In 1996, Congress passed the Prison Litigation Reform Act (PLRA) with the goal of limiting the number of frivolous federal lawsuits filed by people in custody. One of the PLRA’s key provisions is the exhaustion requirement, which requires people in custody to attempt to resolve their grievances within the prison before federal courts can hear their claims. Legal scholars who write about transgender people in custody often analyze the merits of claims but give little attention to the procedural roadblocks posed by the PLRA and its exhaustion provision. And PLRA scholars have yet to examine the exhaustion provision from a trans-informed lens. Thus, there exists a scholarly gap in two directions.
Drawing on a survey of federal case law and original interviews conducted with legal advocates, this Note argues that the exhaustion provision stands as a nearly insurmountable barrier to trans people’s ability to remedy the challenges they face in custody. Unsurprisingly, the PLRA’s exhaustion requirement burdens trans people in ways it burdens non-trans people. But it also burdens trans people in exacerbated or wholly specific ways. As a result, the exhaustion requirement systematically prevents trans people from resolving their non-frivolous grievances and leaves them vulnerable to continued abuse in prisons.
In addition to its doctrinal contribution, this Note also centers trans people’s experiences in a way that most case law does not. The goal of this Note is to call attention to the specific hardships trans people face while incarcerated and offer small- and large-scale solutions to ensure that they have meaningful access to justice.
Peyton Lepp, J.D. 2024, Columbia Law School
Using the recent Cherokee Nation Prison Agreement as a case study, this Note explores the due process implications of a federally recognized tribe transferring its citizens to serve tribal sentences in out-of-state detention centers. Tribes in Oklahoma have grappled with increased detention needs following McGirt v. Oklahoma, a 2020 Supreme Court decision that greatly expanded tribal criminal jurisdiction. The impact of this decision led one such tribe—the Cherokee Nation—to negotiate a multimillion-dollar agreement with a privately-owned detention center and a Texas county government. Under this agreement, Cherokee Nation citizens can be transferred to the Limestone County Detention Center to serve tribal court sentences. This Note argues that the transfers authorized by the Cherokee Nation Prison Agreement, and others that may arise in the wake of McGirt, impose hardships on the transferred tribal citizen that invoke a liberty interest giving rise to due process protections.
Alexander Gouzoules, Associate Professor of Law, University of Missouri School of Law
Formally, judicial analysis of a challenged statute’s validity should be consistent, regardless of the challenge’s pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute’s validity should turn on its content and effect—not on whether it was challenged before or after enforcement.
This Article challenges that assumption, arguing that pre-enforcement challengers enjoy significant strategic advantages in court. To be sure, offensive, pre-enforcement challengers must establish that their suit presents a genuine case or controversy and convince decision-makers that they face a real harm. But on the other hand, attorneys planning pre-enforcement challenges often enjoy the opportunity to select their clients, control their suit’s timing and forum, and shop for judges. And when challenging laws that protect beneficiaries from harms such as discrimination, pre-enforcement challengers likely benefit from the absence of identified victims in speculative lawsuits.
After identifying these potential advantages, this Article analyzes a set of factually similar challenges brought by wedding vendors against public accommodations laws that forbid discrimination against LGBTQ+ customers based on their sexual orientation. It explains that pre-enforcement challenges—including speculative cases brought by plaintiff businesses that had never received requests from LGBTQ+ customers—were consistently more successful than post-enforcement challenges arising from proceedings against defendant businesses that denied services to LGBTQ+ customers. Finally, this Article explores the implications of pre-enforcement advantages for standing doctrine, litigation strategy, and the proper role of courts in a democratic society.
Alan Mygatt-Tauber, Adjunct Professor and Affiliated Scholar, Seattle University School of Law
For over a century, courts have struggled to determine whether, and to what extent, the Constitution applies outside our borders. To date, they have not come up with a single test to make this determination, instead taking an ad hoc, clause-by-clause approach that has left nothing but questions for lower courts to grapple with. Scholars have suggested various tests, based on differing theories of extraterritorial application, but so far, none has caught on. After examining the conventional discussion of the extraterritorial application of the Constitution, additional cases that are often left out of this history, as well as contributions from the lower courts, this Article provides a new test for courts to use to determine when to apply the Constitution to a claim. This proposed test draws on various prior court cases to distill the inquiry down to a straightforward application of a three-part test.
First, a court should determine whether the U.S. government has the power to act at all. If the court determines that the Constitution forbids the action in question, then the court should enforce that prohibition and the test is over, for the government may not exercise power it lacks anywhere in the world. Second, if the government does have the power, the court should next ascertain where the alleged constitutional violation has taken or will take place. Courts far too often skip this step, just assuming that if the plaintiff is outside the United States, the violation must have occurred there. But as this Article discusses, this is not always so. While the effects of unconstitutional action may be felt outside the United States, the action itself often occurs domestically. In such a case, the court would apply the Constitution normally. Only if the action alleged to have violated the Constitution occurred abroad should the court turn to the final inquiry—does the Constitution apply and if so, to what extent?
This final step is itself composed of three parts. First, because the Constitution will never provide more rights outside the territory of the United States than within, the court should determine if there are constitutional or prudential doctrines, such as standing, ripeness, or mootness, that interpose and prevent a decision. If the court can reach the merits, it then must ask itself, consistent with Supreme Court precedent, if applying the constitutional provision at issue abroad would be “impracticable or anomalous.” Is the court dealing with a right that can be applied abroad? Are there practical obstacles that would require tailoring the right, such that its application abroad may not precisely mirror its application at home? As a backstop, I suggest that such tailoring can never violate a ratified treaty or nonderogable jus cogens norm. Finally, does there exist, or can the court create, an equally effective alternative to safeguard the interests protected by the constitutional provision at issue?
The Article concludes by running several fact patterns through this test, to demonstrate how it would work in the real world, where judges are called upon to make these difficult decisions.
Leah Haberman, J.D. Candidate 2024, Columbia Law School
This Note will analyze how the Court’s refusal to acknowledge the realities of human emotion has problematized their own death penalty jurisprudence. This refusal led the Court, in McCleskey v. Kemp, to act dramatically inconsistent with their own legal logic when faced with the worst of human impulses, racial discrimination. This Note will focus on the slippery slope argument employed in McCleskey that articulated how a decision on the death penalty’s discretion would endanger discretion throughout the criminal legal system. This conflation of capital and non-capital discretion reversed course on the Court’s grounding logic that the death penalty is unique. It is that flaw in McCleskey’s logic that this Note will explore and will outline how rectifying this inconsistency forces the Court to go down a new path rather than continuing to stay frozen in McCleskey’s amber where the death penalty is constitutional and discriminatory.
Sabine Michalowski, Professor of Law, University of Essex
Despite increasing awareness that economic actors can play a significant role in international crimes committed during armed conflicts, little international experience on how to achieve their criminal accountability in transitional justice processes exists. The innovative approach taken by Colombia in the Final Peace Agreement between the Colombian government and the FARC-EP in 2016 provides a fascinating case for analysis. In sharp contrast with the Colombian Justice and Peace process, which started in 2005, the Final Peace Agreement included economic actors in the remit of the Special Jurisdiction for Peace, a criminal tribunal specifically created to investigate crimes committed during the Colombian internal armed conflict. This Article provides a detailed examination of why and how these actors were included in the remit of the Special Jurisdiction for Peace, the contentious nature of this endeavour, and the lessons that can be learned from this for future transitional justice processes with regard to achieving criminal accountability of economic actors.
Henry Goldberg, J.D. Candidate, 2023, Columbia Law School; B.A., 2020, Vanderbilt
University.
Over thirty years after the passage of the Americans with
Disabilities Act, Philadelphia’s rail and trolley networks and New
York City’s subway system are still terrible for accessibility. In New
York, a mere 24–28% of stations are accessible. For people with
disabilities—particularly mobility disabilities—this makes the
accessible parts of the two cities’ transit systems invaluable for
everything from economic prosperity to general connectivity to the
rest of their communities. Thus, one might wonder who has access to
this vital resource. Is station accessibility split up along racial/ethnic
lines? If so, what remedies might exist under Title VI and/or the ADA
to fix that?
This Note employs an empirical analysis in order to answer
the first question, relying on geospatial data paired with
corresponding Census demographic data. The results of the linear
and logistic regressions indicate that race is indeed correlated with accessibility levels. In Philadelphia, stations are less likely to be
accessible when located in areas with higher concentrations of Black
residents, and in New York City, they are less likely to be accessible
when located in areas with higher concentrations of Latine and, in
particular, Afro-Latine residents. The Federal Transit
Administration’s forthcoming revised Circular offers an opportunity
to correct this problem. Failing that, however, there is likely enough
evidence to warrant at least the filing of an administrative complaint
under Title VI.
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Elizabeth Chu. Executive Director, Columbia Center for Public Research and Leadership; Lecturer of Law, Columbia Law School.
James S. Liebman. Simon H. Rifkind Professor, Columbia Law School.
Madeline Sims. Director of Consulting and Legal Strategy, Columbia Center for Public Research and Leadership.
Tim Wang. Law Clerk, U.S. District Court for the Eastern District of New York.
State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack—from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as equal choosers. To be sure, those values are not neutral. But as Brown v. Board famously concluded, their promotion in public schools is perhaps the nation’s and states’ single most compelling interest, because it is essential to the ability of people with diverse beliefs to live together harmoniously while preserving their vast freedoms in other respects. To keep public education from qualifying those freedoms any more than necessary, states give families a right to opt for private education, but at their own expense. This arrangement serves the compelling interest in public education, however, only if public schools—bolstered by compulsory education laws and their uniquely full public subsidization—attract enough families. For well over a century, public schools have attracted around 90% of all school children. Today, however, family moves away from public education are eroding its ability to attract children due principally to public education’s conflation of “public” with bureaucratically “uniform” education—precluding pedagogically, democratically, and equitably essential differentiation among students. The Article proposes ways public schools can better model liberal democratic values by engaging all families in the cooperative and differentiated direction of their children’s learning.
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Rebecca Sharpless is Professor of Law at the University of Miami School of Law.
Kristi E. Wintermeyer is a forensically trained, board certified psychiatrist practicing in the PTSD program at the Bruce W. Carter Miami Veterans Affairs Healthcare System.
This article analyzes the asylum decisions of immigration agencies and federal appellate courts and demonstrates that the case law driven standard for persecution is out of step with the original meaning of the term, international law standards, and contemporary understanding of how human beings experience physical and mental harm. Medical and psychological evidence establishes that even trauma at the lower end of the spectrum of severity can inflict lasting and debilitating effects on people’s health. Yet over the last three decades, virtually no court decisions have decreased the showing of harm needed to establish persecution. To the contrary, courts have generally ratcheted up what is required. Today, most judicial decisions rest on the unwarranted assumption of an unbreakable asylum applicant who must show systematic and escalating physical mistreatment over a sustained period or a single instance of extraordinary harm that results in a scar, disability, or other lasting physical injury. Although mental harm can qualify as persecution, courts rarely find persecution based solely on mental mistreatment. And courts routinely fail to consider the longstanding mental effects of physical trauma. Court decisions on persecution are consistent with troubling studies suggesting people have difficulty empathizing with, and understanding, the situations of others when there is a lack of immediacy, and that decision makers and authority figures are prone to making racialized attributions of pain on the baseless assumption that people of color can withstand more pain than white people. Decision makers should seek to minimize the tendency to downplay the pain of others in asylum adjudications and adopt a human rights approach, which tags the concept of persecution to the violation of a human right and better tracks the prevailing understanding of how humans experience both physical and mental mistreatment, which grows more encompassing over time.
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Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School.
Disqualification after impeachment prevents the return of unfit leaders to power by barring their re-election—but for how long? This article examines international human rights decisions on the duration of post-impeachment disqualification, including an important 2022 opinion of the European Court of Human Rights, along with the experience of impeachment in the United States. The neglected history of impeachment in U.S. states adds dimensions to the thinner narrative of impeachment at the U.S. federal level. The European insistence on keeping disqualification proportionate resonates with a minority practice of partial disqualification in the states. Nonetheless, the European Court’s prohibition of irreversible lifelong disqualification may be too rigid for democracies under threat.
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Susan Rose-Ackerman, Henry R. Luce Professor of Law and Political Science, Emeritus, Yale University, and Professorial Lecturer, Yale Law School.
Professional codes of ethics regulate lawyers’ conduct and prioritize loyalty to their clients’ legitimate interests. Clearly, effective legal representation is an essential aspect of every attorney’s responsibility. However, this essay goes further and asks if it is sufficient in one important class of cases—legal assistance in the negotiation and implementation of transnational business deals. This essay argues that, at least for such transactions, legal professionals have ethical obligations that extend beyond the interests of their principals and should include recognition of broader social, environmental, and human rights concerns. But if legal professionals accept that claim, how can such obligations be articulated and enforced without undermining attorneys’ primary obligations to their clients? This essay makes a preliminary attempt to frame an answer.
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Associate Professor, University of South Carolina School of Law.
The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, and litigation that targets procedural injuries rather than substantive educational practices.
The IDEA’s core procedural rights are meant to guarantee students with disabilities an appropriate education in the most integrated setting possible. Yet, in high-poverty schools, virtually none of the law’s promises are realized. The IDEA’s rights are tethered to an assumption that schools are operating with an adequate level of capacity and proficiency, but under-resourced schools lack the ability to ensure either. As a result, the law’s three core principles—procedural rights, appropriate education, and integrated settings—are badly diminished for students with disabilities in high-poverty schools. Essentially, individual students are unable to leverage the IDEA’s rights for meaningful remedies, and they are thwarted by courts when they attempt broader programmatic change. Meanwhile, advocates’ emphasis on enforcing procedural rights merely strengthens the law’s structural weaknesses. Fulfilling the IDEA’s purpose requires a shift in how courts and advocates understand the law’s limitations in under-resourced schools. It also requires a growth in political will to incentivize and fund local solutions aimed at improved student outcomes. This Article proposes a framework for such a shift.
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S.J.D., Duke Law School; LL.M., Harvard Law School.
Existing theories and doctrines of free speech have focused on why the freedom to express is indispensable for realizing the values that we treasure, such as truth or democracy. However, how expression facilitates those values is underexplored. This Article proposes a doctrinal framework of free speech consisting of four parts: right of control over one’s information, right to know, right of access to platforms, and behavioral rules of public discussion. These are the constitutive parts that are necessary for the exercise of free speech to be meaningful and effective. After elaborating on these elements, this Article tests the framework by analyzing four cases: the European Union’s Right to Be Forgotten, the information disclosure laws of China, the blocking of Trump’s Twitter account, and the Indian hate speech incident. Those four cases offer a more comprehensive scenario as to how the quadruple framework operates in real contexts.
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Associate Professor and Director, Health Justice Alliance Law Clinic at Georgetown University Law Center; J.D., Stanford Law School; B.A., University of Maryland.
A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into court alone for an eviction hearing and faces an experienced landlord’s attorney, the tenant is unlikely to prevail, and her eviction can lead to myriad poor health outcomes.
The health justice movement leverages law and policy to advance health equity. In recent years, it has gained tremendous traction, especially due to the COVID-19 pandemic’s spotlight on health disparities. In tandem, the access to justice movement is progressing with the advancement of major federal, state, and local legislation and initiatives. However, the movements have been running on parallel tracks, and their connections have been under-examined. This Article puts the two movements and bodies of scholarship squarely in dialogue with one another.
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J.D. Candidate 2022, Columbia Law School; B.A., 2015, Bowdoin College.
The ability to assemble, protest, and air grievances in the public sphere of one’s community is not only a cherished right but is also an essential safeguard of other rights. In the Black communities of Cancer Alley, a polluted industrial corridor in Southern Louisiana, the state’s critical infrastructure law has rendered protest on or near the region’s ubiquitous industrial infrastructure a felony. This Note describes the history of critical infrastructure laws in states across the country, as well as the legal challenges brought against critical infrastructure laws and their counterparts. Louisiana’s critical infrastructure law, when intersected with environmental racism, has the potential to disproportionately criminalize protest in Black communities. Equal Protection and First Amendment law do not adequately address this disproportionate censorship of Black communities based on their high concentration of environmental hazards. This Note proposes two solutions: first, Arlington Heights may be read to allow the historical context and history of segregation in a region act as evidence of discriminatory intent; second, Time, Place, and Manner doctrine can be easily expanded to incorporate issues of racial geography.
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JD Candidate 2022, Columbia Law School; B.A. 2019, New York University.
Prosecutors play a central role both in weaponizing personality disorder labels in capital cases and in oppressing Black, Indigenous, and People of Color (“BIPOC”) within the criminal legal system. This is especially true for antisocial and psychopathic personality disorder labels. Because there are common mechanisms underlying both processes, it is possible that prosecutors’ misuse of these personality disorder labels is susceptible to racialization. Thus, we may contextualize prosecutors’ exploitation of personality disorder labels in capital cases within the larger historical project of upholding white supremacy and subjugating people of color.
As long as the death penalty is vulnerable to implicit biases held by agents within the criminal legal system and subject to racially disparate applications, lawmakers must implement change. Lawmakers must transform the death penalty through implementing evidentiary, educational, and disciplinary safeguards that target each actor involved in these decisions. If these precautions, collectively, are not sufficient, lawmakers must abolish state and federal governments’ power to execute their citizens.
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J.D. Candidate 2022, Columbia Law School; B.A. 2016, Middlebury College.
This Note presents the first contemporary empirical study of racial disparities in New York City Police Department (“NYPD”) discipline. Historically, the NYPD, like many departments across the country, applied its enormous disciplinary discretion in secrecy. That changed in June of 2020, when New York City publicly released thousands of civilian complaints and disciplinary decisions. Analysis of these newly released data reveals significant racial disparities in discipline of police officers. More fundamentally, these data demonstrate the NYPD’s extreme leniency towards police misconduct of all kinds and its disregard of recommendations by the Civilian Complaint Review Board. These findings call for greater transparency in New York and around the country. Greater transparency will encourage participation by both officers of color and the public in discourse about police reform, leading to shifts in public opinion and playing an essential role in the pathway to police abolition.
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