Digital Commons Network^™

Brief Of Amici Curiae Criminal Law Scholars And Legal Organizations In Support Of Petitioner, Alabama Criminal Defense Lawyers Association, Florida Association Of Criminal Defense Lawyers, Kentucky Association Of Criminal Defense Lawyers, Criminal Defense Attorneys Of Michigan, North Carolina Advocates For Justice, Virginia Association Of Criminal Defense Lawyers, Due Process Institute, Ira P. Robbins, Kyle Singhal

Amicus Briefs & Court Filings

SUMMARY OF THE ARGUMENT: The Sentencing Guidelines are, in practice, the most consequential legal text in federal criminal law. Yet this Court has abstained from interpreting the Guidelines for decades. That practice is anomalous in the federal judiciary and should end. District courts must correctly calculate every defendant’s guideline range at every sentencing hearing. Courts of Appeals routinely hear appeals asserting guideline mistakes. And differences of appellate opinion over purely legal, highly consequential questions often arise. This Court apparently declines to hear such cases because the Sentencing Commission could resolve those conflicts. See Braxton v. United States,500 U.S. 344, …

Litigating Birthright Citizenship In The Shadow Of World War Ii: The Continuing Relevance Of A Forgotten Case, Rachel E. Rosenbloom

Michigan Journal of Race and Law

With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara, this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade, filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark, the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has …

The Health Status Of U.S. Democracy, Philip C. Bobbitt

Faculty Scholarship

In 1776, Thomas Paine wrote Common Sense, a pamphlet that galvanized American public opinion in the aftermath of the colonial confrontations at Lexington and Concord. The disorganized revolt against British authority was largely undecided on next steps, public opinion having failed to coalesce around capitulation to London or revolution against the British government. Paine’s argument for American independence was uncompromising. Prefiguring the Declaration of Independence that put King George III front and center in the emerging conflict, Paine wrote: “In the monarchies, the King is the Law but in America, Law is King.”

Democracy Needs The Administrative State, Gillian E. Metzger

Faculty Scholarship

In public debate, the federal bureaucracy is not typically praised for its democratic credentials. Consisting of a wide array of agencies staffed by a permanent civil service and governed by detailed regulations, the administrative state is more likely to be portrayed as a bastion of red tape and unelected power. To hear members of the Supreme Court tell it, for example, the administrative state’s “unaccountable bureaucrats” and “vast power[s]” pose a dire threat to constitutional democracy that only expanded presidential control can solve. President Trump has offered an even darker view, attacking a “deep state” of entrenched government officials as …

A Conventional Solution To Constitutional Stagnation?, David E. Pozen

Faculty Scholarship

Our charter of government is stuck. The last time the U.S. Constitution was revised was over 30 years ago, when the “fluky” and largely inconsequential Twenty-Seventh Amendment stole into the text two centuries after it was written. The last time Congress proposed an amendment was almost 50 years ago, when the District of Columbia Voting Rights Amendment was sent to its demise at the ratification stage. Although state constitutions remain far more dynamic, they too have experienced a declining rate of amendment in recent years.

Inequality, Collective Power, And Democratic Renewal, Kate Andrias

Faculty Scholarship

With each passing week since this essay series commenced, American democracy has come under greater threat. Leading political scientists have concluded that the U.S. is now better described as a competitive autocracy rather than a democracy. President Trump’s recent attacks on core institutions and violations of the rule of law — from the use of violent force by ICE to the investigation of the Federal Reserve Chair and the threats involving Greenland — were unimaginable even a few months ago.

Judging Fast And Slow, Bert I. Huang

Faculty Scholarship

The federal courts serve as our first responders in conflicts over constitutional rights and the separation of powers. They are called upon to react — fast — to legal challenges to governmental actions. To avert harm before it’s too late, they may rule within weeks, days, or even hours. They have done so in recent cases about free speech, freedom of the press, election law, independent agencies, federal workers, domestic troop deployments, spending and taxation, due process, search and seizure, and more.

The trial judges and appeals courts of the federal judiciary have long been tasked with this kind of …

Religious Persecution In Communist Albania Through Constitutional And Legal Acts, Sadik Haxhiu, Besard Belegu, Artan Fejzullahu

Occasional Papers on Religion in Eastern Europe

Following the victory of the communist regime in 1944, the new Albanian state built its institutions on a materialist worldview that stood in direct opposition to the universal principles of freedom of conscience and religious belief. The state progressively restricted religious practice until it banned it altogether. This anti-religious campaign proceeded along two tracks: anti-religious political propaganda and the adoption of legal acts prohibiting the practice of religion. A 1967 decree-law banned religious belief outright, and the 1976 Constitution declared Albania the first atheist state in the world. This paper is based on an analysis of legal acts, scholarly literature, …

The New Economic Liberties, Daniel B. Rodriguez

Northwestern University Law Review

Despite the lack of serious interrogation at the federal constitutional level of economic regulations, there continues to be a fairly robust, energetic attention at the level of state constitutional law to so-called economic liberties. In a number of key cases, including, for example, matters involving occupational licensing, state courts have looked to unique features of their respective state constitutions to assess whether and to what extent regulations undertaken under the police power go too far. The rationales for evaluating and, in some cases, invalidating regulations under economic liberties principles are creative, and also controversial. The development of new interpretive approaches …

Foreword: Fifty-One Constitutions In An Evolving Federal Order, Misha Bogdanov, Olivia Christ

Northwestern University Law Review

On November 6 and 7, 2025, the Northwestern University Law Review, along with the Brennan Center for Justice and State Court Report, convened for its annual symposium, titled The Power of State Constitutional Rights. The symposium brought together judges, practitioners, and scholars to consider the substantive rights protected by state constitutions, the institutions charged with enforcing them, and the democratic processes through which state constitutional law changes. Across conversations about reproductive freedom, criminal procedure, labor, economic liberty, LGBTQ+ rights, voting, federalism, and judicial design, one proposition repeatedly, and emphatically, came into view: American constitutional law is not exhausted by the …

Textual (In)Difference In State Search-And-Seizure Provisions, Quinn Yeargain

Northwestern University Law Review

Over the past 250 years, state constitutional drafters have refined the scope of rights and liberties protected by their constitutions’ texts. Today, all state constitutions include a search-and-seizure provision—and though only a minority follow the layout, text, and context of the Fourth Amendment to the U.S. Constitution, most of them bear a striking resemblance to it. However, textual variations abound. Some of them may seem minor, like using the word “possessions” instead of “effects,” or mandating that warrants describe their intended targets “as nearly as may be” instead of requiring that they “particularly describ[e]” them. But others, like the addition …

Geduldig's Footnote: Five-Plus Decades Of State Courts Reckoning With Federal Pregnancy Discrimination Doctrine, Martha F. Davis

Northwestern University Law Review

In Geduldig v. Aiello (1974), the U.S. Supreme Court held that pregnancy discrimination does not constitute sex discrimination. The decision’s constitutional logic has recently been applied in Dobbs v. Jackson Women’s Health Organization and United States v. Skrmetti. Yet over five decades, state courts have overwhelmingly rejected Geduldig’s rationale—both in construing state employment discrimination statutes and in interpreting state constitutional equality provisions. Courts in at least sixteen states have rejected Geduldig’s rationale in construing state employment discrimination laws, while only four states have followed it. Of the ten states with Equal Rights Amendments that have addressed whether …

State Constitutional Rights And Judicial Power, Zachary D. Clopton

Northwestern University Law Review

On the one hand, we are in a moment when interest in state courts and state constitutional law is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasing calls for state supreme courts to rely on state constitutions to expand rights. On the other hand, we are in a moment when interest in reducing the power of the courts is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasingly calls for reining in judicial power.

This Essay is not an …

State Greenhouse Gas Emissions Disclosure Laws And The Dormant Commerce Clause: Leveraging The State Interest In Protecting Residents From Deception To Pass The Pike Balancing Test, Matthew Macphail

Northwestern University Law Review

Misleading corporate claims about greenhouse gas emissions pose a high risk of consumer deception, as there is currently no uniform federal standard governing how companies must measure or disclose those emissions. Without a national regulatory scheme, firms can selectively report, use inconsistent methodologies, or market vague “carbon neutral” claims, making it difficult for consumers to assess accuracy or compare companies’ representations.

In 2023, California introduced legislation requiring companies doing business in the state to disclose their greenhouse gas emissions in an effort to bring transparency to this area. But such state-level mandates face a constitutional obstacle: the Dormant Commerce Clause, …

Masthead

Seattle University Law Review

No abstract provided.

Table Of Contents

Seattle University Law Review

No abstract provided.

Book Review: Judicial Originalism As A Byproduct Of An Overly Difficult Amendment Process: Jill Lepore's We The People, Charles Britton

ConLawNOW

This essay reviews the book by Jill Lepore, We the People: A History of the U.S. Constitution, winner of the 2026 Pulitzer Prize for history.  It explains how Lepore examines the history of constitutional amendment—both successes and failures—to argue that frequent amendment was the democratic intent of the Framers. And shows how this amendment philosophy contradicts the originalism of the current Supreme Court.

Washington Search And Seizure Law: 2026 Update, Justice Charles W. Johnson, Justice Debra L. Stephens, Justice Steven González

Seattle University Law Review

This Survey is intended to serve as a resource which Washington lawyers, judges, law enforcement officers, and others can turn to as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. As the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its decisions and reflections on Washington law are discussed.

Most of the Survey cases involve the Washington …

Getting Money Out Of Politics By Putting Money Into Politics: A Few Modest Proposals To Reform Seattle’S Democracy Voucher Program, Decker O’Donnell

Seattle University Law Review

Seattle’s Democracy Voucher Program offers an unconventional response to the growing influence of money in American elections: rather than restricting political spending, it seeks to amplify the participation of ordinary voters by providing publicly funded vouchers that residents may assign to participating candidates. This Article examines the program’s development, operation, and constitutional foundation within the modern campaign-finance framework established by Buckley v. Valeo and subsequent Supreme Court decisions. It argues that democracy vouchers provide a constitutionally viable means of broadening participation in campaign financing while mitigating the influence of wealthy donors. The Article identifies two weaknesses in the current system: …

Who Decides The Dead? Interpreting Washington’S Disposition Of Remains Statute, Wyatt Young

Seattle University Law Review

Washington’s disposition-of-remains statute, RCW 68.50.160, is designed to honor a decedent’s expressed wishes regarding the control and disposition of their body after death. Yet recent litigation reveals a critical gap between the statute’s intent-centered design and its practical enforceability. In Larotonda v. Blackburn, a trial court acknowledged that irreparable harm would occur if a decedent’s burial wishes were ignored but nonetheless denied relief on the grounds that the individual designated to carry out those wishes lacked standing. The result was a legal paradox: a statute that recognizes decedent autonomy in theory but withholds any meaningful mechanism for its enforcement …

Legal Malpractice In Washington: Use Of The Rules Of Professional Conduct, Angelo Tadrous

Seattle University Law Review

Legal malpractice claims are difficult to prove. They are difficult to prove because many jurisdictions require that a plaintiff prove that, but for the lawyer’s misconduct, the client would have fared better. Thus, in a malpractice suit, a plaintiff must try a case within a case. Despite this difficulty, many jurisdictions prohibit the use of the Rules of Professional Conduct when litigating a malpractice case. Washington State is one of these jurisdictions. The Washington Supreme Court held in Hizey v. Carpenter that the Rules of Professional Conduct may not be referred to during trial. This Note argues that this prohibition …

Converting Buildings Is Hard: Why Seattle’S Municipal Government Should Streamline Commercial-To-Residential Conversions, Tyler M. King

Seattle University Law Review

The conversion of commercial buildings into housing is a promising solution to the growing housing crisis in many urban areas. However, despite its potential benefits, the process of repurposing commercial spaces is often stymied by complex zoning codes, high conversion costs, and bureaucratic hurdles. This Article argues that the local and state governments in Seattle should adopt more streamlined policies and offer greater incentives to developers to facilitate these conversions. By reforming zoning regulations and providing targeted financial support, municipalities can reduce the barriers to conversion and unlock the potential of underutilized commercial properties. This article examines the legal and …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Respondents: St. Mary Catholic Parish V. Roy, Catherine Smith, Tanya Washington, Robin Walker Sterling, Suzette Malveaux, Barbara Bennett Woodhouse, Sara S. Hildebrand, Abigail L. Fleming, Jeremiah Chin

Scholarly Articles

This Court should consider those most directly impacted by the decision in this case: the intended beneficiaries of Colorado’s Universal Preschool Program (“UPK”), Colorado’s children. To paraphrase Shakespeare, though they be but little, they are constitutional rights-bearers and are thus entitled to be free from state-funded discrimination.

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the significant harms children in the LGBT community would bear should Colorado be compelled to allow state-funded religious schools to discriminate against preschoolers. Exempting religious schools from the State’s equal-opportunity and antidiscrimination …

Brief Amici Curiae Of New Ways Ministry, Et Al., St. Mary Catholic Parish V. Roy, Leslie C. Griffin, Marci A. Hamilton

Court Briefs

No abstract provided.

Book Review: After Apprendi And Erlinger, The Jury - Not The Judge - Determines Whether Or Not The Defendant Is A Habitual Traffic Offender, Harvey Gee

ConLawNOW

This book review discusses Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration by Rachel Barkow. The review concludes that the book persuasively argues that from the 1960s through the 1980s, the Supreme Court repeatedly departed from constitutional text, history, and precedent in expanding the government’s power to arrest, prosecute, and detain. And contends that these trends both curtailed individual liberty and worsened racial inequality. The review then builds on Barkow’s important scholarship to extend her conversation to cover criminal litigation in general jurisdiction state courts—where people are compelled to go when they are cited or …

Brief For Legal Scholars And Historians As Amici Curiae In Support Of Petitioners, Jackson V. State, Nos. 26-76, 26-78 (U.S Supreme Ct. Aug. 14, 2026), G. Ben Cohen, Seth P. Waxman, Ashley Bierman, Sara Saunders

Akron Law Faculty Publications

Under a Florida law enacted in 2023, a judge may impose the death penalty only if the jury first “determine[s] that the defendant should be sentenced to death.” Fla. Stat. § 921.141(2)(c). The question presented is whether the Sixth or Eighth Amendment requires that jury determination to be unanimous, or whether it suffices—as provided in the statute—for only eight of the twelve jurors to vote for death.

Beyond Walls And Wires: The Supreme Court’S Recognition Of Digital Privacy Under The Fourth Amendment, Joanna Morris

Discovery Day - Daytona Beach

The Founding Fathers included the Fourth Amendment in the Bill of Rights to protect individuals from unreasonable searches and seizures and their right to privacy. However, rapid advances in modern digital technology have challenged traditional definitions of privacy, raising constitutional questions about digital privacy rights. Smartphones and location tracking collects personal information that does not fit neatly within pre-digital era Fourth Amendment doctrines. This research examines how the United States Supreme Court has adapted interpretations of the Fourth Amendment to address digital privacy concerns, focusing on the tensions between Fourth Amendment doctrines and technology that enables extensive government access to …

Kentucky's Alford Predicament: The Case For Curbing Qualified Guilty Pleas In The Commonwealth, Ben Whatley

Kentucky Law Journal

No abstract provided.

The Right To Have Rights In United States Territories, Anthony M. Ciolli

Kentucky Law Journal

No abstract provided.

The Duty To Develop Imperative In Immigration Proceedings, Sabrineh Ardalan, Tiffany J. Lieu

Kentucky Law Journal

No abstract provided.