Recent Articles in Volume 77, Issue 4 (2024)
By Charles A. Sullivan – At the end of last term, Groff v. DeJoy “clarified” an earlier Supreme Court decision that had largely nullified Title VII’s duty that employers reasonably accommodate their workers’ religious practices by virtue of a very broad interpretation of a statutory exception. That exception permitted denying accommodation when the result would be “undue hardship,” and the Court in the earlier case had described that defense as triggered whenever the accommodation would impose “more than de minimis” costs. This atextual reading had the effect of largely erasing the duty, and over time became increasingly out of sync with the Court’s religious liberties decisions in other areas of the law. []
By Alexander Gouzoules – Accounts of American litigation pose a contradiction: forum shopping is acceptable, but judge shopping is not. Formal disfavor toward judge shopping is pervasive, and attempts by parties to manipulate the assignment of their case are deemed abusive and even sanctionable. Nevertheless, sophisticated judge-shopping tactics have proliferated in specific areas of the law—particularly in challenges to executive-branch policies and in the reorganization of large companies under Chapter 11. In these disparate areas of law, judge-shopping strategies have been deployed in high-profile cases, ranging from a challenge to the FDA’s authorization of an abortion drug to the opioid-driven bankruptcy of Purdue Pharma. In these cases, and in others like them, plaintiffs used permissive venue rules to reach small geographical divisions where a single, preferred judge hears all, or nearly all, cases. These trends led to recent and contested proposals by the Judicial Conference to encourage random assignment. []
By Jesse Cheng – The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial. But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts. This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to aggravating evidence offered by the prosecution when making the case for death. []
By Srividhya Ragavan – ost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. []