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Volume 72, Issue 7 (April 2023)

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The Accidental Innovation Policymakers

Rachel E. Sachs | PDF

Health care policymakers in the United States, particularly at the federal level, have recently considered a range of proposals that would lower prices for prescription drugs. The pharmaceutical industry and many politicians have argued that these proposals would harm innovation incentives, resulting in fewer new drugs coming to market in the future. This Article identifies and explores a key problem with this argument: that it is typically deployed both accidentally and asymmetrically in nature. Specifically, this Article considers previous changes to health laws that had the impact of increasing innovation incentives by providing large new subsidies to pharmaceutical companies—chiefly the creation of Medicare Part D and the passage of the Affordable Care Act—but where policymakers appear not to have analyzed these innovation-related aspects of the new laws. By contrasting these laws with others in which policymakers explicitly centered the innovation-related impacts of their actions, such as the Hatch-Waxman Act and the Orphan Drug Act, this Article suggests that policymakers may in some cases be making innovation policy “by accident,” without knowledge of their likely results. These innovation arguments are also deployed asymmetrically by interested stakeholders, creating the potential for unbalanced policymaking over time. This Article further analyzes the implications of this accidental, asymmetric policymaking for innovation law and policy.

Effecting Free Exercise and Equal Protection

Laura Portuondo | PDF

There is an emerging discrepancy in free exercise and equal protection law. For decades, the Supreme Court has maintained that a law’s effects on a protected group are usually insufficient to trigger heightened scrutiny under either the Free Exercise or Equal Protection Clause. This longstanding rule has rendered it virtually impossible to challenge facially neutral laws on constitutional race, sex, and religious discrimination grounds, even where such laws inflict substantial harms on protected groups. Recent free exercise decisions, however, have abandoned this traditional barrier to enforcing constitutional equality rights. In doing so, they have subverted the usual rule that a law’s effects do not much matter, not just under the Free Exercise Clause, but also under the Equal Protection Clause.

This Article argues that recent free exercise law makes a powerful case that a law’s effects both can and should play a meaningful role in triggering equal protection scrutiny. Free exercise and equal protection cases historically relied on the same theoretical and doctrinal principles to dismiss a meaningful role for effects in triggering heightened scrutiny. Recent free exercise law—by providing such a role for effects—has overcome each objection. In the process, it has created a doctrinal roadmap for overcoming the same objections in the equal protection context. It has also provided good reason to do so. Recent free exercise decisions have justified attention to effects by insisting that laws that devalue protected interests merit heightened scrutiny. In doing so, they have endorsed a broad new theory of equality that applies to, and requires attention to effects in, the equal protection context.


Not Up For Deliberation: Expanding the Peña-Rodriguez Protection to Cover Jury Bias Against LGBTQ+ Individuals

Brett V. Ries | PDF

Discrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.

Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” for clear statements of racial bias that significantly motivated the juror’s decision. The Supreme Court has a history of extending protections against racial discrimination in the jury context to sex discrimination, and, in 2020, the Supreme Court ruled in Bostock v. Clayton County that the prohibition against sex discrimination in employment under Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity. Thus, there may be multiple constitutional avenues to expanding the protection granted in Peña-Rodriguez to LGBTQ+ bias in jury deliberations.

This Note argues that such an expansion can soundly be constitutionally granted, particularly when analyzed from an intersectional perspective. Only then can the criminal justice system ensure that LGBTQ+ defendants are punished for what they do, not who they are or who they love.

No Harm, No Problem (In State Court): Why States Should Reject Injury in Fact

Rebekah G. Strotman | PDF

New judicial federalism urges states to extend their constitutional protections beyond the federal Constitution’s. Yet the scholarship has largely ignored justiciability doctrines—including standing—that dictate the requirements for suing in court. Meanwhile, the federal injury in fact requirement has been debated for years, with critics claiming it is ahistorical and overly restrictive. States, though, are not bound by Article III and can reject the federal standing doctrine. Some states have. In fact, the same year the Supreme Court doubled down on injury in fact by stating “no concrete harm, no standing,” the North Carolina Supreme Court rejected injury in fact and adopted a more permissive legal injury requirement. But the North Carolina Supreme Court’s main rationale was that the federal doctrine is wrong itself. This rests on the mistaken assumption that state and federal courts should have the same standing doctrines. On the contrary, states are not tied to the federal doctrine in any way. This Note explains why states should reject the federal doctrine regardless of whether it is right for federal courts: injury in fact addresses uniquely federal concerns. Federal power grew in response to federal crises and political realities, and, in reaction, the Court used injury in fact to pull the federal judiciary back within its intended limits. Thus, the concerns and values underlying injury in fact are inapplicable to states. Instead of adopting injury in fact, states should adopt more permissive standing doctrines. Such doctrines would be consistent with states’ broader judicial power and would effectuate the goals of the new judicial federalism.