual and indirectly acknowledge a candidate as the appointed traditional leader. Both problems persist.

The Palau Supreme Court responded with conflicting holdings. Under Ngardmau Traditional Chiefs and Ngara-Irrai, the elected officials cannot appoint traditional leaders. However, under Obeketang, they may do so indirectly through their Sole Judge Clause powers. This Comment explains the problems with these decisions and argues that an alternative framework is needed for future litigants. That framework calls for an interest-weighing procedure analogous to the Anderson-Burdick doctrine.

PDF linkNews of the School 2021