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OSLJ Online
2021
Volume 82
OSLJ Online
Boaz Sangero
Safety in Forensic Science

Using DNA comparisons, the Innocence Project has shown that people are occasionally convicted based on flawed forensic science evidence. A National Academy of Sciences (NAS) report determined many areas of forensic science lack sufficient scientific foundation...

OSLJ Online
Phil Malone
Antitrust Gaps, Income Inequality, and Principled Reforms: A Response to Professor Elhauge

These are extraordinary times for antitrust law and enforcement policy. One would not be mistaken in thinking that antitrust is having more of a “moment” than at another time in recent decades. Government antitrust investigations of, and lawsuits against, Google, Facebook, Amazon, and Apple in the United States and Europe are proliferating. A major private antitrust lawsuit against Apple was recently tried...

OSLJ Online
Benjamin M. Flowers
A Short Essay Proposing a Test for Unlawful Executive Legislation

This short essay addresses the following question: what test should courts use to identify actions by the federal government’s executive branch that are unlawfully legislative in nature? I will attempt to answer that question from an originalist perspective. And so I will begin by explaining the problem from an originalist perspective. Most originalists, I think, would agree with the following three propositions...

OSLJ Online
Marc Spindelman
The Shower’s Return: An Essay on the LGBT Title VII Sex Discrimination Cases

“The Shower’s Return” takes a close look at the litigation leading up to the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia, holding that lesbian women, gay men, and trans people are legally entitled to the sex discrimination protections afforded by Title VII of the 1964 Civil Rights Act.

OSLJ Online
Tristan Akers
At a Crossroads: LGBT Employment Protections and Religious Exemptions After Bostock V. Clayton County

In January 2003, Gerald Lynn Bostock was hired by Clayton County Georgia as a Child Welfare Services Coordinator for the Juvenile Court of Clayton County. Over the next ten years he received numerous commendations and was, in every respect, a model employee. In January 2013, Gerald joined a local...

OSLJ Online
Jacob A. Sandstrom
Fighting the Pandemic of Preemption: Local Governance and Home Rule in the Aftermath of COVID-19

Local public health measures were flashpoints from the very beginning of the COVID-19 pandemic. Some local governments passed restrictions that were more protective of public health than their respective state governments. And some state governments took the drastic step of prohibiting local public health action. Although these tiffs played out through a political lens...

OSLJ Online
Tung Yin
Are Losing Arguments Completely Irrelevant to the Equal Access to Justice Act? A Response to Professor Krishnan

Suppose an asylum seeker is denied asylum by an immigration judge and, on appeal, the Board of Immigration Appeals affirms that denial. The asylum seeker then raises multiple grounds for relief in a petition for review in federal court, and the court agrees on some but not all of those grounds, ultimately reversing…

OSLJ Online
Nancy S. Marder
What do Prosecutors Think about Batson?

 Anna Offit, a law professor and legal anthropologist, has published Race-Conscious Jury Selection, a qualitative study of prosecutors’ views of jury selection, which makes an important contribution to the literature on Batson v. Kentucky. By observing prosecutors during jury selection and by interviewing them about the ways in which they believe Batson…

OSLJ Online
Heather Payne
Rhinoceroses Are Not Like Sneakers

By any measure or screenwriter’s fantasy, 2020 is a disaster movie. Over 397,000 Americans are dead as the result of a global pandemic. The Atlantic hurricane season has been the most active ever recorded, and skies in San Francisco turned an otherworldly orange for multiple days due to wildfires. It seems that the…

OSLJ Online
H. Cole Hassay
Originalism and Presumptions of Generality in the Ninth and Tenth Amendments

Originalism has a problem. It grounds its legitimacy in being the method that most constrains judges from exercising arbitrary discretion. Yet, when faced with conflicting historical evidence favoring both broad and narrow readings of constitutional provisions, originalists have no principled way of choosing between the two. They must make an arbitrary decision.…

OSLJ Online
Kent Steinberg
Reframing Garcetti: How a Context-Heavy Analysis Protects Witnesses from Government Retaliation

A woman takes the witness stand in a divorce proceeding. She works as a secretary in a government agency and testifies about the character of one of the higher-ups, a man named Bob. She doesn’t work for Bob directly and only encounters him infrequently in the workplace. After she gives testimony about…

OSLJ Online
Steven Foster
Does the Multistate Bar Exam Validly Measure Attorney Competence?

The year is 2020 and chaos reigns. The year began with wildfires destroying millions of acres across Australia and proceeded to the worst viral pandemic in history. By December, more than 63 million people worldwide had contracted COVID-19, a respiratory virus, and 1.47 million had died. Shutdowns designed to stop the virus’s spread spawned business closures, job losses, and economic hardship. In the United States, the callous murder of George Floyd prompted months of protests and a long overdue reckoning with racial injustice. A hotly contested presidential race, combined with the incumbent’s refusal to concede, heaped still more anxiety on the public.

OSLJ Online
David A. Andersen
Second Thoughts: A Response to David A. Logan’s Rescuing Our Democracy by Rethinking New York Times v. Sullivan

New York Times v. Sullivan (NYT) was not wrongly decided. In its time and context, it was a necessity. I do not understand Professor Logan to be saying otherwise; his point is that the time and context are very different now, and what may have been right in 1964 may be…

OSLJ Online
Eric Berger
Death Penalty Administration: A Response to Alexandra Klein’s Nondelegating Death

Professor Alexandra Klein’s excellent new article, Nondelegating Death, makes an important and original contribution. State method-of-execution statutes, she points out, afford very broad discretion to administrative agencies to craft and implement execution protocols. These statutes, she argues, raise questions under states’ nondelegation and separation of powers doctrines. Whereas the U.S. Supreme Court…

OSLJ Online
Helen Norton
Government Falsehoods, Democratic Harm, And the Constitution

The government’s lies inflict injuries that differ in both degree and kind from those caused by nongovernmental parties’ lies. In other words, the government’s intentional and reckless falsehoods threaten distinct and especially serious harms—both to individual targets and to the public more broadly—precisely because of their governmental source. How, if at all…