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Criminal Law—Under The Gun Of Rehaif V.United States: How State Legislatures And Courts Must Blunt The Effect Of Knowledge, Meaghan E. Collins

Western New England Law Review

For well over thirty years, courts across the nation maintained an interpretational unanimity in applying 18 U.S.C. § 922(g) in thousands of cases. This law specifies that a defendant commits a crime if they were previously convicted of a felony and then later possess a firearm in or affecting commerce. Under the original statutory interpretation, the government was only required to prove that a person knew of their possession of a firearm. However, in 2019, the Supreme Court of the United States overturned that traditional understanding. Under the more recent interpretation, the government is required to prove not only that …

Property Law—Horror, Inc. V. Miller: The Lurking, Underlying Work Beneath Crystal Lake!, Kenneth Stratton

Western New England Law Review

Horror, Inc. v. Miller highlights the tension in copyright law between authors and their grantees. In its decision, the District Court for the District of Connecticut found that screenwriter Victor Miller recaptured his Friday the 13th screenplay by exercising his termination rights. However, the end of the court’s opinion suggested film production company Horror, Inc. may have a claim to the hockey-masked “adult Jason” present in later films. This sets up a conflict between an author seeking to recapture the works they created and grantees who developed sequels based on that work. So, who controls Jason Voorhees?

This Note argues, …

Constitutional Law—Answering Justice Barrett’S Fulton Prompt: The Case For A Narrow Reconsideration Of Free Exercise, Andrew Lavender

Western New England Law Review

In Fulton v. City of Philadelphia, the Supreme Court, for the second time in three years, considered a case involving the conflict between First Amendment religious, speech, and associational freedoms and the civil rights of the LGBTQ community. And, for the second time, the Court arrived at an apparent compromise, issuing a narrow, factual ruling in favor of the party seeking an exception from antidiscrimination law while avoiding any firm precedent that might create a broader exception.

In addition to this substantive dodge, the Court also “sidestep[ped] the question on which certiorari had been granted: whether to overrule Employment …

Defending The Defenders: Why Bureaucratic Independence Is A Necessary Supplement To Judicial Defense Of Democracy The Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic …

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

Unresponsive Judicial Review: How Formalism On The American Bench Thwarts Democracy Defense, Andrea Scoseria Katz

Scholarship@WashULaw

At a time when worldwide democratic decline is of grave concern, Rosalind Dixon’s Responsive Judicial Review is vital and timely. Dixon sketches an attractive vision of courts’ highest role as one of democracy-defense: protecting free and fair elections, ensuring rights and freedoms remain in vigor, muscularly enforcing checks and balances. Granted, argues Dixon, “responsive” courts must exercise their powers in a context-sensitive way; courts in fraught environments cannot get away with quite as much entrepreneurial judging as their counterparts, and they should tailor a remedy to ensure, one, its own feasibility, and two, the court’s survival. The pragmatic character of …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

Less Restrictive Alternatives And The Ancillary Restraints Doctrine, Thomas B. Nachbar

Seattle University Law Review

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects.

American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s …

The Barton Doctrine's Applicability To Suits Against Bankruptcy Trustees When The Bankruptcy Court Lacks Jurisdiction Over The Matter, Chelsea Frankel

Bankruptcy Research Library

(Excerpt)

In Barton v. Barbour, the Supreme Court established the general rule that a lawsuit cannot be brought against a receiver for acts done within their authority without leave of the court that appointed such receiver. The Court precluded a personal injury suit against a company's receiver without leave of the appointing court, finding that if the plaintiff were permitted to recover on his personal injury claim against the receiver, he would be recovering from the receivership property "without regard to the rights of other creditors or the orders of the court which is administering the trust property." The …

The Flag Can Travel But The Constitution Must Ask Permission: How The First Circuit And The District For Puerto Rico Commit To Equal Protection Without Abandoning The Insular Cases Doctrine, Alejandro J. Anselmi González

University of Miami Inter-American Law Review

For American citizens, one of the most important safeguards guaranteed by the Constitution of the United States is the equal protection of the law. The United States prides itself on the doctrine and jurisprudence of equal protection because of the social progression achieved since the end of the Civil War. The Reconstruction Amendments to the Constitution eliminated the institution of slavery and were supposed to guarantee equal civil and legal status to all citizens. The Constitution, however, has not been consistently interpreted in this way since the end of the Spanish-American War in 1898. The nation emerged from this conflict …

Supreme Court Institute Annual Report, 2020-2021, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2020—corresponding to the 2020-2021 academic year— the Supreme Court Institute (SCI) provided moot courts for advocates in 57 of the 58 cases argued at the Supreme Court, offered our annual press and student term preview programs, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted reflect SCI’s commitment to assist advocates without regard to the party represented or the position advanced.

Responding to the COVID-19 pandemic, the Supreme Court took the unprecedented step of hosting all OT 2020 …

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.

Winston Churchill On The American Constitution, Gerard N. Magliocca

St. John's Law Review

(Excerpt)

Though best known for leading Britain during World War II, Winston Churchill was a keen observer of constitutional law. Most of his insights concerned the unwritten conventions of the British Constitution, but Churchill also commented extensively on the American Constitution. Intellectual curiosity and a desire to forge a closer alliance between Great Britain and the United States were at the root of Churchill’s interest in the institutions of what he called “The Great Republic.” As with all things Churchill, his observations on our Constitution were sometimes inspiring, sometimes illuminating, and sometimes noxious.

This Article provides the first comprehensive analysis …

City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas

Northwestern Journal of Law & Social Policy

The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger …

"I Know It When I See It": The Supreme Court And The Changing Definition Of Obscenity, Madelaine Setiawan

Armstrong Undergraduate Journal of History

This research paper analyzes the Supreme Court’s history in defining obscenity by exploring how and why the Supreme Court’s definition of obscenity changed over time through many of the Court rulings and landmark decisions. This paper will look into these cases chronologically from Rosen v. United States (1896) to Miller v. California (1973). This research demonstrates that the key to the changes in defining obscenity lies in the evolution of societal values, where the Court merely adapts to what society demands.

Two Diametrically Opposed Jurists: The Jurisprudence Of Chief Justices Roger B. Taney And Salmon P. Chase, Alexandra M. Michalak

The Cardinal Edge

No abstract provided.

The Aftermath Of Carpenter: An Empirical Study Of Fourth Amendment Law, 2018-2021, Matthew Tokson

Utah Law Faculty Scholarship

Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.

This Article reports the results of a large-scale empirical study of the impact of …

The Return Of A Judicial Artifact? How The Supreme Court Could Examine The Question Of The Nondelegation Doctrine’S Place In Future Cases, Dalton Davis

Helms School of Government Undergraduate Law Review

No abstract provided.

A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet

Arkansas Law Review

I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.” My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated. Whatever the laws are, they don’t make themselves. Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication. So, for …

A Proper Burial, Robert L. Tsai

Arkansas Law Review

In his article, Professor Mark Killenbeck defends both Korematsu v. United States and Trump v. Hawaii on their own terms, albeit on narrow grounds. He goes on to conclude that comparisons of the two decisions don’t hold up. Killenbeck has authored a thoughtful and contrarian paper, but I’m not sold. In my view, Korematsu simply isn’t worth saving; in fact, a more complete repudiation of the internment decisions is overdue. Trump v. Hawaii, too, must also be revisited at the earliest opportunity and its more alarming features that abet presidential discrimination against non-citizens rejected. Moreover, I believe that comparisons between …

Tainted Precedent, Darrell A.H. Miller

Arkansas Law Review

We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability, and rule …

There Was Nothing "Neutral" About Executive Order 9066, Eric L. Muller

Arkansas Law Review

There is no more appropriate place to discuss the Japanese American cases of World War II than in the pages of the Arkansas Law Review. This is not only because Arkansas was the only state outside the Western Defense Command to host not one but two of the War Relocation Authority’s (WRA) concentration camps for Japanese Americans. It is because one of the most important lawyers to oversee the development and administration of all the WRA camps was the dean under whose leadership this law review was founded: Robert A. Leflar. Leflar’s is not a name that constitutional lawyers are …

Korematsu, Hawaii, And Pedagogy, Sanford Levinson

Arkansas Law Review

I begin with some reflections on my own career in teaching—or, perhaps, attempting to teach—American constitutional law to generations of students from 1975 to the present. Or, more accurately, until about three years ago, when I taught introductory constitutional law for the last time. I am quite happy to no longer be teaching that course, whatever joys it did provide me in the past, for a very simple reason: I became more and more frustrated by the demands of coverage, i.e., the duty to take up a variety of topics—including attendant cases and collateral materials—and the unfortunate certainty that what …

Korematsu As The Tribute That Vice Pays To Virtue, Jack M. Balkin

Arkansas Law Review

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what the law regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they …

Sober Second Thought? Korematsu Reconsidered, Mark R. Killenbeck

Arkansas Law Review

How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer’s caution about decisions that have “harm[ed] not just the Court, but the Nation.” Part of an “Anticanon,” resting on “little more than naked racism and associated hokum” and “embod[ying] a set of propositions that all legitimate constitutional decisions must be prepared to refute”? Perhaps. Or is it simply an opinion and result that “has long stood out as a stain that is almost universally recognized as a shameful mistake”?

Symposium: Giving Korematsu V. United States A Sober Second Thought, Nick Bell, Emily Levy, Julian Sharp

Arkansas Law Review

We are elated to present Professor Mark Killenbeck’s thought provoking article, Sober Second Thought? Korematsu Reconsidered. Killenbeck dives into the Korematsu opinion and its history with great care to determine whether it truly “has no place in law under the Constitution” as Chief Justice John Roberts declared in Trump v. Hawaii.1 While Korematsu’s result provides an understandable “impulse to condemn” it, Killenbeck shows us that focusing solely on the case’s result “stands apart from and in stark contrast to its most important place in the constitutional order: articulation of precepts and terminology that provide the foundations for strict scrutiny.”

Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks

ConLawNOW

In May 2021, the Supreme Court granted certiorari in a case designed to overrule Roe v. Wade. The assumption is that six justices are inclined to repudiate Roe, and that some of those six would like to go further, declaring a constitutional right to life that would prevent the abortion issue from going “back to the states” at all. The question for the next year is not whether Roe will be overruled—it already was, in Planned Parenthood v. Casey—but how far the Court will go. This essay describes the arc of the Supreme Court’s abortion jurisprudence in …

The Gun Rights Movement And 'Arms' Under The Second Amendment, Eric M. Ruben

Faculty Journal Articles and Book Chapters

After Donald Trump supporters breached the U.S. Capitol on January 6 wielding weapons including tasers, chemical sprays, knives, police batons, and baseball bats, Sen. Ron Johnson (R-WI) remarked that the insurrection “didn’t seem . . . armed.” Johnson, who is A-rated by the National Rifle Association (NRA), observed, “When you hear the word ‘armed,’ don’t you think of firearms?” For many, the answer is likely yes.

This essay describes how the gun rights movement has contributed to the conflation of arms and firearms. In doing so, it shows how that conflation is flatly inconsistent with the most important legal context …

The Federalist Society And Constitutional Interpretation: Who Gets To Say What The Constitution Says, Deborah L. Toscano

LSU New Orleans Theses and Dissertations

The Federalist Society was organized in 1982 by conservative law students to counteract what they perceived to be a liberal bias in law schools, the courts, and government administration. Forty years later there is an acknowledgement of a rightward turn in the Supreme Court which scholars have attributed in part to the efforts of the Federalist Society. However, there is still little understanding of just how that change came about. This dissertation takes a step toward understanding that question. Viewing the Federalist Society as the center of a network of lawyers, think tanks, and legal institutions, I examine the influence …