Current Commentaries
Volume 78
Spring 2026
TRUMP V. CASA, INC. AND THE FUTURE OF NATIONWIDE INJUNCTIONS [New]
Alberto Bernabe
In Trump v. CASA, Inc., one of the most anticipated U.S. Supreme Court decisions of 2025, the Court intended to end the authority of federal judges to issue so-called “nationwide injunctions.” However, not only did the Court’s opinion not do that, it may have actually opened the floodgates to a new alternative way for plaintiffs to get nationwide relief. For this reason, the lasting influence of the Court’s decision is in doubt. Individuals seeking to challenge government policies that affect people at a national level now have two strategic options: to seek a nationwide injunction claiming it is needed to obtain complete relief, or to file a class action lawsuit seeking certification of the claimants as a national class, and then seek an injunction to protect the class. Thus, although it might be too soon to tell, in the end, the decision in Trump v. CASA, Inc. may turn out to be essentially irrelevant. Yet, this may not be a bad result because otherwise, the executive would be free to enforce unconstitutional policies without an efficient check by the judiciary.
Fall 2025
UNDERSTANDING FREE SPEECH VALUES AT THE SUPREME COURT
Noah C. Chauvin
This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court’s free speech jurisprudence, and that through the power of precedent, we have come to have a “Millian” First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court’s free speech jurisprudence is “Millian,” because that could mean many different things. Understanding with greater precision what motivates the Justices in free speech cases is crucial for attorneys, advocates, and scholars.
VICTIM RESTRICTIONS: INCONSISTENCY IN RAPE VICTIM ABORTION ACCESS
Thomas Stimson
Sexual violence is as uncomfortable a topic as it is a prevalent occurrence. Our society treats individuals who become pregnant because of their victimization with a unique pity reserved for only the truly innocent. However, a victim’s right to relief from such a crime and their right to reproductive health are now at odds in the post-Dobbs political atmosphere. Beginning in the 1970s, bipartisan support swelled to protect crime victims in what scholars call the Victims’ Rights Movement. At the same time, the Supreme Court was developing its view of abortion access as a privacy right. While the Victims’ Rights Movement may have left the political zeitgeist, the right to abortion has swirled from a protected privacy right to a moral debate of innocence. This view of guilt and innocence becomes even more complicated when states seemingly abandon the widely popular rape and incest exception for abortion access. Separated by decades of legislation, some states now face a conflict between their professed commitment to the rights of crime victims and the rights of the unborn. In addition to drawing attention to these inconsistencies, this commentary posits that how we choose to address these conflicting rights expands far beyond social injustices furthered by abortion bans.
Volume 77
Summer 2025
Robinson Woodward-Burns
The Thirteenth Amendment outlaws slavery and involuntary servitude except “as a punishment for crime whereof the party shall have been duly convicted.” Jim Crow Southern state lawmakers used this “punishment clause” to lease Black convicts to infrastructure and agriculture projects in a system some scholars call “slavery by another name.” This paper traces the punishment clause to the earlier state constitutions of the Old Northwest. From the founding to the 1850s, upper Midwest state lawmakers used state constitutional punishment clauses to distinguish convict laborers, often white, from Black slaves and indentured servants, affording protections to the former. These Northern punishment clauses informed the framers of the Thirteenth Amendment in Congress and of matching state punishment clauses in Reconstruction-era Southern conventions. Only with Jim Crow did Southern state lawmakers co-opt the clause to entrench Black convict labor. By tracing this history, we can see how nineteenth-century lawmakers used state constitutional punishment clauses to distinguish free and enslaved labor and clarify that convicts were not slaves.
Spring 2025
SECRETS LEFT BEHIND: THE DTSA’S MISSED OPPORTUNITY TO FEDERALIZE INEVITABLE DISCLOSURE
Jeffrey Midose
Historically, within the domain of state law, the inevitable disclosure doctrine (“IDD”) has seen new prominence in federal jurisprudence. In 2016, President Barack Obama signed the Defend Trade Secrets Act (“DTSA”) into law, creating a federal civil cause of action for claims of trade secret misappropriation. One of the effects of the DTSA is the federal recognition of the IDD. Although the DTSA expressly forbids courts from blocking employees from entering an employment relationship, federal courts have still temporarily enjoined defendants from entering new employment under the DTSA.
The purpose of this Commentary is to advocate for an amendment to the DTSA’s statutory language to bring about uniformity in the application of the IDD. This proposed amendment is primarily based on the newly reformed Massachusetts Uniform Trade Secrets Act (“MUTSA”). The MUTSA looks at a defendant’s “prior [] conduct and circumstances of potential use” when applying the IDD. Adopting the MUTSA’s IDD language would allow the DTSA to better conform with Congress’s original legislative intent for the statute, would reduce judicial confusion and ambiguity in the application of the doctrine, and would create a uniform approach as trade secret use grows in prominence within the United States.
Mia Banks
Financial capital is one of the necessary resources required for businesses to start and operate. While many entrepreneurs start their businesses using personal or family wealth, the lower personal wealth levels of many Black and Latinx entrepreneurs make them more likely to rely on personal credit cards to finance their business creation. The United States’ deeply rooted history of structural inequities in access to adequate housing, employment, justice, education, healthcare, and the like, in tandem, has impacted the levels of wealth held by marginalized individuals in America. Additionally, a reluctance by banks to service businesses in moderate-low-income communities has robbed their members of investment opportunities and suppressed their development.
To combat this issue, Congress enacted legislation that encourages financial institutions to reinvest in the communities where they operate, which includes moderate-low-income communities. However, in affording banks discretion over whom to lend to, the legislation has effectively exacerbated the existing racial and ethnic disparities in access to capital, as banks remain unwilling to loan to businesses owned by Black, Latino, and Hispanic individuals.
This Commentary argues that by enacting facially neutral laws that reflect private discrimination by banks when applied, Congress has violated the Fourteenth Amendment’s Equal Protection Clause. This Commentary also introduces a proposal for the implementation of a federal mandate on financial institutions to reinvest in the communities where they operate, to effectively guarantee the financial services sector will no longer underserve moderate-low-income communities but provide their members with the financial capital they need to start and operate their own businesses.
Fall 2024
SPINNING OUR WHEELS: WHY OFFSHORE WIND PROJECTS STALL AND HOW TO SPEED UP THE PROCESS
Sam Little
Halloween 2023 was a truly scary day for offshore wind. Ørsted canceled the United States’ largest offshore wind projects, Ocean Wind 1 and Ocean Wind 2, shaking the renewable energy sector and undermining climate goals set by state and federal governments. Once thought to be too big to fail, this paper examines the legal, regulatory, and policy shortcomings that led to their demise and proposes reforms to support offshore wind growth.
Every level of government must make changes to support the transition to renewable energy. The Department of Interior must reimagine its administrative procedures by frontloading programmatic environmental impact statements and expanding BOEM staff to reduce risk. Congress and the Treasury must provide clear tax credit eligibility guidance and shift to direct subsidies. New Jersey and local governments should negotiate flexible agreements and update municipal plans for offshore wind development. By addressing these challenges, policymakers can foster a more conducive environment for offshore wind projects.
Saturday Zammit
The internet promises a cure for anything, but advertising laws usually keep such claims in check. However, some escape scrutiny—such as unregulated prescription drug advertisements. During the pandemic, telemedicine platforms emerged, allowing potential patients to “apply” for prescription drugs after being lured in by extensive advertising. These ads explicitly name prescription drugs, which normally triggers strict disclosure requirements to inform consumers of potential risks. Yet, telemedicine advertisements are exempt from these rules.
Prescription drug ads should follow standard advertising guidelines. The FDA traditionally regulates prescription drug advertising, but its enforcement has limitations. To address these gaps, the FTC’s expertise in advertising regulation should be leveraged. A regulatory framework where the FTC enforces the FDA’s standards would create a more effective system, ensuring these platforms cannot bypass critical consumer protection laws.
