Article
After the election of 2016, many who opposed President Trump and his policies argued that local governments and local power would be the best tools to resist those policies and strengthen democracy. Among the most prominent acts of local resistance in the last decade have been resolutions that declare a town or a city a “Sanctuary” and refuse to cooperate with federal authorities in the deportation of undocumented immigrants. This Article situates these resolutions in a long tradition of local…
by Daniel Farbman
Article
For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus…
by Zahra Takhshid
Article
Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom and the challenges of building new pipelines have forced…
by James W. Coleman
Article
Introduction On the whole, the labor and employment law of the United States is not, in a global comparative sense, very protective of employees and restrictive of employers. United States law does not compare favorably with that of other countries in what generally may be termed “employment protection.” To be fair, the substantive law “on the books” is only one measure of how protective a legal system is, and compliance, coverage, enforcement, and other issues also are important. Nonetheless, U.S.…
by William R. Corbett
Article
Introduction Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in…
by Mark Tushnet & Bojan Bugarič
Article
Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing…
by Wes Henricksen
Article
This Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional…
by Erin Ryan, Holly Curry & Hayes Rule
Student Note
Introduction While dating her boyfriend, Akhil Patel, of seven years, Nadia Hussain did what so many people of her generation have done: she sent him emails with nude photos of herself and engaged in video sex via Skype. Although she told him to delete the photos, he never did. He betrayed her trust even further by secretly recording their video sessions. After Nadia broke up with Patel, he started to lash out at her via text message, threatening to send…
by Leah S. Murphy
Student Note
Introduction The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) governs two broad areas of local and state government regulation: religious land-use regulation and religious regulations governing institutionalized persons. This Note focuses on the land-use regulation portion of the law. In particular, the purpose of this Note is to examine the negative external impacts the law creates. When a law benefiting one group negatively impacts another group, the negatively impacted group is called a third party. In the…
by Menachem Polishuk
Student Note
Introduction In the recently decided case of Edmo v. Corizon, Inc., the United States Court of Appeals for the Ninth Circuit issued a decision highly relevant to the still-developing field of transgender rights in the United States. As a transgender prisoner of the Idaho Department of Corrections (IDOC) suffering from the debilitating psychological effects of severe gender dysphoria (GD), Edmo was denied the opportunity to pursue gender confirmation surgery (GCS) in an effort to alleviate her symptoms. Although Adree Edmo…
by Julian S. Cohen
