Nantiya Ruan

Universities are workplaces replete with observed gender pay gaps despite the legal protections in place to mitigate against such a reality. This Article analyzes recent university gender pay equity lawsuits to examine their efficacy in four types of litigation: (1) Class and Collection Action; (2) Government Action; (3) Union Action; and (4) Individual Action. From these case studies of different types of litigation, we learn several important lessons about prosecuting equal pay laws and how to best protect against unequal pay. Continue reading →

Jonathan P. Feingold

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.
The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural extension of SFFA and decades of conservative caselaw hostile to remedial reform. Continue reading →

Stephen Clowney

Rural communities are at a crossroads. On one hand, small towns continue to receive robust support from the federal government. Congress sends billions of dollars in agricultural support, homeownership subsidies, and infrastructure spending to rural places every year. Yet, despite ongoing federal investment, conditions in rural America have deteriorated. Economic growth, educational opportunities, and health outcomes in rural places all lag behind the rest of the country.

This Article asks what has gone wrong. Why do rural communities continue to lose ground despite such significant outlays from Congress? This Article contributes to the ongoing debate about the future of the countryside by highlighting one previously unexamined fault in the ongoing efforts to revitalize rural America: proponents of rural communities—in both think tanks and government agencies— have rarely been forced to enumerate the benefits that the countryside provides. Defenders of small towns simply assume that saving rural places is worthwhile. But why? The lack of clarity matters. Rural people are suffering, at least in part, because policymakers do not have a clear view of why small towns are important or how they can compete with cities. Continue reading →

Jeffrey Omari, Pablo Rueda-Saiz & Richard Ashby Wilson

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR’s unique methodological and substantive contributions, we explore the movement’s relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, crossnational exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of “looking up, down, and sideways.” Notably, NLR embraces both “top-down” and “bottom-up” methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. In contrast to perspectives that narrow the law to a mere instrument of social control, NLR recognizes that the law is a complex and nuanced social phenomenon with relative autonomy that often leads to unintended consequences. Continue reading →

E. Gary Spitko

This Article explores the important but largely unexplored relationship between workplace artificial intelligence (AI) and human flourishing. More specifically, the Article examines the potential impact of workplace AI decision tools on such critical matters as workers’ human dignity, workplace and personal autonomy, and the opportunity for upward mobility. AI can analyze data far more quickly and efficiently than humans. Moreover, AI computer models are far superior to people in uncovering subtle correlations in large amounts of data and learning from those correlations. Thus, workplace AI decision tools teach themselves to choose the criteria for recruitment, hiring, compensation, promotion, and termination of workers and ground their employment decisions firmly in empirical data that humans fail even to perceive. At the same time, these AI tools may insult human dignity, threaten worker autonomy, and serve as an agent of social ossification. Continue reading →

William S. Fallon

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of your private accounts and data. If enforcement technologies continue to develop apace, under existing law, government will be able to detect—and punish—every instance of illegal behavior, every time, without violating the Fourth Amendment. This imminent, staggering government power is called “perfect enforcement of law.” Continue reading →

Florence T.B. Simon

In March 2023, the Intergovernmental Panel on Climate Change (IPCC) released its Sixth Assessment Report and confirmed unequivocally that human activities are the cause of climate change. Greenhouse gas emissions over the next few years are capable of causing irreversible and catastrophic damage to our planet. Catalyst litigation plays an important role in tackling climate change by prodding governments to assume a role in implementing adaptation and mitigation measures. Despite the extreme consequences that climate change will have on humanity, jurisdictional issues—such as standing—impose considerable hurdles for climate litigants. And these hurdles ultimately keep plaintiffs from obtaining a ruling, or even a discussion, on the merits of their case. Continue reading →

Casey M. Corvino

Words often carry an intuitive meaning that defies explicit definition. While this vagueness typically poses no issue in our daily lives, it presents distinct challenges within the legal realm where words and their definitions wield the power to influence the course of justice. One abstract concept is notoriously elusive: what is an accident? Despite the apparent simplicity of identifying what is commonly understood implicitly, there are inherent challenges in “giving substance to a concept which is largely intuitive.” Continue reading →

Laura Briggs

In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents to try to put an end to this and all related statutes that give so-called “preferential treatment” to American Indians—including in gaming compacts, employment, federal treaties, and essentially all of Indian law. Continue reading →

Ian Heath Gershengorn

In this Essay, as I did at the Connecticut Law Review’s Symposium, I draw on my experience representing Tribes in Haaland v. Brackeen to discuss more broadly the effective presentation of tribal arguments to the Court. I touch briefly on four main topics. First, I discuss how we collaborated with amici to ensure that the Court would have the full context as it considered the issues in Brackeen. Second, I discuss how we thought about preparing for the argument and the particular importance of understanding the practical operation of the Indian Child Welfare Act. Third, I offer a few observations on the oral argument itself, focusing on how the structure of the argument influences the substance of the argument. And fourth, I step back and discuss why this is a particularly interesting and challenging time to argue Indian law cases before the Supreme Court. Continue reading →