Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website.
The article posits that the proper interpretation of the Women’s Health and Cancer Rights Act includes breast cancer-suffering women’s right to insurance coverage for reconstruction after partial, as well as full, mastectomies. Additionally, the article argues that the question of whether the Act contains a private right of action separate from ERISA should be revisited.
Prompted by the violent events at the August 2017 white supremacist protest in Charlottesville, Virginia, this article argues that state and local officials have significant latitude to enact and enforce laws that restrict the intimidating display of firearms at public demonstrations and protect people’s rights to speak freely and to peaceably assemble.
In the last twenty years, the concept of legitimate expectations has come to play a very prominent role in international investment treaty-based arbitration. This article explores what insights investment law scholars can gain from authors in the fields of critical race theory and settler colonial studies, who have examined the use, and implications of the use, of the concept of expectations in...
This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations.
This Essay argues that federal land policy as a form of colonial administration has been constitutive for the logic of expectation as property in the United States. Approaching the Bundy occupations as flashpoints that illuminate competing interpretations and claims to land within the history of westward colonization, the Essay demonstrates the ways in which expectation emerges from particular...
This special issue contains several papers presented at a workshop held at Columbia Law School in May 2017, which brought together investment law scholars to consider the legal construction and protection of expectations as objects of property in varied contexts and areas of law, from federal land policy to international investment law.
The article evaluates the doctrine of protecting investors’ specific-commitment backed-expectations. The author argues that the doctrine has shaky legal foundations and raises fundamental policy concerns. It affects the rules and processes governing allocation of property rights, can exacerbate inequality, and can send wrong signals to investors regarding responsible business conduct.
The “Morality Provision” of trademark law prohibits the registration of trademarks that are immoral or scandalous. This essay exposes how the Morality Provision is abused by individuals who do not have any real interest in the proposed trademark, but who morally disapprove of the trademark owner or its commercial activities.
In recent California litigation, a California Court of Appeals held that California’s greenhouse gas emissions auction was not a form of taxation. This article argues that the court reached the right result. Like the government's sale of any other public resource, emissions auction should not be considered a form of taxation.
Abstract The decision in Fisher II sustained the University of Texas’s use of race in its undergraduate admissions policy, in the face of nearly decade long attack, but on terms that reinscribed the onerous requirements of strict scrutiny on institutions utilizing any form of race-conscious policy. The debate before the Court and the rationales asserted reinforced a framework based on the notion...
In the wake of Donald Trump's refusal to release his tax returns, legislators in at least twenty-three states have released over forty bills seeking to force presidential candidate tax return transparency. This essay addresses whether these state ballot access measures pass constitutional muster and concludes that they do.
Abstract Do white students enjoy an unfair advantage as compared to Asian Americans in admissions to certain universities? This Article explains the proper legal comparison under settled civil rights law for making this determination based on the number of white and Asian American applicants and admits for a given admissions cycle. This Article also raises questions regarding the accuracy of...
Food policy remains one of the main levers by which we can work to address some of the most intractable problems of our time because of food’s effect on health, the environment, and the economy. The article considers the implications of the Trump administration’s policies in this arena.
Abstract What may state legislators do to prevent actions that they believe endanger private property interests and undermine the economic interests of industries important to their constituents? What laws can they enact to restrict the speech of those who disagree with those interests? What limits can they place on free speech in a contest pitting one constitutional set of rights against...