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Full-Text Articles in Law
Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli
Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli
Faculty Scholarship
Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …
John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell
John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Unpacking Third-Party Standing, Curtis A. Bradley, Ernest A. Young
Unpacking Third-Party Standing, Curtis A. Bradley, Ernest A. Young
Faculty Scholarship
Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right holder and the right holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. This Article argues that much of the doctrine’s perceived incoherence stems from the Supreme Court’s attempt to capture, in a single principle, disparate scenarios raising distinct problems of both theory …
Firearms, Extreme Risk, And Legal Design: "Red Flag" Laws And Due Process, Joseph Blocher, Jacob D. Charles
Firearms, Extreme Risk, And Legal Design: "Red Flag" Laws And Due Process, Joseph Blocher, Jacob D. Charles
Faculty Scholarship
The most prominent recent development in gun regulation has been the spread of extreme risk protection order (ERPO) laws—often called “red flag” laws—which permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in eighteen states and the District of Columbia, and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for …
The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams
The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams
Faculty Scholarship
In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.
This Article …
Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs
Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs
Faculty Scholarship
[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]
BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:
1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;
2) That Congress has not sought to license the state’s exercise of jurisdiction; and
3) That such a license would be void under the Fourteenth Amendment.
BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …
Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett
Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett
Faculty Scholarship
Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …
Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison
Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison
Faculty Scholarship
The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …
The Death Penalty And The Fifth Amendment, Joseph Blocher
The Death Penalty And The Fifth Amendment, Joseph Blocher
Faculty Scholarship
Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?
Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …
Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West
Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West
Faculty Scholarship
No abstract provided.
Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar
Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar
Faculty Scholarship
No abstract provided.
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
Faculty Scholarship
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Quo Vadis, Posadas?, William W. Van Alstyne
Quo Vadis, Posadas?, William W. Van Alstyne
Faculty Scholarship
This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.
Parole Revocation And The Right To Counsel, Paul W. Grimm
Parole Revocation And The Right To Counsel, Paul W. Grimm
Faculty Scholarship
No abstract provided.
The Tentative Emergence Of Student Power In The United States, William W. Van Alstyne
The Tentative Emergence Of Student Power In The United States, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
A Constitution For Every Man, William W. Van Alstyne
A Constitution For Every Man, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Procedural Due Process And State University Students, William W. Van Alstyne
Procedural Due Process And State University Students, William W. Van Alstyne
Faculty Scholarship
This examination seeks to address the problems both universities and students confront regarding the growth of student expression. It is noted that contemporary students sometimes have fewer rights than petty criminals and this article explores the common reasons behind universities’ abbreviated procedures and reconcile those reasons with students’ emerging Fourteenth Amendment rights.
Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne
Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne
Faculty Scholarship
No abstract provided.