Volume: 56

Amid increasingly divisive culture wars, schools are confronted with unprecedented pressures to ban books that discuss or address topics related to race, gender, and sexuality. Celebrated titles exploring these themes, like Toni Morrison’s The Bluest Eye and Maia Kobabe’s Gender Queer, have been banned in over a hundred school districts across the nation. Depriving young, underrepresented readers of these books, and similar titles, robs them of an opportunity to see themselves represented through these literary works; and for some, it severs a critical lifeline for self-affirmation. Targeted book bans create a hostile environment in which students who reveal their sexual orientation and gender identity, or simply exist in their own skin, risk stigma and exposing themselves to discrimination. Further, the bans limit students’ learning opportunities and deprive them of quality education; studies show that banning diverse or inclusive books is associated with poor academic performance, deficient critical thinking and social awareness skills, and decreased reading engagement.

This Note explores the prospect of challenging book bans as a civil rights violation. Specifically, it addresses whether racially or sexually motivated book bans create a hostile learning environment in violation of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. This Note advocates for an extension of the hostile environment theory and ultimately concludes that because book bans target statutorily protected characteristics, they can pose a legally sufficient limitation on students’ learning so as to violate federal anti-discrimination laws.

The Supreme Court’s narrowing requirement emerged from concerns in Furman v. Georgia (1972) that the death penalty was being implemented in a manner that was arbitrary, capricious, and discriminatory. For many states that continue to exercise the death penalty, the narrowing requirement is satisfied by statutory aggravating factors designed to limit the death-eligible class to the most heinous offenders.

This Note identifies a problem in the construction of statutory aggravating factors that has been severely overlooked and endures today: double counting. Double counting occurs when the statutory aggravating factors duplicate elements of the capital offense. In this context, a finding of guilt can mean an automatic finding of an aggravating factor, resulting in an automatic or mandatory death sentence. This Note contends that the persistence of double counting is due to a misinterpretation of Lowenfield v. Phelps (1988). This Note supports this contention through a comprehensive analysis of state supreme courts’ and lower federal courts’ approaches to upholding the practice of double counting. Finally, this Note provides a strategy to prevent the unconstitutional practice of double counting and to successfully enforce the narrowing requirement.

A picture is worth a thousand words… or likes, or dollars. But is it worth a child’s dignity? Social media’s youngest stars, or kidfluencers, grow up in the eyes of the public. As their parents engage in sharenting—posting one’s child on social media—the kidfluencers lose their privacy, their capacity to create their own reputation, and even their online safety. This Note examines how to provide redress to former kidfluencers whose privacy was traded for social media likes. Part I covers the basics of sharenting and reputation-based law. Part II then covers the problems in regulating sharenting, both in theory and with current proposals. Finally, Part III proposes a new reputational and privacy tort framework that would allow kidfluencers to regain some control over their image.

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and Education Assistance Act of 1975, that have facilitated greater Tribal control over programs and services for Tribal communities, including health systems. Tribally managed health systems can, and are, playing a crucial role in closing this health gap.

This Article also positions the status of Native communities in the United States within the global dialogue on the right to health, as Indigenous Peoples in settler colonial states are demonstrably experiencing similar disparate outcomes. This discussion includes background on the international legal framework for the right to the highest attainable standard of health, the rights of Indigenous Peoples, and the social determinants of health, some of which are arguably unique to Indigenous communities. The Article explores these concepts for the lessons that may be garnered for the benefit of Tribal health systems. It also argues that Tribes that are successfully operating healthcare systems have their own lessons to offer the global community in providing quality care and bringing American Indian and Alaska Native communities closer to actualizing the highest attainable standard of health.

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants’ claims.

How can this be? Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.

This is obviously wrong. Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply. Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.

Constitutional text and history make the wrongness even clearer. The Framers wrote the Constitution precisely to quell the “violence of faction” that the States exhibited under the Articles of Confederation. They understood faction to produce “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.” So the Framers resolved to bind “the judges in every State” to treat the Constitution as the “supreme Law of the Land”; and the Framers gave federal judges—protected by life tenure and irreducible salaries—the “judicial Power” to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions. Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789–1914) and/or habeas corpus (1867–today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress’ or state courts’ reasonable-but-wrong constitutional judgments as “treason to the Constitution.”

New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect “small” businesses and “the citizenry” against politics and special interests. The test of their bona fides is whether they will take the same course in cases of individuals like William Packer and Joshua Frost, both convicted and sentenced to prolonged imprisonment through “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.”

After the Supreme Court’s decision in Richardson v. Ramirez, many believed federal protection against state felony disenfranchisement laws to be dead. However, recently, several litigators in Virginia have revived a set of old, Reconstruction-era statutes to argue that the federal judiciary not only can, but must, curb current felony disenfranchisement practices. Lost to history, this set of statutes, called the Readmission Acts, conditioned all but one of the former Confederate states’ readmissions on the prospect that those states limit future disenfranchisement to “now felonies at common law.”

This Note serves as a first-of-its-kind analysis of the Readmission Acts, sifting through 242 pages of legislative history to shine light on their meaning. First, it traces the history of felony disenfranchisement from Reconstruction until today. It then examines the Acts more specifically, pointing out the powers that Congress could have relied on to pass the Acts, conducting a statutory interpretation analysis to decipher their meaning, and outlining various remedies that courts can pursue for violations of the Acts. Finally, this Note will address some of the arguments against enforcing the Acts, responding to critiques related to the political questions doctrine, sovereign immunity, federalism more broadly, and the equal state sovereignty doctrine. When discussing the equal state sovereignty doctrine, this Note will uplift statements from the Reconstruction Congress that highlight the current Court’s misalignment with the goals of Reconstruction.

Reconstruction wholly changed the nature of the United States legal system. The Acts are a further reflection of that legacy. In addition to changing the landscape of felony disenfranchisement laws in the United States, these Acts also speak to the Reconstruction Congress’s view on federalism, one that the Supreme Court has seemingly abandoned in its current jurisprudence. This Note argues that the Readmission Acts could and should be leveraged to combat modern disenfranchisement.