NULR Online

Introduction:

In this essay, Professor Kagan asserts that recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But, Kagan argues, it would go too far suggest that free speech has no relevance in courtrooms. This essay argues for a way to strike a balance.

Introduction:

In this essay, Professor Morley explains that states generally conduct their elections in a “unitary” manner, applying many of the same rules, requirements, and procedures to races for offices at all levels of government. Morley argues that the unitary status of American elections has evolved into a convention: a principle that people expect to limit government officials’ discretion, despite not...

Introduction:

In this essay, Anderson explores how the police narrative is told in appellate opinions, in light of changing police stories seen in the media. In recent years, video recordings of police violence have upended the traditional narrative of police heroism. The videos have led to discussions of police accountability, yet the controversies surrounding these incidents have also served to highlight...

Introduction:

Fear of persecution based on one’s family ties has long been considered a basis for asylum in the United States. Recently, however, the scope of that protection has come under dispute and, as a result, may be expanding. In this Essay, Blake argues for a more expansive interpretation of these asylum claims, recognizing family-based persecution even when persecutors have multiple motives for targeting their victim.

Introduction:

In this essay, Blocher considers recent developments that have given new hope to those seeking constitutional abolition of the death penalty. Some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty is constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but Blocher argues...

Introduction:

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers...

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In this essay, Koppelman reviews Secular Government, Religious People by Ira C. Lupu and Robert W. Tuttle. Lupu and Tuttle offer a timely examination of how and where religious liberty and American law intersect. Koppelman offers his take and places the book within the scholarship on religious liberty.

Introduction:

In this essay, Litman and Rahman argue that if the Supreme Court grants habeas relief in this month’s Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute...

Introduction:

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by...

Introduction:

In the essay, Professor Bedi discusses a prominent issue in Fourth Amendment jurisprudence: whether an individual's cell phone location data is constitutionally protected. The emergence of this data and law enforcement's attempts to utilize it have raised new questions about the reach of the third-party and public disclosure doctrines, which have traditionally rendered the Fourth Amendment inapplicable to seemingly similar...

Introduction:

In the essay, Dubrowski analyzes Ferguson v. JONAH, a landmark 2015 decision in which a New Jersey court held --- for the first time --- that homosexuality is not a disease or mental disorder as a matter of law. Based on this pretrial ruling, a civil jury unanimously found JONAH (a conversion therapy clinic) its co-directors and its chief counselor...

Introduction:

In the aftermath of the financial crisis, the federal courts have heard arguments in contract disputes involving billions of dollars worth of securitized financial products—yet it is not clear that the federal courts have subject matter jurisdiction over these cases. In this Essay, we advance possible explanations for why parties to default disputes do not raise this possible jurisdictional defect.

Introduction:

In the review, Kovvali discusses and critiques certain philosophical underpinnings of "nudges." Nudges are small interventions that change the context in which decisions are made, thus encouraging individuals to make specific choices. Using an analogy to voting paradoxes, Kovvali shows that nudges exploit a type of irrationality that results when citizens attempt to reconcile inconsistent objectives, and concludes that while...

Introduction:

In the essay, Mr. Pierce discusses what, exactly, the government must prove before it can, consistent with the First Amendment, prosecute someone who posts threatening messages on Facebook. Last Term, a divided Court wrestled with this issue in Elonis v. United States, reversing the defendant's conviction but leaving an important question unanswered: does the government need to prove that a...

Introduction:

On June 26, 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the Fourteenth Amendment. In hindsight, the decision seems inevitable, the culmination of a precisely two-year race towards marriage equality that began with the Court’s 2013 invalidation of the federal Defense of Marriage Act on June 26, 2013. Federal...

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In this essay, Professor Wilson reflects on the manner in which the law treats adolescents who are faced with end-of-life decisions. She begins by surveying the legal framework underlying end-of-life choices at the state and federal levels. She then discusses two decisionmakers - adolescents and adults - and the behavioral traits and biases that animate each when end-of-life decisions arise....

Introduction:

The Tea Party movement and its constitutional vision for the United States is perhaps the hottest topic in American public law today. The rising tide of popular support for the Tea Party movement has transformed what was once cast aside as a fleeting faction into a formidable force in American politics—one that could augur significant consequences for the contours of American constitutional law in the years ahead.

Introduction:

The American criminal justice system is often envisioned as one in which public prosecutors pursue public prosecutions on behalf of the public—leaving no room for crime victims’ involvement. However, state and federal statutes and state constitutional amendments have challenged this vision. Perhaps the best example of such a challenge comes from the Crime Victims’ Rights Act (“CVRA”), a federal statute passed by Congress in 2004 that guarantees victims a series of rights in federal criminal proceedings.

Introduction:

In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This Article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of...

Introduction:

The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics. More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution. Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.

Introduction:

There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains. As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward...

Introduction:

How did the American body politic allow business corporations to threaten members of Congress by saying, credibly, “Do what we want or we’ll bury you!”?

On January 21, 2010, the Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission interpreted the U.S. Constitution’s First Amendment to permit corporations to spend unlimited amounts of money to support or oppose...

Introduction:

International remittances—"cross-border person-to-person payments of relatively low value" sent primarily by international migrants to family members in developing countries—alleviate poverty, support entrepreneurship, and foster the development of financial systems. Until recently, aside from prohibitions on financial interactions with countries such as Cuba or Burma, U.S. regulators have only indirectly addressed these monetary transfers. The Dodd-Frank Wall Street Reform and Consumer...

Introduction:

The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law, and some even contend that popular constitutionalism should supplant judicial...

Introduction:

In an October 2009 Term marked by several significant constitutional rulings, the Supreme Court quietly continued an important multi-term effort towards defining which legal rules properly should be called "jurisdictional." In each of four cases that considered the issue, the Court unanimously rejected a jurisdictional characterization of the challenged legal rule. These cases continue an almost uninterrupted retreat from the...

Introduction:

The credit crisis represents a watershed event for global financial markets and has been linked to significant declines in real economy performance on a level of magnitude not experienced since World War II. Recognition of the crisis in 2008 has been followed in 2009 and 2010 by a plethora of competing proposals in response to the credit crisis. The result...

Introduction:

I. Regulatory Failures and Regulatory Reform

The credit crisis underscores the need for reform of regulatory and industry approaches to risk. Reframing risk should entail greater limitations on leverage and more comprehensive internal company risk management, with both external regulatory monitoring and more robust internal efforts. As a number of post-credit crisis compensation proposals have recommended, companies should also be...

Introduction:

I. Consumers, Industry, and Regulatory Costs

Collection and effective analysis of financial market data may help prevent future crises. The high human costs of market crises, which may significantly affect those least well positioned to bear such costs, make prevention of future crises a high priority. This is particularly true in light of the pervasive financial market networks that characterize...

Introduction:

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause...