Section 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges and incidents” of slavery. What constitutes an incident of slavery is clear: the incidents of slavery are the legal restrictions, such as submission to a master and a ban on the ownership of productive property, that were inherent in the institution of slavery itself. What constitutes a badge of slavery is far less certain, and relatively few legal scholars have examined the historical meaning of the metaphor. Nevertheless, there has emerged a renewed interest in Section 2, such that the literature now abounds with proposals for eliminating contemporary badges of slavery. Section 2 has been cited as grounds for addressing hate speech, the removal of Confederate monuments, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, sweatshop labor, and more.
Yet there is a widening gulf between those who invoke the badges metaphor in support of contemporary legislative proposals and those who have examined the history of the metaphor itself. For legal scholars like Jack Balkin, Akhil Amar, Alexander Tsesis, and Andrew Koppelman, the badges metaphor can be used to characterize a number of present day injustices, injustices that Congress can address via its Section 2 authority. Lending support to this view is a series of modern cases, beginning with Jones v. Alfred H. Mayer Co., in which the Supreme Court of the United States held that Congress may “determine what are the badges and the incidents of slavery” and “translate that determination into effective legislation,” subject only to rational basis review. If this view is correct, Congress’s Section 2 authority is more expansive than is commonly recognized and Section 2 can be used to address a number of contemporary injustices.

Nicholas Serafin*

*Assistant Professor of Law, Santa Clara University School of Law.

The Chevron doctrine enables courts to defer to authoritative, legally binding agency interpretations of ambiguous statutes. Though more frequently applied when reviewing rulemaking, the doctrine is actually more powerful when applied to an adjudication. In an adjudication, the agency can attach consequences to past actions made before the interpretation announced in the adjudication itself. Since such a determination will receive deference on review, this declaration effectively becomes a new rule, having gone through neither public notice or public comment. Not only does it become a new rule, it becomes a new rule that is effective retroactively. It is illogical to have a system that gives more power to a less democratic process, and Chevron deference should therefore not apply to adjudication.
The notice and comment process that Chevron more typically defers to is the best method yet devised to enable an agency to benefit from not only its own expertise but that of the general interested public as well. Public comment can point out potential problems with the agency’s preferred approach that the agency has not otherwise foreseen as well as present solutions not yet considered by the agency.
This type of input could be beneficial for ambiguities that come to light in an adjudication as well as those initially addressed in rulemaking. Agencies should therefore be encouraged to undertake rulemakings when ambiguities arise in adjudications. But because of the retroactive nature of adjudication itself, these rules would need to (at least potentially) be used retroactively in the adjudication that gave rise to them, or there would be no incentive for the agency to undertake the delay and effort of the rulemaking.

This Article argues that not only should adjudications not receive Chevron deference, but a limited exception should also be created to the current ban on retroactive rulemaking to encourage agencies to engage in the rulemaking process to address ambiguities arising in adjudication. This exception could be specifically cabined to apply only in these unique situations. Enabling such an exception would provide the agency and the public with the benefits arising from public participation.

Gwendolyn Savitz*

*Visiting Assistant Professor, University of Tulsa College of Law.

The limits of expungement are where the hope for real reentry meet the desire for criminal justice transparency. That a criminal record, ordered expunged by a judge after a long and arduous process, continues to exist in the world of private actors is a cold, harsh reality for those attempting to reenter civil society. It is also reassurance for parents hiring a babysitter, school districts seeking new employees, and employers concerned about workplace liability. Not to mention, the thought that all records of criminal justice adjudication could be purged forever intuitively sounds Orwellian, even in an age where surveillance, whether governmental or corporatized, is the norm. Expungement—the process by which the official, public data of a criminal record is erased, sealed, or made private—remains an important tool in the battle against stigma and over-punishment after one formally leaves the criminal justice system. But technological and big data realities, coupled with transparency norms, will forever affect its efficacy. The internet is not going away, and private actors will always feel entitled to hold a default position that allows for the dissemination of public information about the criminal justice system, as that sentiment finds support in the history and expectations underlying the transparent administration of the legal system. For the successful expungement petitioner, a game of whack-a-mole is and will remain the norm. A sense of powerlessness to move on from one’s past, like the criminal record, persists.

Brian M. Murray*

*Associate Professor of Law, Seton Hall University School of Law.

In this Article, I wish to question whether reaffirming the animating spirit of Tinker is the best way to protect student speech rights. In allowing schools to punish student speech that
school officials reasonably believe could be substantially disruptive, Tinker founds students’ free expression rights on unstable ground. This is true for two reasons. First, the Tinker standard allows school officials to regulate student speech based on their own perceptions of what its impacts will be. While these perceptions must be reasonable, courts have shown extraordinary deference to
educators’ claims that student speech could be substantially disruptive. Second, the substantial disruption standard allows speech to be restricted not because it is in some way unlawful, but rather because of what others’ reactions might be to it. As I discuss below, government regulations with either one of these defects would generally be found unconstitutional in a nonschool context, because they give government officials too much discretion to burden or proscribe unpopular speech—the very harm the First Amendment’s free speech guarantee is designed to guard against.

For these reasons, I argue that Tinker’s substantial disruption standard ought to be replaced by something like the public forum doctrine, which tailors governments’ power to restrict speech in a
given forum based on the forum’s traditional use and the government’s role in creating it and is highly skeptical of government discretion in determining what expression will be allowed in the forum. In my view, schools should be allowed to regulate student speech only when they create or control the forum in which it is expressed. Otherwise, they should be without the power to regulate student speech. Even within the forums that they control, I argue that schools’ ability to regulate student speech should be circumscribed.

Noah C. Chauvin*

State civil courtrooms are packed to the brim with litigants, but not with lawyers. Since the early 1990s, more and more litigants in state courts have appeared without legal counsel. Pro se litigation has grown consistently and enormously over the past few decades. State court dockets are dominated by cases brought by unrepresented litigants, most often in domestic violence, family law, landlord-tenant, and small claims courts.

Yet, the American courtroom is not designed for use by those unrepresented litigants—it is designed for use by attorneys. The American civil court is built upon a foundation of dense procedural
rules, thick tomes of long-evolved substantive law, and—the focus of this piece—a complex set of evidentiary prohibitions and exceptions. The American civil court is designed for two competing adversaries to face off against one another. It is built on the assumption that both of those adversaries will present the best case they can, employing an accurate understanding of the complex rules and laws that govern the proceedings. Nonlawyer pro se litigants often struggle to adhere to the norms of the adversarial American legal system. As a result, complex legal rules present an access-to-justice barrier to unrepresented litigants unable to comply with them.

Andrew C. Budzinski

Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law, Co-Director of the General Practice Clinic.