Beyond the Marks Rule
The full text of this Article may be found by clicking on the PDF link to the left. This Article explores a basic question of precedent formation: When a majority of the Supreme Court cannot agree on a...
View ArticleCommonwealth v. Eldred
State trial court judges sit at the heart of the opioid crisis.1×1. See, e.g., Opioids and the Courts, Nat’l Ctr. for St. Cts., https://www.ncsc.org/opioidsandcourts [https://perma.cc/AQG3-AUS6];...
View ArticleFaithful Execution and Article II
The full text of this Article may be found by clicking on the PDF link to the left. Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care...
View ArticleThe Border Search Muddle
Fourth Amendment originalism is hard.73×73. The literature on this point is substantial (and diverse in its conclusions). See Morgan Cloud, Searching Through History; Searching for History, 63 U. Chi....
View ArticleVasquez v. Foxx
In 2003, the Supreme Court rejected a constitutional challenge to the Alaska Sex Offender Registration Act,1×1. 1994 Alaska Sess. Laws ch. 41, § 4 (codified at Alaska Stat. §§ 12.63.010–.100 (2018))....
View ArticleMitchell v. Wisconsin
Drunk driving, as the Supreme Court has repeatedly, emphatically made clear, poses a significant threat to public safety.821×821. See, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2166 (2016)...
View ArticleGamble v. United States
The Double Jeopardy Clause requires that no defendant “be subject” to prosecution twice “for the same offence.”706×706. U.S. Const. amend. V. But under the “separate sovereigns” doctrine, the Supreme...
View ArticleHerrera v. Wyoming
As the United States expanded and its territories received statehood, questions naturally emerged about how the nature of relationships between the territories and Indian tribes on those lands would...
View ArticleKnick v. Township of Scott
The state-litigation requirement for takings claims has been subject to vitriol ever since its establishment in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City508×508....
View ArticleVirginia House of Delegates v. Bethune-Hill
Legislative standing is litigated with increasing frequency,412×412. For example, the U.S. House of Representatives recently stepped in to defend the Affordable Care Act, after the Trump Administration...
View ArticleFree Speech and Justified True Belief
The full text of this Article may be found by clicking on the PDF link to the left. Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation....
View ArticleOf Priests, Pupils, and Procedure: The Ministerial Exception as a Cause Of...
In 1972, the Fifth Circuit recognized a First Amendment right for religious ministries to select their own religious ministers and manage the employment relationship free from government...
View ArticleDavis v. Guam
The application of constitutional law to the permanently inhabited unincorporated United States territories155×155. These territories are Puerto Rico, the Northern Mariana Islands, American Samoa,...
View ArticleBaca v. Colorado Department of State
Following the presumptive election of Donald Trump as President of the United States on November 8, 2016, concerned citizens mounted a last-ditch effort to convince presidential electors to deny him...
View ArticleUnited States v. Schmidt
At the sentencing stage, federal criminal judges must use the factors outlined in 18 U.S.C. § 3553(a) to guide sentencing decisions. Occasionally, judges must decide whether evidence of speech and...
View ArticleFirst Amendment Coalition of Arizona, Inc. v. Ryan
After officials injected Joseph Wood, a death row inmate in Arizona, with lethal drugs, he reportedly rose up and spent nearly two hours struggling to breathe before at last succumbing to his...
View ArticleThe Prisoner Trade
It is tempting to assume that the United States has fifty distinct state prison systems. For a time, that assumption was correct. In the late twentieth century, however, states began to swap prisoners...
View ArticleAtwater and the Misdemeanor Carceral State
Introduction Mac was three years old and Anya was five when, sitting in the family car, they watched a police officer arrest their mother for a seat belt violation.1×1. Marcia Coyle, Three Who Dared:...
View ArticleThe New Maternity
The full text of this Article may be found by clicking on the PDF link to the left. Constitutional law has long assumed that mothers and fathers are fundamentally different. Maternity, that law posits,...
View ArticleTwo Models of the Right to Not Speak
Introduction: “One Damned Case After Another”214×214. Eugene Volokh, The First Amendment: Problems, Cases, and Policy Arguments 546 (2001) (quoting Joseph H. Sommer, Against Cyberlaw, 15 Berkeley Tech....
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