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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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Essay

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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Essay

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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Response

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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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  

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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Essay

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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Essay

Dumping Debt and Seizing Assets

Ukrainian Countermeasures for Russian Aggression
by  Cynthia Barmore & Chris Miller  

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…

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Essay

Questioning Sincerity

The Role of the Courts After Hobby Lobby
by  Ben Adams & Cynthia Barmore  

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…

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Essay

The Brady Colloquy

by  Jason Kreag  

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…

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Essay

Ex Post Incentives and IP in Garcia v. Google and Beyond

by  Clark D. Asay  

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…

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Essay

Network Nepotism and the Market for Content Delivery

by  Tejas N. Narechania  

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…

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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  

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…

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Essay

The Post-Boumediene Paradox

Habeas Corpus or Due Process?
by  Mary Van Houten  

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…

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