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Volume 110 | Issue 1

Antisubjugation and the Equal Protection of the Laws

Evan D. Bernick

For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. It then contends that constitutional doctrine should be reconstructed to realize the Constitution’s promise of “the equal protection of the laws.”

Grafting Traditional Knowledge onto a Common Law System

Ruth L. Okediji

Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic resources and medical knowledge, demeaning of their sacred symbols, and further alienation from their culture and land following colonial dispossession. Indigenous groups have therefore sought greater protection of traditional knowledge through a range of domestic and international legal avenues. This Article examines the experience of Australia as the common law jurisdiction that has likely gone furthest in protecting traditional knowledge. Aboriginal Australian claimants have found varying degrees of success through mechanisms such as copyright law, patent law, consumer protection, fiduciary claims, and privacy rights. Even at their most successful, however, these claimants have not obtained recognition of the unique interests represented by traditional knowledge. Instead, they have been forced to translate their claims into terms close to the conventional utilitarian or personality-based justifications for intellectual property. Australia therefore illustrates the potential of a common law system’s ability to incrementally adapt to novel claims—but also that system’s ultimate inadequacy.

Nixon/Trump: Strategies of Judicial Aggrandizement

Josh Chafetz

In Trump v. Vance and Trump v. Mazars, the Supreme Court applied very different standards for subpoenas issued for the personal papers of the president, making it easier for a grand jury to acquire such materials than a congressional committee. The two opinions, both authored by Chief Justice Roberts, have been widely praised for suggesting that the president is not wholly above the law; indeed, they have been treated as the second coming of the Nixon Tapes Case.

This Essay argues that while the Trump subpoena cases do have an important kinship with the cases concerning access to White House tapes during Watergate, this similarity is not quite as flattering as commentators imagine. What the cases surrounding access to Donald Trump’s financial records and the cases surrounding access to Richard Nixon’s White House tapes have in common above all else is a project of judicial self-empowerment at Congress’s expense. What distinguishes them, on the other hand, is the immediate result of the two sets of cases: whereas the Nixon Court acted to push a lawless president out of office, the Trump Court acted to ensure that the information sought by other institutional actors could not have electoral consequences for another lawless president.

From “Hearing” to Listening: Access to Justice and Indirect Displacement

Emily McWey

When local government policies cause households and communities to become homeless, those affected are entitled to due process. Yet when the government displaces households through zoning-induced gentrification, it often acts as the perpetrator of the harm, adjudicator of disputes, and favored party on appeal. Regardless of the merits of such disputes, that process raises prohibitive access-to-justice barriers.