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Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application of Liberal Consideration for Veterans with Post-Traumatic Stress Disorder

Rather than continue this pattern of punishing veterans for having mental health conditions—commander kicks them out and the discharge review board kicks them again—veterans deserve the opportunity for true relief in recognition of their service and the mental health condition they developed due to that service. […]

Diversity to Deradicalize

In articulating a new explanation of Powell’s motives in Bakke, this Article not only calls into question the prevailing understanding that Powell was motivated by his commitment to racial justice, it also complicates a more critical view of the diversity rationale that locates the Court’s endorsement of “the educational benefits of diversity” in a recognition that exposure to racial minorities confers benefits onto Whites. Under this theory, Powell’s endorsement of diversity stemmed from an awareness that White college students needed exposure to the views of students of color to be effective leaders in an increasingly multiracial society. […]

States of Inequality: Fiscal Federalism, Unequal States, and Unequal People

Two potential solutions that have been proposed for addressing the fiscal disparity among states are (1) following the lead of other federal nations and adopting a system of interstate fiscal equalization or (2) ending federalism and fully nationalizing key programs. As I will discuss, neither of these polar solutions is feasible or desirable. Instead, drawing on contemporary federalism scholarship and on scholarship in the area of fiscal federalism, I will argue that the federal government should address fiscal disparities by engaging in calibrated matching grants across an array of programs. […]

Looking to Hybrid Species for the Future of Coral Reefs

Although corals can hybridize and adapt to the threat of climate change, the existing legal framework in the United States is insufficient to ensure their protection. This regulatory gap leaves hybrid corals exposed to local and regional stressors. But legal protections, like the corals themselves, can adapt and evolve. If we value coral reefs, we should modify the legal framework that protects corals and related marine ecosystems to encompass naturally occurring resiliency tools such as hybrid corals. […]

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U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19

This Essay will connect the persistent strategies, logics, and identities created by settler colonialism to the disparate health impacts of COVID-19 in Indigenous, Black, and immigrant of color communities in the United States. By offering a framework that uncovers the root causes of ongoing patterns of systemic oppression, this Essay hopes to inspire reform efforts that seek to alter such patterns by advancing reform efforts that are grounded in truth, justice, and reconciliation. […]

Negotiating Trauma & the Law: Maybe We Won’t “Shake It Off”

But, in 2020, lawyers cannot afford to buy the myth that trauma is an aberration in the profession of otherwise Teflon-coated lawyering machines. Negotiating trauma is perhaps as old as the profession, even though we may have never given that emotional labor nomenclature or visibility, to our detriment. […]

Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans

Anti-mask laws ban the wearing of masks in public. Popularly understood to prevent Klan activity, these laws are often vague, with a history of selective enforcement. They also clash with the exhortations to wear personal protective equipment to prevent the spread of COVID-19, which by summer of 2020 was encouraged by all states and required by many. […]

Abandoning Centrality: Multidistrict Litigation After COVID-19

Courts around the country have adapted to the reality of socially distanced litigation, allowing virtual hearings and even trials to take place over the Internet. This infrastructure will outlast COVID-19 and will minimize the burden of traveling for litigation. In the face of these changes, the JPML should accordingly limit the importance of geographic centrality when choosing a forum for multidistrict litigation.

Textualism and the Duck-Rabbit Illusion

But in other cases, textualists proceed as if legal texts have an ordinary meaning even when they do not. Judges see a rabbit, or a duck, when other reasonable readers see a duck, or a rabbit. Such judges are “seeing as.” Nonetheless, they insist that they are “seeing that.” They do not think, do not know, and might not even believe, that “someone else could have said of [them]: ‘He is seeing the figure as a picture-rabbit.’” […]

The Case for Affirmative Action

Proposition 16 would undo Proposition 209. Its passage would not create racial quota systems, which the Supreme Court, in University of California v. Bakke, deemed unconstitutional, but would make it possible for state offices to consider applicants’ identities when making decisions about where resources are allocated and access is granted. […]

The Counter-Majoritarian Difficulty of a Minoritarian Judiciary

Popular selection of judges offers a partial answer to the charge that the judiciary has usurped the role of the People in constitutional governance. Particularly in today’s intensely polarized environment, whether judges are selected through a process that actually reflects popular preferences is thus of critical importance to the democratic legitimacy of the constitutional order. […]