Volume 2023, No. 4

PDF link Table of Contents


PDF link Freedom Not to See a Doctor: The Path Toward Over-the-Counter Abortion Pills

Lewis A. Grossman

American courts and lawmakers are engaged in an epic struggle over the fate of abortion pills. While some anti-abortion activists are attempting to drive the pills off the market entirely, supporters of reproductive rights are striving to make them more easily accessible. This Article advances the latter mission with a bold proposal: FDA should consider allowing abortion pills to be sold over the counter (OTC). Abortion rights supporters argue that FDA should repeal the special distribution and use restrictions it unnecessarily imposes on mifepristone, one of two drugs in the medication abortion regimen. Even if FDA removed these restrictions, however, abortion pills would still be prescription medicines—a status that, in and of itself, hinders people’s access to drugs. This Article thus advocates going further by repealing the prescription requirement for abortion pills. To support this proposal, the Article analyzes the prescription-to-OTC switch process for drugs generally, explores how prescription status impedes access, and argues that FDA should give greater weight to the benefits of improved access when considering any OTC switch. The Article discusses recent promising instances of successful switches—including naloxone and birth control pills— in which FDA emphasized the access factor more than it traditionally has. Finally, the Article considers various intermediate approaches between prescription and OTC status and explains how federal and state regulators might use these approaches to improve access to abortion pills in the absence of a complete switch.

PDF link Immigration Law and Slavery: Rethinking the Migration or Importation Clause

Geoffrey Heeren

The origins of immigration law are deeply connected to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This Article shifts the paradigm by focusing on a long-neglected textual reference to a federal immigration power: the Migration or Importation Clause enumerated in Article I, Section 9, Clause 1 of the Constitution. Scholars have mostly discounted the Migration or Importation Clause’s relation to federal immigration power because of its connection to slavery. In sharp contrast, this Article contends that the Migration or Importation Clause makes sense as a referent of the federal immigration power because of its connection to slavery, which was deeply intertwined with immigration in the early republic.

PDF link Laundering Police Lies

Adam M. Gershowitz & Caroline E. Lewis

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a covered greenhouse from a moving helicopter hundreds of feet in the air (Florida v. Riley), and that a secretive drug dealer just happened to be standing on the front porch holding a bag of drugs at the moment the police showed up (United States v. Santana). In the famous case of Terry v. Ohio, the Court ignored the fact that the officer changed his story multiple times. And in less-famous cases like Ornelas v. United States, the Court has been unfazed when police officers were caught lying about the appearance of crucial evidence.

This Article explores the prevalence of police lying and examines the U.S. Supreme Court’s unquestioning acceptance of police lies. In addition to identifying the Court’s gullibility and possible complicity, this Article examines criminal procedure doctrines that enable police to bake lies into cases at an early stage. This Article recognizes that the Court cannot eradicate police dishonesty, but advocates for heightened judicial alertness for police lies and an increased willingness to reverse convictions based on them. The Court should additionally utilize its educational function to signal to lower courts, police departments, and the general public—which is more attuned to police misconduct than ever before—that police lying is present and will not be tolerated.

PDF link A Revolution without a Cause: The Digital Markets Act and Neo-Brandeisian Antitrust

Yunsieg P. Kim

This Article uses the Digital Markets Act (DMA), which took effect in the European Union on November 1, 2022, to demonstrate the neo-Brandeisian antitrust movement’s most fundamental problem: it has not yet shown why its proposals are necessary to accomplish its stated goals. Neo-Brandeisians cite perceived unfair conduct by the likes of Google and Apple as evidence that the existing legal regime’s approach of fostering competition has failed, and that a new approach of regulating each unfair conduct specifically is necessary. But the mere fact that bad things happen does not mean that existing law has irredeemably failed, just as the continued existence of crime does not mean that criminal law has failed. The solution might not necessarily be to abandon existing law, but to change how existing law is applied. Indeed, this Article shows that existing law in both the European Union and the United States can feasibly achieve the neo-Brandeisian goal of regulating unfair conduct by platforms like Google and Apple, thereby making the DMA unnecessary.

PDF link International Tax Policy’s Harm to Manufacturing and National Interests

James R. Repetti

Two tax regulations that permit U.S. multinational enterprises (MNEs) to use foreign contract manufacturers and to disregard their wholly owned foreign subsidiaries have created significant tax incentives for MNEs to move manufacturing outside the United States. These tax incentives have contributed to the loss of five million manufacturing jobs and the closure of more than 91,000 plants since 1997.

The job losses exacerbated racial and economic inequality and stressed our political system. But the losses arising from offshore manufacturing extend to other areas as well. Offshore manufacturing increases U.S. exposure to supply chain disruptions, threatens national security, and decreases research and development efforts to improve production techniques. Also, as automated manufacturing increases, the use of offshore manufacturing hinders the ability of the U.S. to compete in that sector.

The U.S. implementation of a corporate alternative minimum tax in 2023 and the current Organization for Economic Co-operation (OECD) initiative, Pillar Two, which seeks to impose a global corporate minimum tax, may reduce the incentive to offshore in some instances. But the incentives created by the two tax regulations for U.S. MNEs to offshore clearly remain and should be eliminated given the harms they have inflicted and are likely to inflict in the future.


PDF link The Puck Stops Here: A Legal Argument for the Establishment of a Domestic Violence Policy in the National Hockey League

Sarah E. Cannon

Nearly a decade after the National Football League, the National Basketball Association, and Major League Baseball established their domestic violence policies, the National Hockey League (NHL) inexplicably remains the only major professional sports league in the United States without a league-specific policy. While the NHL and the NHL Players’ Association do incorporate a provision regulating off-ice conduct in their collective bargaining agreement, the current provision is highly discretionary, overly vague, and ultimately insufficient to properly protect both survivors and accused players.

Domestic violence and sexual misconduct remain urgent issues in professional sports, and it is essential for the NHL to establish a league- specific policy. The NHL must codify a domestic violence policy in its collective bargaining agreement to ensure justice for survivors and fair process for accused players, following the lead of the other major sports leagues. This Comment evaluates the inadequacy of both available judicial remedies for survivors and the league’s current regulation of off-ice player conduct. It concludes by providing policy recommendations for drafting an NHL-specific domestic violence policy based on a comparative analysis of existing major professional league policies.

PDF link Begging the Question: Judicial Review of Ballot Questions for Referred State Constitutional Amendments in Wisconsin

Taylor A. Hatridge

Among the most powerful instantiations of popular sovereignty is the people’s right to amend their state constitutions. In Wisconsin, the legislature refers proposed state constitutional amendments to the electorate, who decide whether to ratify based on a brief ballot question. Because a single question often cannot inform voters of the scope or import of an amendment with multiple provisions, voter consent to constitutional amendments becomes a legal fiction, especially where ballot questions are vague, incomplete, or misleading. Insufficient ballot questions that obscure or misrepresent the underlying amendment allow the legislature to manipulate the referendum process. This practice erodes popular sovereignty and abrogates constitutional accountability mechanisms. Effective procedural safeguards are thus necessary to legitimize referenda outcomes. However, the Wisconsin Legislature has created few statutory procedural safeguards to ensure accurate, clear, and complete ballot questions. Additionally, the Wisconsin Supreme Court’s inconsistent approach to judicial review of ballot questions renders these limited safeguards largely ineffective.

PDF link Breaking the Green Washing Wave: The Need for ESG-Friendly Securities Fraud Class Action Standards Post-Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System

Jessica Biggott

Climate change is an all-encompassing concern, requiring nearly every aspect of American life to adapt. Financial systems are not exempt. Accordingly, investors have begun embracing this need for change through “ESG” investing, which considers companies’ environmental, social, and governance practices in order to promote “green” companies and general corporate “good.” However, despite its enormous popularity, ESG investing suffers from a lack of regulation. What actually constitutes positive “ESG” indicators is obfuscated, causing confusion among the finance industry as a whole and leaving investors defrauded into thinking a company’s practices are “green.” This practice of sustainability-related misrepresentation has come to be known as “green washing.”

Without a viable path to recourse, where are investors who bought into green-washed representations supposed to turn? In 2022, the U.S. Securities and Exchange Commission (SEC) proposed a climate-based disclosures rule as a potential answer to this question. While it is a step forward for ESG investors, the proposed rule is limited in scope and will likely face legal challenges if promulgated. Also in 2022, the Supreme Court issued its decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, which raised additional hurdles to certifying classes in securities fraud class actions. These hurdles are likely to be especially troublesome for injured ESG investors attempting to bring securities fraud suits.