Law Commons^™

Cherry-Picking History: Witchcraft, The Common Law, And The Weaponization Of Substantive Due Process, Sarah E. Bradley

William & Mary Journal of Race, Gender, and Social Justice

In 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law …

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith

Washington Journal of Social & Environmental Justice

No abstract provided.

Symposium: Gender, Health, And The Constitution: Reforming Clinical Trial Pregnancy Exclusions, Jennifer D. Oliva

ConLawNOW

This essay argues the exclusion of pregnant people from drug and biologic clinical trials is paternalistic, unjust, and counterproductive because the failure to include pregnant people in experimental trials can enhance risks to maternal and fetal health. Bioethicists, legal scholars, and other researchers have pleaded for reform in this context for decades. This article describes pregnancy medical drug use and the genesis and evolution of federal regulations and policies that operate to exclude pregnant people from clinical trials. It argues that the implementation of legal reforms that ensure the inclusion of pregnant people in clinical trials is imperative given Covid, …

How Crime Dramas Undermine Miranda, Ian Farrell, Nancy Leong

Sturm College of Law: Faculty Scholarship

In the half-century since the Supreme Court decided Miranda v. Arizona, custodial interrogations have become a mainstay of popular culture. Even casual viewers of police procedurals will be exposed to hundreds of depicted arrests, interrogations, and other law enforcement conduct. It has become commonplace for courts, commentators, and the general public to assert that people learn about their rights from television.

Yet if people do in fact learn about their criminal procedure rights from television, what they are learning is dangerously inaccurate. In a comprehensive content analysis of ten seasons, totaling 229 episodes, drawn from the two most highly watched …

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

Judicial Review In Public And Private Governance, Tomer S. Stein

Scholarly Works

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it. Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and incoherence in the use and application of substantive standards of review. The resulting disarray is explicitly acknowledged by the very judges that formulate these standards of …

On Traditionalism In Free Speech Law, R. George Wright

Journal of Legislation

No abstract provided.

Against Gap-Filling, Noah C. Chauvin

Cardozo Law Review de•novo

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a …

Loper Bright In A Larger Interpretive Perspective: Is This Justice Scalia’S Court Anymore?, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are …

Cognitive Content Moderation: Freedom Of Thought And The First Amendment Right To Receive Subconscious Information, Mason Marks

Scholarly Publications

In the television series Severance, employees of Lumon Industries receive brain implants that divide their memories of work and home life. When employees arrive at work, implants block access to memories of the outside world and unlock memories formed on the job. By manipulating the flow of information in employees' brains, Lumon engages in what this Article calls cognitive content moderation. Though Severance is science fiction, emerging technologies, including drugs and electronic devices, promote cognitive content moderation by influencing thought, memory, and perception. Constitutional law is unprepared. To clarify freedom of thought and make it more useful, this Article presents …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

Scientific Context, Suicide Prevention, And The Second Amendment After Bruen, Eric Ruben

Faculty Journal Articles and Book Chapters

The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide- prevention laws, and, in doing so, illuminates another form of change that complicates Bruen’s implementation: scientific progress.

As this Article shows, early generations of Americans fundamentally misunderstood mental …

Suppressing Learning About Race And Law: A New Badge Of Slavery? – A Brief Commentary, Leroy Pernell

Journal Publications

[There is a war being waged against African Americans, and their ability to speak out against racial injustice, which is more intense than any past attempt at suppression, since post-reconstruction in America. This war has been characterized by state legislative initiatives aimed at denying consideration or discussion of Critical Race Theory. Under the guise of “Anti-WOKE,” states, such as Florida have sought not only to prevent serious discussion of Critical Race Theory, but to broaden the attack to deny advocacy or discussion of the more general issue of systemic role of race in our understanding of American jurisprudence, as well. …

Exploring "Coopetition" In The Electric Vehicle Energy Market: An Analysis Of The Ev Battery Competition Between China And South Korea, Alvin Hoi-Chun Hung

South Carolina Journal of International Law and Business

This article employs a techno-econo-legal approach to analyze the potential “coopetition” (i.e., cooperation between competitors) between China and South Korea in the electric vehicle (EV) energy market. The investigation assesses a wide range of techno-econo-legal factors, including battery capacity, energy density, innovation, production capacity, and legal considerations. These legal considerations encompass intellectual property rights, trade practices, and environmental regulations. The central argument of this analysis posits that while South Korea holds an advantage in technological innovation, China’s superior production capacity and governmental support present significant challenges. The relative success in this domain relies not only on technological proficiency and resource …

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

The Riddle Of Race-Based Redistricting, Travis Crum

Scholarship@WashULaw

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause …

Washu Expert: Can Trump Bypass Senate Approval Of Controversial Cabinet Nominees?, Andrea Scoseria Katz, Neil Schoenherr

Scholarship@WashULaw

Andrea Katz, an associate professor of law at Washington University in St. Louis, is an expert on constitutional law, with a focus on presidential power. Here, she discusses how Cabinet members are traditionally appointed and whether the Senate or the Supreme Court could stop Trump from doing an end-around on tradition.

Digital Rummaging, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes.

The Fourth Amendment—the constitutional protection meant to limit police search powers—has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about “reasonable expectations of privacy” and “trespass” searches. While the Supreme Court has acknowledged that “digital is different,” it has not yet provided a coherent …

Judicial Fidelity, Caprice L. Roberts

Journal Articles

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet.

Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends longstanding …

The Next Generation, Jeremiah Chin

Articles

What would the law look like if we let children remake it? Laws govern, classify, and circumscribe children who inherit the law and its consequences. Discourses of power invoke children as rhetorical strategies to gain political favor or obviate a position—yet children are uncritically excluded from participating in the systems that control them. Children are subjected to the laws and objects of legislation, but denied the rights, autonomy, or authority to participate in the making of law and policy. Even the conceptualization of the constitutional rights of children is treated as an assumption, ill-defined and under theorized by traditional legal …

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

Creditor Courts, Alexander Billy, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

One of the largest institutional creditors in the United States is perhaps the most unexpected: the criminal court system. Each year, creditor courts collect more than $15 billion in revenues from criminal defendants. These fees are the lifeblood of the modern criminal legal system.

In this Article, we shed new light on the legal and economic framework under which myriad stakeholders operate in these creditor courts. By analyzing new survey data from clerks of court and 102 contracts with debt collection agencies in Florida, we provide general insights how creditor courts distort incentives and teem with conflicts of interest. These …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.

To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …

Shadow Districts, Quinn Yeargain

Cardozo Law Review

Redistricting disputes—for congressional, state legislative, and local districts—have proven all-consuming in politics. Litigation over the legality of districts, under both federal and state law, is near constant when decennial redistricting occurs. But largely omitted from redistricting litigation and scholarship, however, are the districts drawn to elect members of statewide boards. These boards have outsized authority over some of the most salient disputes in politics today, with state boards of education setting policies for what can be taught in classrooms and how LGBT students are treated by the public education system, public utility commissions adopting policies for renewable energy production and …

No Bullying Allowed Here: Adopting A Misuse Doctrine To Defeat Trademark Bullies, Jessica Shechtman

Cardozo Law Review

In order to maintain trademark rights, trademark owners are encouraged to enforce and police their trademarks through civil actions. Enforcing trademark rights is encouraged and incentivized by the Lanham Act because failure to do so may result in harsh consequences for trademark owners. Some of these consequences include weakening of strength or abandonment of the mark, which may result in loss of trademark rights. However, large companies go above and beyond to police and protect their trademarks. At times, this overenforcement is unethical and crosses a fine line between following the law and abusing the law, causing a number of …

Recalibrating Bruen: The Merits Of Historical Burden-Shifting In Second Amendment Cases, Kevin G. Schascheck Ii

Belmont Law Review

After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically for all gun laws. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.

This Article explains the underdeveloped interaction between two principal Second Amendment doctrines - presumptions of legal validity and historical analyses. That interaction, framed in its simplest terms, …

The Uncertain Future Of Constitutional Democracy In The Era Of Populism: Chile And Beyond, Samuel Issacharoff, Sergio Verdugo

University of Miami Law Review

Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the …

The Rise Of Technology And Its Effect On Search And Seizure Analysis: The Constitutionality Of Geofencing Warrants Under The Supreme Court's Fourth Amendment Jurisprudence, Tyler J. Schembri

South Carolina Law Review

No abstract provided.