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Volume 74, Issue 6


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The First Amendment, Criminal
Procedure, and the Regulation of
Police Social Media Speech
by  Jonathan Abel

What happens when a law-enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On one side are calls for severe discipline and termination. On the other are demands…

Article

Mass Arbitration

by  J. Maria Glover

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the arbitration revolution, a forty-year campaign to eliminate class actions through forced…

Article

Beyond “Market Transparency”

Investor Disclosure and
Corporate Governance
by  Alexander I. Platt

The ability to identify a firm’s shareholders is essential to modern corporate-governance practice. Corporate managers, activist hedge funds, shareholder-proposal sponsors, and other market actors all use this information in their efforts to shape corporate action. They can do so, however, only by dint of regulatory fiat. Since the 1970s, the U.S. Securities and Exchange Commission…

Article

Vesting

by  Jed Handelsman Shugerman

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that “vest”…

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Recent Online Essays

Rethinking Strategy After Dobbs

Now that the Supreme Court has overturned Roe v. Wade and Planned Parenthood v. Casey, the movement for abortion rights and access finds itself in uncharted territory, and the stakes could not be higher. For abortion rights defenders, this new, post-Roe playing field means adapting their strategy and mindset to confront a new environment without a tether to federal constitutional protection. This Essay, published in the immediate aftermath of Dobbs, offers some initial thoughts about what the changed legal landscape means for abortion rights legal advocacy. It offers several suggestions, all of which require a paradigm shift in movement strategy to one that is in some ways modeled after the now-successful movement to overturn Roe

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Is Quasi-Judicial Immunity Qualified Immunity?

Has qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. This would be very important if it were true. But it is not.

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Election Law in an Age of Distrust

Election law now operates in a sea of pervasive distrust. This essay argues that election law and practices must adapt to the context of this pervasive distrust. Policies and practices that might be fine under normal circumstances, but are likely to feed distrust today, should be re-thought. This short essay identifies seven initial measures that policymakers, election administrators, and even voters can take to help fend off distrust about the election process.

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Enforcing the Political Constitution

This short essay argues that the congruence and proportionality test of City of Boerne v. Flores—which the U.S. Supreme Court applies to laws passed pursuant to Section 5 of the Fourteenth Amendment—should not apply to federal voting rights legislation. This test is inapplicable because the right to vote, although a judicially protected constitutional right, is also a political right beyond the purview of the courts. The right to vote implicates a number of constitutional provisions that are direct grants of power to Congress, the exercise of which can directly conflict with the notions of judicial supremacy that dominate our legal system.

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Ascertaining the President-Elect Under
the Presidential Transition Act

The Presidential Transition Act (PTA) requires the Administrator of the General Services Administration (GSA) to facilitate the transition to an incoming administration following a presidential election. The PTA does not provide any guidance for the GSA Administrator, however, in determining whether a presidential candidate qualifies as a President-elect. This Article provides a framework for Administrators to apply, and Congress to consider codifying, when ascertaining the results of presidential elections under the PTA. It further suggests that Congress should amend the PTA to avoid unnecessarily delays and argues that Congress should reduce the potential perceived significance of the Administrator’s ascertainment decision by changing the term “President-elect” as used in the PTA and related federal statutes to a less politically charged term, such as “federal designee.”

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