Issue 19.3


Making the Anomalous Even More Anomalous: Hosanna-Tabor, the Ministerial Exception, and the Constitution
Mark Strasser

In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. This Article discusses both the case and the background jurisprudence. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the lower courts and to greater inconsistency in the judgments issued when religious employees have allegedly been subjected to prohibited discriminatory practices. Further, by mischaracterizing past jurisprudence, the Hosanna-Tabor Court has muddled what was previously fairly clear case law, and thus has not only put a wide range of religious employees at risk but has made the Religion Clauses jurisprudence even less understandable overall.

In Fear for Her Life: How Applying the Forfeiture by Wrongdoing Doctrine to Shield Witness Identities Could Leave Endangered Witnesses Out in the Cold
Liza I. Karsai

This Article responds to scholarship suggesting that the forfeiture by wrongdoing doctrine be expanded to permit fearful witnesses to testify anonymously or wearing a disguise. Expanding the forfeiture by wrongdoing doctrine would prove troublesome and would be both over and under-inclusive in its protection of witnesses who are at risk of retaliation or retribution. This Article also discusses the due process implications of such an expansion of the forfeiture by wrongdoing doctrine. A better solution to the problem of endangered or threatened witnesses balances the rights of the defendant against the need for witness protection in each case.

“Just Trying to be Human in This Place,” Too: From Inside the Law School Classroom to
Kate Nace Day and Russell G. Murphy

Five years ago, the latest in a long line of studies and research projects that critically examined American legal education were published. The Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of Law, and the empirical research findings of linguistic anthropologist Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer,” identified many shortcomings and negative consequences that result from the traditional pedagogy of the American law school classroom. In this Article, Professors Kate Nace Day and Russell G. Murphy explore some of the findings of these studies in the context of their experimentation with the use of storytelling, feature films, and documentaries in upper-division law classes. Beyond critical analysis of in-class film screenings, the Authors have integrated actual productions of small-scale documentary projects into the classroom experience to produce new forms of exposition describing and explaining law and to develop new methods of understanding and teaching law. Further, in light of Mertz’s findings on disturbing silences in the classroom, the Article explains how storytelling and film may create a more inclusive classroom by transforming the vision of law received by outsider students. The Article concludes by extending this work to broader types of community education and activism through the Authors’ new website,


In-State Tuition for Undocumented Students: Fueling the State-Federal Battleground
Jennifer Joy Lee

In the last decade, state legislatures have enacted sweeping laws touching various aspects of the lives of immigrants, both documented and undocumented. These laws diverge widely in their treatment of the undocumented and range from granting in-state tuition eligibility to those immigrants who have fulfilled high school graduation requirements, to more hostile attempts by states to control unwanted migration, as exemplified by Arizona’s controversial S.B. 1070. What these laws have in common is their bold reach into the sphere of immigration law—an arena in which the federal government’s power has been declared plenary. This Note will explore federal preemption challenges to state statutes granting in-state tuition eligibility to undocumented immigrant students—a population that has grown rapidly in recent years. This Note will consider the significance of the Supreme Court’s denial of certiorari in the legal challenge arising one of these statutes, California’s A.B. 540, and its grant of certiorari to consider enforcement-centered Arizona’s S.B. 1070. Finally, this Note will discuss the bearing these certiorari decisions have on the success of federal preemption challenges to state tuition laws benefiting students who are undocumented immigrants.

Issue 19.2


Resolving the Compelled-Commercial-Speech Conundrum
Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two-compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape. This Article proposes a principled means to resolve these questions with a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

Asperger’s Syndrome and Eligibility Under the IDEA: Eliminating the Emerging “Failure First” Requirement to Prevent a Good Idea from Going
Lisa Lukasik

Establishing a child’s eligibility for services and protections under the Individuals with Disabilities Education Act (IDEA) requires “a difficult and sensitive analysis.” This is particularly true when a child’s family and her school agree that she has a disability that could qualify her for special educational benefits under the Act, but disagree about whether that disability in fact renders her eligible for those benefits. Such disagreements highlight a gap in the federal law that several circuit courts of appeal recently filled with a requirement that children with disabilities who also receive passing grades in school, like many children with Asperger’s Syndrome, “fail first” academically before they may qualify as “a child with a disability” eligible for services and protections under the Act. This Article is among the first to consider the Asperger’s Syndrome example in the context of these decisions. It argues that recent restrictive constructions of regulatory definitions of IDEA-eligible disabling conditions frustrate the purpose of the IDEA, create an unnecessary constitutional vulnerability in the Act, and fly in the face of public policy supporting preparation of “all children with disabilities” not only to get good grades in school, but also for “employment and independent living” as productive citizens in their communities. It also proposes a more inclusive understanding of the phrase “child with a disability” under the IDEA to better serve the statute’s expressed educational and societal goals.

The Shifting Doctrinal Face of Immutability
Tiffany Graham

This Article will examine the concept of immutability as it has been used in equal protection jurisprudence, particularly in the context of the gay rights movement. As a traditional matter, immutability was viewed as a doctrine that limited suspect and quasi-suspect classification status to those groups whose identities were fixed in some visible, often biological fashion. This narrow understanding of immutability served a purpose: it limited suspect or quasi-suspect status to those groups of individuals who were not at fault in some way for the subordinate condition in which they existed. Since the decisions in In re Marriage Cases, Kerrigan v. Commissioner of Public Health, and Varnum v. Brien, the concept of immutability has undergone a significant change: immutable characteristics are no longer limited to those traits that a person cannot change, but also include characteristics that a person should not have to change. This new understanding of immutability expands the definition of the concept, but it also accomplishes two important goals: (1) it moves past a fault-based model of immutability that generally seeks to exclude from protection groups whose moral culpability or personal responsibility are the cause of their condition, and (2) it moves toward an autonomy-based model of immutability premised on a respect for human dignity that protects critical constitutive aspects of personhood, which allows courts to offer heightened-scrutiny protection to groups whose public identities are often not obvious.


Giving Disabled Testers Access to Federal Courts: Why Standing Doctrine is Not the Right Solution to Abusive ADA Litigation
Leslie Lee

Over twenty years after the enactment of Title III of the Americans with Disabilities Act (“ADA”), its promise of providing access for the disabled to places of public accommodation has remained unfulfilled. This likely stems from the wide under-enforcement of Title III; though Title III creates a private right of action for disabled individuals to sue for enforcement, the few individuals who do bring suit are often turned away for lack of standing. Perhaps these suits face skepticism and harsh scrutiny from courts because Title III suits are viewed as a “cottage industry” formed by a few profit-driven individuals who have no interest in actually removing barriers to access. Standing, however, is not the right solution for curbing these abusive practices.

This Note will argue that ADA “testers,” disabled individuals who travel across the country searching for ADA violations and bringing suit, should have standing to sue under Title III. The statutory language and legislative history of Title III suggest that Congress intended for testers to have standing to sue, and traditional standing doctrine as applied to Fair Housing Act and equal employment testers suggest that testers should have standing. This Note will argue that the primary reason for skepticism towards ADA testers stems from practical problems with the application of Title III – specifically an under-enforcement problem and a professional plaintiff problem. The under-enforcement problem stems from the lack of incentive for most disabled individuals to bring suit, and the small number of lawyers with the Attorney General who are dedicated to ADA suits. The professional plaintiff problem arises because, in order for Title III suits to be worthwhile for a plaintiff and his or her attorney, they must file many suits against many places of public accommodation, which often results in profit-driven, rather than access-seeking, litigation. These problems can be resolved by revising Title III to clearly give testers standing to sue, and employing other mechanisms, like attorney’s fee-shifting, vexatious litigant sanctions, and compliance certification, to curb abusive litigation.