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Data Institutionalism

A Reply to Andrew Woods
by  Zachary D. Clopton  

In Against Data Exceptionalism, Andrew Keane Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests,…

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Essay

Sexual Assault as a Law of War Violation and U.S. Service Members’ Duty to Report

by  Chris Jenks & Jay Morse  

Introduction This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces (ASF) against Afghan nationals to the U.S. military. The answer requires applying a longstanding Department of Defense (DOD) policy for reporting law of war (LOW) violations and hinges on when sexual assault…

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FERC v. EPSA

Functionalism and the Electricity Industry of the Future
by  Matthew R. Christiansen  

  Introduction The Supreme Court’s recent decision in Federal Energy Regulatory Commission v. Electric Power Supply Association (EPSA) may ultimately rank among the most significant energy law cases of all time. Unsurprisingly, the case has received considerable attention within legal circles and even within the popular press. EPSA upheld one of the Federal Energy Regulatory…

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Essay

In Defense of Corruption

CNN Debates, the Press Clause, and Campaign Finance Regulation
by  Michael Francus  

Introduction This election cycle, CNN’s Republican presidential debates have twice violated campaign finance law, specifically by failing to issue invitations based on “pre-established objective criteria.” These violations went unpunished, not because of the ineptitude of the regulators, but because of the absurdity of the regulation violated, which presumes that television debates violate campaign finance law,…

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Because and Effect

Another Take on Inclusive Communities
by  Lee Anne Fennell  

Introduction What does “because of race” mean in an antidiscrimination statute like the Fair Housing Act of 1968 (FHA)? The question arose last Term in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the case in which the Supreme Court recognized a disparate impact cause of action in the FHA. In…

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Who Should Define Injuries for Article III Standing?

by  Daniel Townsend  

Introduction In November, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, one of the Term’s most talked-about cases. The case presents a relatively unsympathetic plaintiff, Thomas Robins, and the prospect of sizeable class action damages. That combination may explain why one particular narrative has become popular in both mainstream media and legal-industry press…

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The Many Meanings of “Because Of”

A Comment on Inclusive Communities Project
by  Noah D. Zatz  

Introduction The Supreme Court recently surprised many observers by upholding disparate impact claims under the Fair Housing Act (FHA) in a case called Inclusive Communities Project. Justice Kennedy’s majority opinion ratcheted down the hostility to disparate impact analysis recently on display in his Ricci v. DeStefano opinion and in other earlier opinions he had joined.…

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Essay

Government Speech and Political Courage

by  Helen Norton  

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…

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The Court and Overcriminalization

by  Michael Pierce  

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…

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Retroactivity, the Due Process Clause, and the Federal Question in Montgomery v. Louisiana

by  Jason M. Zarrow & William H. Milliken  

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…

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Isolating Litigants

A Response to Pamela Bookman
by  Alan M. Trammell  

This Essay is a response to Pamela K. Bookman’s Litigation Isolationism.

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Essay

The Original Meaning of Constitutional Inventors

Resolving the Unanswered Question of the MadStad Litigation
by  Alexander J. Kasner  

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…

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Essay

Substantive Due Process as a Two-Way Street

How the Court Can Reconcile Same-Sex Marriage and Religious Liberty
by  Mark L. Rienzi  

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…

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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  

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…

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Safe and Effective for Human Executions?

Glossip v. Gross and the Eighth Amendment Bar Against Off-Label Drug Lethal Injection
by  Rose Carmen Goldberg  

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…

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Essay

Share and Share Alike?

Considering Racial Discrimination in the Nascent Room-Sharing Economy
by  Michael Todisco  

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…

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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  

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.…

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Dual Registration Voting Systems

Safer and Fairer?
by  Chelsea A. Priest  

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…

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Essay

New Republican Bill Is Network Neutrality in Name Only

by  Barbara van Schewick & Morgan N. Weiland  

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…

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Essay

The Case for an International Court of Civil Justice

by  Maya Steinitz  

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…

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