Forum

Playing the Purcell Game

By: John Deschler

Decided by the Supreme Court in 2006, Purcell v. Gonzalez has given defendant jurisdictions a tool to delay court-ordered redistricting on the ground that they came too close to an election. This article catalogues the drastic expansion of Purcell over the last two decades, culminating in the Court’s Allen v. Milligan order following the landmark decision altering the Voting Rights Act in Louisiana v. Callais. This article argues that the Milligan order, which limited the invocation of Purcell to government actors, conflicts with courts’ practice of expanding Purcell’s temporal reach through the rights of individual parties. Finally, the article proposes a strategy for voting rights litigants to blunt Purcell’s remedy-delaying effect: litigate Purcell deadlines before the merits, rather than after a remedy has been ordered. Purcell remains a major part of the procedural landscape in which redistricting cases are litigated, and litigants must learn to use that landscape to their advantage.

Vol. 62 | No. 1 | August 2026

More Than a Tent: Using the Uniform Unincorporated Nonprofit Association Act to Protect Encampment Residents’ Rights

By: Michelle Y. Ewert

Homeless encampments have become increasingly vulnerable to criminalization, eviction, and forced displacement in the wake of City of Grants Pass v. Johnson and renewed federal and local hostility toward unsheltered people. Courts often treat encampments as temporary locations rather than as communities, leaving residents without effective legal protection when individual plaintiffs lose standing due to displacement, death, or relocation. This article challenges that narrow conception by arguing that many encampments function as collective entities that provide safety, stability, shared resources, and political voice for people without housing. Drawing on constitutional theory, property scholarship, and case studies of organized encampments, the article demonstrates how encampments can constitute “home” with community equity deserving of legal recognition and procedural protection.

The article then proposes a novel and pragmatic solution to persistent standing and enforcement problems: treating qualifying encampments as unincorporated nonprofit associations under the Uniform Unincorporated Nonprofit Association Act (UUNAA) and analogous state statutes. Unlike corporations or formal nonprofits, the UUNAA offers a flexible legal structure well suited to loosely organized, noncommercial groups. Recognition as an unincorporated nonprofit association would allow encampments to sue in their own name, preserve claims despite changes in membership, and assert collective rights alongside those of individual residents. The article concludes by offering guidance for lawyers and organizers working with encampments to pursue resident-led legal recognition without undermining autonomy or dignity, and argues that recognizing encampments as collective legal actors can meaningfully enhance due process, stability, and political power for some of society’s most marginalized communities.

Vol. 62 | No. 1 | August 2026

Self-Misgendering Mandates and the First Amendment Official Duty Doctrine

By: Brendan M. Conner

Across the federal government and a growing number of states, public employers are directing transgender, nonbinary, and gender-nonconforming employees to misgender themselves. Executive orders declaring a binary conception of sex to be federal policy have hardened into operational commands as agencies purge pronoun features from email platforms and personnel systems, while states have barred educators from sharing self-identifying pronouns in the classroom and stripped pronouns from public employees’ email signature blocks. Although the First Amendment implications of rules governing how public employees address others are well represented in the scholarly literature, mandates compelling employees to misgender themselves have received comparatively little attention. The gap is consequential. In Wood v. Florida Department of Education, the Eleventh Circuit held that a transgender teacher’s use of her own preferred title and pronouns in the classroom was speech “pursuant to” her official duties under Garcetti v. Ceballos and therefore categorically excluded from First Amendment protection.

This Article argues that Wood‘s formalist reasoning cannot be squared with Kennedy v. Bremerton School District, which requires a practical, context-sensitive inquiry into whether speech owes its existence to a public employee’s job duties. Drawing on post-Garcetti precedent, linguistic scholarship on the identity-expressive function of pronoun self-designation, and emerging critiques of government-speech capture, the Article demonstrates that self-identification is not a task the government hires any employee to perform. It is instead a foundational act of personal identity expression that public employees carry with them into the workplace as private citizens. The Article then develops a doctrinal framework distinguishing addressee-oriented pronoun rules from self-misgendering mandates and shows why the latter constitute citizen speech subject to public-concern analysis and Pickering balancing rather than categorical exclusion under the official duty doctrine.

Vol. 62 | No. 1 | August 2026

From Slavery to Dependency: How Courts Misinterpret the Fair Labor Standards Act to Justify Prison Labor

By: Nicole Plante

The Fair Labor Standards Act (FLSA) was designed to ensure fair wages and put an end to exploitative labor conditions. Despite recent reconsideration of the FLSA as it applies to incarcerated workers, courts continue to reject the idea that they fall within the Act’s purposes. This Note seeks to understand why courts maintain this exclusion—particularly when they have begun to reconsider other aspects of FLSA coverage for incarcerated labor.

To answer this question, this Note presents the dependency framework—a legal rationale that assumes incarcerated workers are fully dependent on prisons and, therefore, have no needs beyond those provided for by prisons. Ultimately, this Note argues that this framework has its roots in slavery, and that is why courts continue to misinterpret the purposes of the FLSA to exclude incarcerated workers.

To make this argument, the Note begins by showing how, even in the generous holding of Scott v. Baltimore County, the Fourth Circuit perpetuated the dependency framework and denied that incarcerated workers fall within the FLSA’s purpose due to impacts on their well-being. It then takes a step back and examines the origins of the dependency framework, tracing its foundations to 1990s case law. From there, the Note shows how the framework and courts are out of touch with reality, highlighting how incarcerated workers have unmet needs and fall within the original purposes of the FLSA. Finally, the Note situates the dependency framework within the broader historical context of slavery and post-Reconstruction convict leasing, revealing how modern prison labor practices remain tethered to America’s legacy of racial and economic exploitation.

Vol. 61 | No. 1 | June 2026

Medina v. Planned Parenthood South Atlantic: Spending Clause Legislation and the End of Thiboutot

By: Ariel Vasser

Since 1980, the Supreme Court has held that 42 U.S.C. § 1983 is available to redress violations of all federal laws. However, in June 2025, the Court decided Medina v. Planned Parenthood South Atlantic, severely curtailing litigants’ ability to use Section 1983 as a vehicle for vindicating violations of federal “spending-power” statutes. This decision departed from the Court’s most recent precedent in Health & Hospital Corp. of Marion County v. Talevski, which was decided only two years prior. This Comment analyzes Medina and argues that it is both an incorrect and misleading application of precedent and that its core distinction between Spending and non-Spending Clause statutes is analytically unsound. In doing so, it argues for the first time that Medina has impliedly overruled Maine v. Thiboutot’s application to spending-power statutes.

By analyzing the Court’s Section 1983 “and laws” jurisprudence, beginning in the 1980s and ending in 2025 with Medina, this Comment explains how and why Medina is different and has shifted the landscape. The new aspects of its test—which use the language at issue in Talevski as a talisman and rely on doctrinally unclear distinctions between Spending and non-Spending Clause statutes—are unprecedented and will drastically impact litigants across the country. Medina’s scope can be best understood by its effect on previously enforceable provisions of “spending-power” statutes, particularly under the Medicaid Act. Using two illustrative provisions as examples, this Comment analyzes how Medina has effectively rendered these provisions dead letters and restricted individuals’ abilities to sue to enforce their rights.

Vol. 61 | No. 2 | June 2026