Lawyer.2d
View PDF ARTICLE THE STRUCTURE OF CRIMINAL FEDERALISM Erin C. Blondel* Scholars and courts have long assumed that a limited federal government should stick to genuinely “federal” crimes and leave “local” crimes to the states. By that measure, criminal federalism has failed; federal criminal law largely overlaps with state crime, and federal prosecutors regularly do seemingly […]
View PDF ARTICLE SPECIFIC PERFORMANCE: ON FREEDOM AND COMMITMENT IN CONTRACT LAW Hanoch Dagan* & Michael Heller** When should specific performance be available for breach of contract? This question—at the core of contract—divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has […]
View PDF ARTICLE THE LIMITATIONS OF PRIVACY RIGHTS Daniel J. Solove* Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure (deletion), right to […]
View PDF ARTICLE CONGRESSIONAL POWER, PUBLIC RIGHTS, AND NON–ARTICLE III ADJUDICATION John M. Golden* & Thomas H. Lee** When can Congress vest in administrative agencies or other non–Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that […]
View PDF ARTICLE A PROPHYLACTIC APPROACH TO COMPACT CONSTITUTIONALITY Katherine Mims Crocker* From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each […]
View PDF ARTICLE THE LIMITS OF CHURCH AUTONOMY Lael Weinberger* American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy […]
View PDF ARTICLE ON THE RIGHTFUL DEPRIVATION OF RIGHTS Frederick Schauer* When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights […]
View PDF NOTE THE FIRST AMENDMENT AND MILITARY JUSTICE Joshua Paldino* INTRODUCTION In his order in U.S. Navy SEALs 1-26 v. Biden, Judge Reed O’Connor opened by stating that “[o]ur nation asks the men and women in our military to serve, suffer, and sacrifice. But we do not ask them to lay aside their citizenry […]
View PDF ARTICLE SOCIAL TRUST IN CRIMINAL JUSTICE:A METRIC Joshua Kleinfeld* & Hadar Dancig-Rosenberg** What is the metric by which to measure a well-functioning criminal justice system? If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count? Remarkably, […]
View PDF ARTICLE STATE DIGITAL SERVICES TAXES:A GOOD AND PERMISSIBLE IDEA(DESPITE WHAT YOU MIGHT HAVE HEARD) Young Ran (Christine) Kim* & Darien Shanske** Tax systems have been struggling to adapt to the digitalization of the economy. At the center of the struggles is taxing digital platforms, such as Google or Facebook. These immensely profitable firms […]
View PDF ARTICLE SOLIDARITY FEDERALISM Erin F. Delaney* & Ruth Mason** Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government. This Article approaches federalism from a different perspective, one that focuses on state solidarity. We explain how solidarity structures […]
View PDF ARTICLE THE CONSTITUTIONAL LAW OF INTERPRETATION Anthony J. Bellia Jr.* & Bradford R. Clark** The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal […]
View PDF NOTE PUT MAHANOY WHERE YOUR MOUTH IS:A CLOSER LOOK AT WHEN SCHOOLSCAN REGULATE ONLINE STUDENT SPEECH Courtney Klaus* INTRODUCTION It was the Snapchat story that sparked four years of litigation,1 viral press coverage,2 and a trendy t-shirt design3 : “Fuck school fuck softball fuck cheer fuck everything.”4 By June of 2021, it was finally […]
View PDF NOTE DEMOCRACY’S FORGOTTEN POSSESSIONS: U.S. TERRITORIES’ RIGHT TO STATEHOOD THROUGH CONSTITUTIONAL LIQUIDATION Joshua Stephen Ebiner* INTRODUCTION The United States has five permanently inhabited, unincorporated territories—American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands (the “Territories”)—which account for approximately four million U.S. citizens and nationals.1 The concept of an […]
View PDF ARTICLE DEBS AND THE FEDERAL EQUITY JURISDICTION Aditya Bamzai* & Samuel L. Bray** The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that […]