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After Flint: Environmental Justice As Equal Protection

Dana, David A.,Tuerkheimer, Deborah | January 17, 2017

In this essay, Professors Dana and Tuerkheimer conceptualize Flint as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.

Clarence Thomas the Questioner

Andersen Jones, RonNell,Nielson, Aaron L. | January 1, 2017

What Lurks Below Beckles

Litman, Leah M.,Rahman, Shakeer | November 2, 2016

In this essay, Litman and Rahman argue that if the Supreme Court grants habeas relief in this month’s Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, Litman and Rahman conclude that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the habeas statute is unconstitutional.

Protection for Families: New Standards Developing in Asylum Law

Blake, Jillian | October 22, 2016

Fear of persecution based on one’s family ties has long been considered a basis for asylum in the United States. Recently, however, the scope of that protection has come under dispute and, as a result, may be expanding. In this Essay, Blake argues for a more expansive interpretation of these asylum claims, recognizing family-based persecution even when persecutors have multiple motives for targeting their victim.

Lupu, Tuttle, and Singling Out Religion

Koppelman, Andrew | September 14, 2016

In this essay, Koppelman reviews Secular Government, Religious People by Ira C. Lupu and Robert W. Tuttle. Lupu and Tuttle offer a timely examination of how and where religious liberty and American law intersect. Koppelman offers his take and places the book within the scholarship on religious liberty.

Police Stories

Anderson, Helen A. | August 6, 2016

In this essay, Anderson explores how the police narrative is told in appellate opinions, in light of changing police stories seen in the media. In recent years, video recordings of police violence have upended the traditional narrative of police heroism. The videos have led to discussions of police accountability, yet the controversies surrounding these incidents have also served to highlight the strength of the traditional narrative. Anderson first discusses the prevailing cultural story of the dedicated police officer, as depicted in popular media. Next, Anderson examines how police narratives are conveyed in appellate opinions, through the use of police language, including “copspeak,” as well as narrative devices such as point of view, emphasis, and selective detail. Finally, Anderson discusses examples of counter-narratives in court opinions. Anderson’s conclusion is not that all police narratives are suspect, but that judicial writers need to be aware of how they tell the story of a police–citizen encounter, recognizing that the story is part of the argument.

The Death Penalty and the Fifth Amendment

Blocher, Joseph | July 15, 2016

In this essay, Blocher considers recent developments that have given new hope to those seeking constitutional abolition of the death penalty. Some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty is constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but Blocher argues that its strength is largely superficial and also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding-era assumption that capital punishment was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. Blocher concludes that there might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment Argument is not among them.

War by Legislation: The Constitutionality of Congressional Regulation of Detentions in Armed Conflicts

Ford, Christopher M. | June 25, 2016

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive’s powers in foreign affairs and as Command in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

The Ferguson v. JONAH Verdict and a Path Towards National Cessation of Gay-to-Straight “Conversion Therapy”

Dubrowski, Peter R. | December 31, 2015

In the essay, Dubrowski analyzes Ferguson v. JONAH, a landmark 2015 decision in which a New Jersey court held — for the first time — that homosexuality is not a disease or mental disorder as a matter of law. Based on this pretrial ruling, a civil jury unanimously found JONAH (a conversion therapy clinic) its co-directors and its chief counselor liable for violation of New Jersey’s Consumer Fraud Act. Dubrowski begins by explaining the two-pronged fraud JONAH perpetrated—first, claiming that homosexuality is a disorder, and second, that it can be cured—and continues by arguing that this two-pronged fraud is necessarily perpetrated by all conversion therapists. He then undertakes a survey of the consumer fraud laws of all fifty states, demonstrating that the verdict against JONAH is replicable across the country, and concluding that those injured by the so-called therapy should seek to replicate Ferguson v. JONAH’s success.

The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up

Bedi, Monu | October 29, 2015

In the essay, Professor Bedi discusses a prominent issue in Fourth Amendment jurisprudence: whether an individual’s cell phone location data is constitutionally protected. The emergence of this data and law enforcement’s attempts to utilize it have raised new questions about the reach of the third-party and public disclosure doctrines, which have traditionally rendered the Fourth Amendment inapplicable to seemingly similar data in certain circumstances. Bedi explores these new questions, providing a helpful overview of the different manifestations of this data and a critical survey of lower courts’ varying approaches to law enforcement’s attempts at securing it. Ultimately, Bedi argues for a new way of understanding the third-party and public disclosure doctrines, arguing that, in the cell phone location data context, attention is best placed on the type of data and the context in which law enforcement acts.

Prosecuting Online Threats After Elonis

Pierce, Michael | October 20, 2015

In the essay, Mr. Pierce discusses what, exactly, the government must prove before it can, consistent with the First Amendment, prosecute someone who posts threatening messages on Facebook. Last Term, a divided Court wrestled with this issue in Elonis v. United States, reversing the defendant’s conviction but leaving an important question unanswered: does the government need to prove that a speaker was reckless with his words or, alternatively, that he specifically intended them to be interpreted as threats? The essay suggests that instead of deciding which standard is best for all online threats, lower courts should adopt libel law’s distinction between public and private targets, and similarly apply a heightened mens rea standard only when the speech at issue targets public figures. A Facebook post containing violent language about one’s elected representative implicates free speech values in a way that an otherwise similarly threatening post targeting one’s ex-wife (like Elonis’s) does not.

Who Are You Calling Irrational?

Kovvali, Aneil | October 5, 2015

In the review, Kovvali discusses and critiques certain philosophical underpinnings of “nudges.” Nudges are small interventions that change the context in which decisions are made, thus encouraging individuals to make specific choices. Using an analogy to voting paradoxes, Kovvali shows that nudges exploit a type of irrationality that results when citizens attempt to reconcile inconsistent objectives, and concludes that while insights about irrationality are useful when government officials ask how to design an intervention, they often do not provide a convincing justification for why an intervention is needed.

Legal and Psychological Considerations in Adolescents’ End-of-Life Choices

Wilson, Molly J. Walker | August 31, 2015

In this essay, Professor Wilson reflects on the manner in which the law treats adolescents who are faced with end-of-life decisions. She begins by surveying the legal framework underlying end-of-life choices at the state and federal levels. She then discusses two decisionmakers – adolescents and adults – and the behavioral traits and biases that animate each when end-of-life decisions arise. In doing so, Wilson draws upon a rich body of empirical work on human decisionmaking. Wilson concludes that placing end-of-life decisions solely in the hands of adolescents or adults can result in suboptimal choices. She proposes the use of a bioethical mediator to counteract biases, reduce disagreement, and assist all parties in reaching the best possible outcome.

The Value of Uncertainty

Hwang, Cathy,Edwards, Benjamin P. | August 17, 2015

In the aftermath of the financial crisis, the federal courts have heard arguments in contract disputes involving billions of dollars worth of securitized financial products—yet it is not clear that the federal courts have subject matter jurisdiction over these cases. In this Essay, we advance possible explanations for why parties to default disputes do not raise this possible jurisdictional defect.

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace

Wasserman, Howard M. | July 12, 2015

On June 26, 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the Fourteenth Amendment. In hindsight, the decision seems inevitable, the culmination of a precisely two-year race towards marriage equality that began with the Court’s 2013 invalidation of the federal Defense of Marriage Act on June 26, 2013. Federal trial and appellate courts were almost uniform in declaring state bans on same-sex marriage unconstitutional, and the Supreme Court denied certiorari or stays of judgment in all of those cases. Additionally, high-ranking public officials in several states gave up their opposition to marriage equality, ordering the issuance of licenses to same-sex couples even before all litigation had concluded. Alabama represented the glaring exception.

Restoring the Fact/Law Distinction in Patent Claim Construction

Anderson, J. Jonas,Menell, Peter S. | April 20, 2015

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 1791, the Court turned to “the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation.” It concluded that federal district court judges were better equipped than juries to resolve the mixed fact/law controversies inherent in construing disputed patent claim terms, thereby leading to more effective and transparent patent litigation. Fully achieving the Court’s goal of more effective and transparent patent litigation, however, depends on district judges having the flexibility to learn pertinent facts, build a reviewable record, and explain the basis for their claim constructions.

Race Matters in Jury Selection

Joy, Peter A. | February 23, 2015