Essay Government Speech and Political Courage by Helen Norton on October 30, 2015 Among the most prominent examples of government speech is a state’s choice to fly—or not to fly—the Confederate flag above or adjacent to its capitol. The recent vigorous public debates in South Carolina and elsewhere across the country reveal the potential power of governments’ expressive choices, including their power to inform, celebrate, cajole, wound, and… Volume 68 (2015-2016)
Essay The Court and Overcriminalization by Michael Pierce on October 10, 2015 Introduction In both Bond v. United States and Yates v. United States, the Supreme Court reversed federal criminal convictions. Neither defendant’s conduct was constitutionally protected; there were no procedural irregularities in either trial, no vagueness or overbreadth issues, and no police misconduct. Instead, each case involved prosecuting a small-time individual with a big-time statute: In… Volume 68 (2015-2016)
Essay Retroactivity, the Due Process Clause, and the Federal Question in Montgomery v. Louisiana by Jason M. Zarrow & William H. Milliken on September 28, 2015 Introduction The Supreme Court recently granted certiorari in Montgomery v. Louisiana to determine whether the Court’s holding in Miller v. Alabama, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” applies retroactively to cases on collateral review. That question is important in its own… Volume 68 (2015-2016)
Response Isolating Litigants A Response to Pamela Bookman by Alan M. Trammell on August 31, 2015 This Essay is a response to Pamela K. Bookman’s Litigation Isolationism. Volume 68 (2015-2016)
Essay The Original Meaning of Constitutional Inventors Resolving the Unanswered Question of the MadStad Litigation by Alexander J. Kasner on June 29, 2015 Introduction In litigation that garnered national attention, a “garage inventor” of a new design for motorcycle windshields challenged the Leahy-Smith America Invents Act (AIA) as unconstitutional under the U.S. Constitution’s Patent Clause. The basis of the challenge in the case—MadStad Engineering, Inc. v. U.S. Patent & Trademark Office—uncoils as a pleasing syllogism: the AIA transitioned… Volume 68 (2015-2016)
Essay Substantive Due Process as a Two-Way Street How the Court Can Reconcile Same-Sex Marriage and Religious Liberty by Mark L. Rienzi on May 23, 2015 Introduction Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay… Volume 68 (2015-2016)
Response Widening the Aperture on Fourth Amendment Interests A Comment on Orin Kerr’s The Fourth Amendment and the Global Internet by David G. Delaney on May 18, 2015 Introduction In The Fourth Amendment and the Global Internet, Orin Kerr highlights several important Fourth Amendment questions that few courts have addressed. But in “offer[ing] a general framework for applying the Fourth Amendment to a global computer network in a way that maintains the existing territorial conception of the Fourth Amendment,” Kerr’s article focuses too narrowly… Volume 68 (2015-2016)
Essay Safe and Effective for Human Executions? Glossip v. Gross and the Eighth Amendment Bar Against Off-Label Drug Lethal Injection by Rose Carmen Goldberg on May 4, 2015 Introduction In June the U.S. Supreme Court will decide Glossip v. Gross, a challenge to Oklahoma’s lethal-injection protocol brought by three death row inmates. The inmates argue that the protocol’s first drug, midazolam, violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it does not reliably induce unconsciousness. Midazolam’s inadequacy, they claim, could… Volume 68 (2015-2016)
Essay Share and Share Alike? Considering Racial Discrimination in the Nascent Room-Sharing Economy by Michael Todisco on March 14, 2015 Introduction The motel’s neon vacancy sign lures the weary traveler from the freeway. She enters and inquires after a room. The receptionist, without looking up from his crossword, slides a clipboard across the front desk. An application? When did motels become prep schools? The traveler scribbles in the requested information. Name: Monique Jackson. Reason you… Volume 67 (2014-2015)
Essay Section 2 Zero-Sums How the Supreme Court Misconstrued the Voting Rights Act, Limits Minority Representation, and Dangerously Pits Minorities Against Each Other by Salvador E. Pérez on February 28, 2015 Introduction Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary. —Reinhold Niebuhr Fifty years after the passage of the Voting Rights Act (VRA), legal controversies surrounding voter identification, early voting, voter registration, campaign finance, and redistricting continue to raise fundamental questions that, when answered, inform a theory of democracy.… Volume 67 (2014-2015)
Essay Dual Registration Voting Systems Safer and Fairer? by Chelsea A. Priest on January 25, 2015 Introduction On November 4, 2014, more than 21,000 Kansans who had attempted to register to vote were denied that opportunity. The cause? A law that went into effect in January 2013 requiring that registrants provide proof of citizenship. Kansas’s law is only one of the most recent examples of this country’s general trend toward stricter… Volume 67 (2014-2015)
Essay New Republican Bill Is Network Neutrality in Name Only by Barbara van Schewick & Morgan N. Weiland on January 20, 2015 Introduction After a year of debates and a month before the Federal Communication Commission’s (FCC’s) rulemaking on network neutrality, the GOP has finally joined the party. Through a draft bill released late last week, congressional Republicans have taken a step in the direction of supporting network neutrality. That’s a good thing, and moves them closer… Volume 67 (2014-2015)
Essay The Case for an International Court of Civil Justice by Maya Steinitz on December 2, 2014 Introduction We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. The only way to provide a fair and legitimate process for both victims and corporations… Volume 67 (2014-2015)
Essay Dumping Debt and Seizing Assets Ukrainian Countermeasures for Russian Aggression by Cynthia Barmore & Chris Miller on December 1, 2014 Introduction Russia’s war on Ukraine is an unlawful use of force that has imposed needless suffering on Ukraine and its people. Through (1) its unjustified occupation and annexation of Ukraine’s Crimea region and (2) its support for antigovernment insurgencies in Ukraine’s eastern provinces of Donetsk and Lugansk, Russia is largely responsible for an unprovoked war… Volume 67 (2014-2015)
Essay Questioning Sincerity The Role of the Courts After Hobby Lobby by Ben Adams & Cynthia Barmore on November 7, 2014 Introduction In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court extended the protections of the Religious Freedom Restoration Act (RFRA) to Hobby Lobby, Mardel, and Conestoga Wood Specialties, three closely held corporations, and held that the contraception mandate of the Affordable Care Act substantially burdened their religious exercise. The sincerity of their religious beliefs was… Volume 67 (2014-2015)
Essay The Brady Colloquy by Jason Kreag on September 2, 2014 Introduction Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a distinctly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to… Volume 67 (2014-2015)
Essay Ex Post Incentives and IP in Garcia v. Google and Beyond by Clark D. Asay on August 20, 2014 Introduction The Ninth Circuit’s recent opinion in Garcia v. Google, Inc. has attracted significant attention across the legal, political, and business worlds because of its possible implications for copyright law, free expression, and existing business models in the entertainment industry. The plaintiff, Cindy Lee Garcia, made several requests to Google’s YouTube to take down an… Volume 67 (2014-2015)
Essay Network Nepotism and the Market for Content Delivery by Tejas N. Narechania on August 6, 2014 Introduction This summer, the Federal Communications Commission (FCC) officially launched its third attempt to impose network neutrality rules on Internet traffic. But before the Commission could release its proposed regulations, they leaked to the Wall Street Journal and were quickly embroiled in controversy. Chief among the objections was the possibility that the new regulations would… Volume 67 (2014-2015)
Essay Improving Prosecution of Sexual Assault Cases Can the Justice Department Use 42 U.S.C. § 14141 to Investigate Prosecutors’ Offices? by Amy Knight Burns on July 5, 2014 In December 2013, an editorial appeared in the Missoulian, a Montana-based newspaper, criticizing Missoula County Attorney Fred Van Valkenburg for a statement about his office’s handling of rape prosecutions: that attorneys in his office could review and work on those cases “whenever ‘they have spare time.’” Van Valkenburg published a defiant response. This exchange was part… Volume 67 (2014-2015)
Essay The Post-Boumediene Paradox Habeas Corpus or Due Process? by Mary Van Houten on June 25, 2014 Introduction In Boumediene v. Bush, the Supreme Court famously held that the writ of habeas corpus, guaranteed by the Suspension Clause, had “full effect” at Guantanamo Bay, Cuba. But Boumediene did not specify how other constitutional rights, such as the writ’s oftentimes-inextricable partner, the Due Process Clause, should influence the analysis. After Boumediene, the D.C. Circuit… Volume 67 (2014-2015)