Administrative Law

The Ascent of the Administrative State and the Demise of Mercy

Vol. 121 No. 5 There are currently more than two million people behind bars in the United States. Over five million people are on probation or some other form of supervised release. Prisoners are serving ever-longer sentences. Presidential and gubernatorial grants of clemency are rare events. The use of jury nullification to check harsh or overbroad laws is viewed by judges and other legal elites with suspicion. These are punitive, unforgiving times.
Civil Rights

(Un)Covering Identity in Civil Rights and Poverty Law

Vol. 121 No. 3 The effective delivery of scarce legal goods to disadvantaged clients requires more than the provision of equal access, case-by-case representation, and zealous advocacy. Scarcity requires that effective legal change be measured not by the outcomes of individual cases, but rather by the progress of social change: specifically, by the degree to which individual clients are able to collaborate in local and national alliances to enlarge civil rights and to alleviate poverty. This Essay argues that, by incorporating the theory of “covering” into their work, legal practitioners in civil rights and poor people’s movements can facilitate such collective action. This Essay also makes the general claim that forming links between theory and practice should be a principal goal of clinical and nonclinical legal education.
Constitutional Law

Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs

Vol. 120 No. 7 Part I argues that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The lethal self-defense right has constitutional foundations in substantive due process, in state constitutional rights to defend life and to bear arms, and perhaps in the Second Amendment. But even setting aside those constitutional roots, the right has long been recognized by statute and common law. Even if the Supreme Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people’s medical self-defense rights just as they protect people’s lethal self-defense rights. While a legislature need not fund people’s self-defense, it generally ought not substantially burden people’s right to defend themselves.