Law Commons^™

Jones V. Mississippi And The Court’S Quiet Burial Of The Miller Trilogy, Cara H. Drinan

Scholarly Articles

In addition to its status as the world's largest jailer, the United States is an extreme outlier in its juvenile justice and sentencing practices. As recently as 2005, the United States permitted juvenile execution, and today the United States is the only nation that allows children to be sentenced to life without parole. In the last fifteen years, in a series of cases known as the Miller trilogy, the Supreme Court had been slowly chipping away at the nation's use of the most extreme juvenile sentences-the death penalty and life without parole. That process came to an abrupt end this …

Pursuing A Right To Genetic Happiness, George P. Smith Ii

Scholarly Articles

With the continued expansion of assisted reproductive technology (ART), and society's inability to regulate it, complex medico-legal issues and ethical and social dilemmas are arising. Although the desire to prevent or limit genetic disease by, for example, gene editing and mitochondrial transfer is noble, what has been termed the "customization" of birth, raises the fundamental issue of procreative liberty, and, more specifically, the extent to which the state is obligated to assist in the use of ART which, in turn, validate the quest for genetic happiness. There is a current notion that reproductive freedom includes, within it, a right to …

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Catherine F. Klein, Richard Roe

Scholarly Articles

Teaching About Justice by Teaching with Justice: Global Perspectives on Clinical Education and Rebellious Lawyering is co-authored by cadre of clinicians from around the world: Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Olinda Moyd, Bianca Sukrow, and Christoph König. The piece captures and reflects the content of five presentations at the 2021 Global Alliance for Justice Education (GAJE) biannual gathering, conducted virtually due to the pandemic, with over 450 participants from 45 countries. The piece illuminates many themes and issues in the teaching and practice of transformational justice …

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Scholarly Articles

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …

The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley

Scholarly Articles

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

Why Originalism Is Consistent With Natural Law: A Reply To Critics, J. Joel Alicea

Scholarly Articles

Constitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this reply.

Limiting The Boundaries Of Assisted Reproductive Technology And Physiological Autonomy, George P. Smith Ii

Scholarly Articles

This essay examines, critically, the wide successes of assisted reproductive technology (ART). With these successes have come concerns regarding its potential advancement of the boundaries of fecundity and of new levels of physiological freedom. One particular advancement involves efforts to utilize a phenomenon of nature termed parthenogenesis, or asexual reproduction. The potential for adapting this occurrence as a form of assisted reproduction is of particular interest for members of the LGBTQ community, holding great promise for embryo research and regenerative medicine. Parthenogenetic embryos could be derived from unfertilized human eggs and, thus, blunt--if not resolve--ethical concerns over experimentation on human …

The Role Of Rival Litigation In Wilmarth's New Glass-Steagall, Heidi Mandanis Schooner

Scholarly Articles

The role of private enforcement of public law is an uneven one among financial regulators. Private litigation has played an important role in the enforcement of the federal securities laws since the Supreme Court recognized an implied private cause of action for violations of the anti-fraud provisions. In contrast, courts have been unwilling to establish an implied private right of action under the federal banking laws. Private litigation, however, played a significant role in the enforcement of the Glass-Steagall Act, the New-Deal-era restrictions that separated the financial industry into its three traditional roles: commercial banking, investment banking, and insurance underwriting. …

Towards Nondelegation Doctrines, Chad Squitieri

Scholarly Articles

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each …

The Role Of Adoption In Dobbs-Era Pro-Life Policy, Elizabeth Kirk

Scholarly Articles

It is incumbent upon those who wish to provide alternatives to abortion for pregnant women to advance policies that highlight the unique gifts of adoption in a way that ensures it is a meaningful option. Of course, there are many venues for this to occur, whether in education, media, advertising, private initiative, or legislation. The particular policy appropriate for each state will depend on many factors, including the availability of legal abortion.

The Meaning Of Kansas: Lessons From A Pro-Life Defeat, Elizabeth Kirk

Scholarly Articles

The recent defeat of a pro-life constitutional amendment in Kansas was not a consequence of strategic overreach, nor was it a rebuke of Dobbs. In fact, it followed from the difficulty of communicating complex legal and political principles, as well as navigating the fear and distortion generated by abortion advocates and their media allies. To help secure a pro-life future, we must learn the correct lessons of the Kansas loss, including the need to harness the emotional power of truthful narrative to shape political choices.

Major Problems With Major Questions, Chad Squitieri

Scholarly Articles

This July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes.

The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism—an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway …

Child Welfare Requires Adequate Remedial Services, Raymond C. O'Brien

Scholarly Articles

This Article argues that the focus of child welfare should be upon the adequacy of reasonable services provided to parents prior to and after their child has been declared dependent because of an abuse or neglect allegation. Admittedly, recent federal legislation funding rehabilitation services while permitting a child to remain with an offending parent may result in less trauma, but this feature should not distract from the point that states must develop adequate reasonable services, and these must be provided within a specified period of time. The consequence of inadequate reasonable services, unable to address adverse conduct within a specified …

The “Corporation Revolution” And The Professional Ethics Of Giving Advice On Executive Protection Issues, Sarah Helene Duggin, Shannon "A.J." Singleton, James D. Wing

Scholarly Articles

In today's law enforcement environment, business entities facing criminal investigations and possible indictment have little practical choice but to cooperate with authorities. Cooperation offers the opportunity to avoid a costly trial and attendant adverse reputational, financial, and morale impacts. Resolution of potential criminal charges, however, almost always requires entities to cooperate with law enforcement efforts to impose criminal liability on individual business executives.

While businesses and their executives once generally perceived their interests as closely aligned, the “Cooperation Revolution” of the last few decades has forced corporate boards and business executives to reassess their individual obligations and risks. In so …

Three Kinds Of Fault: Understanding The Purpose And Function Of Causation In Tort Law, Marin Roger Scordato

Scholarly Articles

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate. In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the causation …

Recovering Classical Legal Constitutionalism: A Critique Of Professor Vermeule’S New Theory,, Kevin C. Walsh

Scholarly Articles

Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism: Recovering the Classical Legal Tradition. As scholars self-consciously working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Yet in reading and rereading the book, we found ourselves frustrated with it, notwithstanding the apparent agreement we shared with the author at some abstract level of principle. And that abstraction, it turns out, is just the problem with the book’s application of the classical legal tradition to constitutional law. …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Scholarly Articles

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first …

The Moral Authority Of Original Meaning, J. Joel Alicea

Scholarly Articles

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …

Speeding Up Benefits To Charity By Reforming Gifts To Intermediaries, Roger Colinvaux

Scholarly Articles

Charitable giving tax incentives are intended to encourage giving for public benefit. Gifts to intermediaries frustrate this goal. Presently, $1.26 trillion has accumulated in donor advised funds (DAFs) and private foundations. These are charitable intermediaries that do not benefit the public until they release their funds for public use. Congress has long recognized that intermediaries cause a “delay in benefit” problem because the tax incentive is awarded before the public benefits from the gift. Congress addressed this problem for foundations in 1969 by requiring them to pay out a minimum amount annually. Congress, however, has not addressed the problem for …

Covid-19, Visitation And Spiritual Care: Responding To The Silent Suffering Of The Isolated In Times Of Crisis, Lucia A. Silecchia

Scholarly Articles

No abstract provided.

Cruel And Unusual Youth Confinement, Cara H. Drinan

Scholarly Articles

In a series of cases known as the Miller trilogy, the Supreme Court recognized that children are both less culpable and more amenable to rehabilitation than adults, and that those differences must be considered at sentencing. Relying on the principle that kids are different for constitutional purposes, the Court abolished capital punishment for minors and significantly limited the extent to which minors can be subject to life-without-parole ("LWOP') terms. Equally important, the Miller trilogy was predicated on the concept of inherent human dignity, and it recognized the youthful prisoner's need for "hope" and "reconciliation with society." While scholars have grappled …

A Civil Shame: The Failure To Protect Due Process In Discretionary Immigration Bond Hearings, Stacy Brustin

Scholarly Articles

Over the last four years, the US Supreme Court has granted certiorari in four immigration bond review cases. The sheer number of cases the Court has recently considered underscores the significance of this area of immigration law. Each case centers on whether the Immigration and Nationality Act or the Constitution mandates a bond review hearing after prolonged detention. Yet these cases leave unresolved the issue of whether initial bond hearings themselves meet the due process threshold required of civil confinement proceedings. Federal circuit and district courts have addressed aspects of this question and found procedural due process violations. However, most …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Scholarly Articles

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

The New Disestablishments, Marc O. Degirolami

Scholarly Articles

This Article attempts to map out a set of social and legal phenomena-features of what it calls the new establishment, responses to it, and possible implications of dissenting new disestablishments-without offering an evaluation either of the new establishment or the new disestablishments. That is, this Article tries to point out the structural conditions within which claims of religious free exercise are now situated, but it does not opine on the morality or justice of the general social structure or the dissenting views that it discusses. Like everyone, I have my views about these subjects, but I have tried, as much …

Executive Decisions After Arthrex, Jennifer L. Mascott, John F. Duffy

Scholarly Articles

Decisionmaking in the modern executive branch frequently rests on a convenient formalism. Ultimate power is typically vested in high-level “principal” officers who, under the Appointments Clause, must be appointed by the President with the advice and consent of the Senate. The vast bulk of day-to-day decisions within the branch, however, are made by thousands of lower-level officials who are either “inferior” officers appointed under the Appointments Clause or mere employees lacking any official appointment under modern doctrine. United States v. Arthrex marks out a constitutional limit to this modern allocation of power. Whatever de facto power lower-level officials possess as …

Private Delegation Beyond Executive Supervision, Jennifer L. Mascott

Scholarly Articles

Over the past decade, the Supreme Court has reworked the landscape of executive branch supervision. The Court has both addressed the scope of executive officials subject to the Constitution’s selection constraints in the Appointments Clause and imposed limits on the tenure protections that Congress can bestow on senior agency officials. This refashioning retrenched the functionalist approach that had taken hold in the twentieth century and culminated in the Court’s 1989 blessing of independent counsels with authority to investigate the Executive Branch from within.

One less-explored question is the degree to which federally prescribed tasks can be carried out by individuals …

Federal Officer Suits By Common Law, Jennifer L. Mascott, R. Trent Mccotter

Scholarly Articles

This term, the U.S. Supreme Court all but nailed the door shut on one of the modern era’s last remaining vehicles for monetary damages to heap accountability on bad-acting federal officials. In a 5-1-3 decision, the Court rejected the extension of Bivens relief to retaliation and assault claims stemming from a border confrontation.

This may trouble individuals concerned with history. Founding-era evidence suggests that damages suits against federal officers provided an important complement to impeachment as an accountability mechanism outside the hierarchical structure of executive branch direction and command. As scholarship has previously explained, for many decades after the ratification …