Authors:Amy Walker Abstract: Since its inception in 1984, the U.S. Sentencing Commission (the “Commission”) has struggled to garner and maintain a sense of legitimacy among federal judges. The tension is both a story about competing expertise between judges and the Commission and competing values, namely uniformity and individuality. In 1993, the U.S. Supreme Court in Stinson v. United States prioritized uniformity by telling lower courts to treat the Commission as they would any other administrative agency. Lower courts—for the most part—faithfully executed this directive until 2019, when the Supreme Court in Kisor v. Wilkie gave them another option, one that seemed to leave room for more judicial discretion and, therefore, more sentence individualization, but at the expense of uniformity goals.This Note examines the circuit split over what level of deference federal judges owe to the commentary to the U.S. Sentencing Guidelines. This Note then advocates for the Supreme Court to abandon deference doctrines in the sentencing context altogether. Instead, this Note suggests that the Court adopt a new approach—what this Note calls the “cooperative partner” approach, inspired by how judges interact with the Advisory Committee Notes that accompany the Federal Rules of Civil Procedure. This Note concludes by arguing that the cooperative partner approach recognizes and respects the sui generis nature of the Commission in ways that encourage key sentencing actors—namely, federal judges, the Commission, and Congress—to prioritize rationality and fairness in federal sentencing. PubDate: Tue, 14 May 2024 10:01:20 PDT
Authors:Sayer Paige Abstract: Jurisdiction-by-registration is the idea that by virtue of registering to do business in a state, corporations prospectively consent to jurisdiction on claims made against them in that state. For decades, this concept has stagnated behind the minimum contacts analysis developed by International Shoe Co. v. Washington and its progeny. Among other reasons, plaintiffs and states were not sure whether jurisdiction-by-registration withstood the Due Process Clause. But as the U.S. Supreme Court continued to narrow the limits of contacts-based jurisdiction, plaintiffs returned to registration based jurisdiction to recapture corporate defendants. Courts largely rejected these assertions. Then, in Mallory v. Norfolk Southern Railway Co. , the Supreme Court reversed course, holding that jurisdiction-by-registration, specifically general jurisdiction-by-registration, still passes due process muster.This Note focuses on the curious trend that Mallory raises: although states have increasingly extended their apparent contacts-based jurisdiction to the constitutional limit, they have also rejected registration-based general jurisdiction. Now that Mallory is on the table, however, two paths appear viable: maximalist states will either (1) continue to discard jurisdiction-by registration or (2) assume at least some version of jurisdiction-by-registration to reassert jurisdictional control. This Note argues that whether a state falls into the first or second category depends on the state’s corporate incentives. It further argues that states should refine their registration statutes to clarify their jurisdictional impact, if any. Finally, this Note provides an overview of states’ current jurisdiction-by-registration statuses. PubDate: Tue, 14 May 2024 10:01:19 PDT
Authors:Josh Saul Abstract: The U.S. Supreme Court held human genes to be unpatentable subject matter in Association for Molecular Pathology v. Myriad Genetics, Inc. The implications from this decision were, and to a large extent still are, unclear. However, in the decade since this decision, a number of studies have begun to shed light on the fallout of Myriad. This Note examines such studies and finds that they suggest a decline in investment and innovation in the biotech industry. In order to promote research and innovation in the field of genetics, this Note then advocates for legislative action to reestablish the validity of gene patents. This Note concludes by proposing a novel solution to the question of gene patent eligibility, suggesting that a narrowly tailored grant of patent eligibility to mutant variants of genes can strike the right balance of incentive and innovation for gene patents. PubDate: Tue, 14 May 2024 10:01:19 PDT
Authors:Charis Franklin Abstract: The Voting Rights Act of 1965 (“the Voting Rights Act”) is one of the primary vehicles by which plaintiffs receive injunctive relief ahead of elections. More specifically, § 2 of the Voting Rights Act allows plaintiffs to challenge gerrymandered maps before they are used in contentious elections. However, Justice Kavanaugh’s reframing of the Purcell doctrine in Merrill v. Milligan weakened § 2’s ability to interrupt the use of these maps. This Note discusses how Justice Kavanaugh’s interpretation of the Purcell doctrine recenters the doctrine on bureaucratic inconvenience rather than voter enfranchisement, restricting voters’ access to relief prior to elections. Furthermore, this Note addresses how this restructuring is inconsistent with the intent of the Voting Rights Act and the Purcell doctrine. As a solution, this Note proposes a narrow interpretation of the Purcell doctrine focusing on voter enfranchisement through a strict application of the Gingles factors and a narrow timeline for redistricting. PubDate: Tue, 14 May 2024 10:01:18 PDT
Authors:W. Robert Thomas et al. Abstract: Corporate punishment has a branding problem. Criminal sanctions should call out wrongdoing and condemn wrongdoers. In a world where generic corporate misconduct is a daily affair, conviction singles out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve, deters future wrongdoers who want to preserve their good name, and publicly reinforces society’s most treasured values.Unfortunately, corporate punishment falls far short of all these communicative ambitions. For punishment to convey its intended message, society must be able to hear about it. When courts convict individuals, everyone understands that the conviction places a mark of enduring stigma: “felon,” “thief,” “murderer,” and “fraudster.” The state reinforces this communiqué by reserving its harshest and most degrading treatment for individual criminals, caging them and possibly killing them. Corporate punishment, by contrast, is a fleeting affair diluted by civil and administrative off-ramps, public relations spin, and a frenetic media environment. In today’s criminal justice system, it can be hard to identify who the corporate criminals even are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal fines as mere costs of doing business. Public perceptions have largely followed suit.Corporate criminal law could disrupt this perverse dynamic by adopting a new sanction that would “brand” corporate criminals. Although branding sanctions could take many forms—different visual marks of varying size—this Article calls for, at a minimum, appending a criminal designation, ⓕ, to corporate felons’ legal names and mandating its appearance on products and communications. This “corporate criminal brand” would stand as a twenty-first century corporate reimagining of its medieval corporal namesake. Lawmakers rightly rejected physical brands on individual criminals long ago. The criminal justice landscape is different for corporations, which feel no pain and have no dignity interests. Unlike monetary fines, corporate criminal branding would unambiguously signal a corporation’s criminal status to outside observers. By forcibly integrating corporations’ criminal identity into their public image, criminal law might finally have a way to recognize victims and strike at what corporations value most. PubDate: Tue, 14 May 2024 10:01:17 PDT
Authors:Jonathan L. Marshfield Abstract: Fears about the health of American democracy are high. And with the U.S. Supreme Court loosening federal constraints and returning critical substantive issues to the states, there is new and particular interest in the democratic quality of state institutions. Although some see opportunity in this decentralization, there is also good reason to believe that many states are failing to deliver on America’s democratic ideals. There are growing concerns, for example, that many state legislatures are enacting laws wildly misaligned with majority preferences on important issues like guns, abortion, LGBTQ+ rights, and healthcare. There are also deeper structural concerns regarding partisan gerrymandering, voting rights, and regressive power stripping within state governments. To the extent that American democracy increasingly depends on existing state institutions, there is good reason to believe that this structure is precarious.This Article is the first to explore how the state constitutional convention might help address contemporary concerns about American democracy. My core claim is that the independent state convention is well designed to address certain aspects of contemporary democratic decay—specifically, systemic misalignment between statewide popular majorities and government. At its core, the state constitutional convention is designed to empower majorities over political elites and privileged private interests. Its defining features are the special election of a unicameral body of representative delegates with the sole mandate to debate and draft constitutional reform subject to a statewide referendum. Drawing on important theoretical and empirical work from political scientists, I show that the convention’s unique design tends to diminish the influence of special interests, facilitate moderation, and empower popular majorities. As a result, the state convention deserves more serious consideration in conversations about democratic reform in America. It could, for example, be a more constructive venue for conversations about redistricting, ranked choice voting, open primaries, campaign finance, allocation of Electoral College votes, and a host of other popular reforms that could improve American democracy but now run headlong into opposition from entrenched party leaders and special interests.There are, of course, real limitations and dangers in holding a state constitutional convention. The most notable are foreclosure or sabotage by state legislatures, voter manipulation by interest groups, and the possibility of a majoritarian but illiberal constitutional convention. I propose several novel solutions in response to these concerns that reimagine how state courts and Congress might revive state conventions as constructive democratic institutions. I conclude by suggesting that American democracy would be improved if the state constitutional convention was a more accessible and credible institution because it would change the political calculus of misaligned state officials and special interests. PubDate: Tue, 14 May 2024 10:01:16 PDT
Authors:Erin Murphy Abstract: The Court’s categorical recognition of bias as a constitutionally protected, and therefore rape-shield recognized, exception to the general bar on evidence of sexual history has led to questions about whether other forms of impeachment might also evade rape shield restrictions. In particular, courts have grappled with the admissibility of impeachment by evidence of a prior false accusation (PFA).The current treatment of PFAs is inconsistent and controversial for several reasons. First, as explained further in Part I, there is a lack of clear guidance in the rules about how such evidence should be treated. Second, of course, there are the contradictory political and social forces referenced above, which resulted in a history replete with examples of disbelieving and smearing credible complainants, as well as of believing and acting on false accusations. Last, perhaps, legal actors are reluctant to take a side in what feels like a binary debate between those who “believe all women” and those who, like Sir Matthew Hale, view rape as an accusation “easily to be made . . . and harder to be defended.” Ultimately, these factors have led to inconsistent and unjust treatment of prior false-accusation evidence—both in the sense of admitting evidence that should be excluded and excluding evidence that should be admitted.In Part II, this Essay argues that evidence of a witness’s PFA is so distinctive and powerful as a form of impeachment that it is imperative for a factfinder to be able to consider it, so long as the PFA is first shown to be of sufficient reliability. Because the existing rules inadequately address the issue and courts have failed to articulate and apply a consistent rule, Part III of this Essay proposes adopting a new rule along with providing suggested text. Although propelled by the concerns surrounding PFAs in the sexual assault context, it is essential to note that the logic behind the rule, and thus the rule itself, applies to all case types and all witnesses, not just to sexual assault complainants. PubDate: Tue, 14 May 2024 10:01:15 PDT
Authors:Edward J. Imwinkelried Abstract: Part I of this Essay argues that the substantive and procedural standards for admitting bad acts evidence under Rule 404(b) have been toughened. As a matter of substance, several courts have repudiated the use of buzzwords such as “res gestae,” and other courts now subject prosecution proffers to more rigorous scrutiny when the government endeavors to invoke such theories as the doctrine of objective chances, the inextricable intertwinement doctrine, and proof of plan. Perhaps even more importantly, on the procedural front, there are now pretrial notice requirements that give the defense much more time to evaluate and critique the prosecution’s claims that the evidence in question possesses legitimate, noncharacter relevance. For their part, many appellate courts are pressuring trial judges to administer limiting instructions that single out the supposed noncharacter theory and explain the theory in clear, detailed terms.Part I concludes by predicting that in the long term, the tightening of Rule 404(b)’s substantive and procedural standards will give prosecutors a powerful incentive to resort to Rule 608(b) as an alternative justification for informing the jury of the accused’s other misdeeds. Currently, prosecutors make minimal use of Rule 608(b). Prosecutors prefer Rule 404(b) as a theory of admissibility because it permits the substantive use of extrinsic testimony about an accused’s other misconduct. Given the courts’ past receptivity to Rule 404(b) evidence, prosecutors have felt little need to turn to Rule 608(b), which allows the testimony to be used only for the limited purpose of impeachment and restricts resort to extrinsic evidence. For the last three decades, I have made it a practice to scan every opinion published in a Federal Supplement advance sheet. It speaks volumes that the typical Federal Supplement advance sheet contains multiple 404(b) cases but no 608(b) cases. In the near future, that might change.Part II discusses the problems that will arise if prosecutors begin to shift toward Rule 608(b). Part II points out that Rule 608(b) is the subject of several splits of authority. To begin with, may the proponent employ Rule 608(b) if the act in question has already been the subject of a conviction' In addition, during 608(b) cross-examination, to what extent—if any—may the cross-examiner use documentary evidence to pressure the witness to concede their performance of the untruthful act' Finally, despite the rule’s seemingly explicit ban on “extrinsic evidence” of the act, may the cross-examiner confront the witness if a judge or jury has made a finding rejecting the witness’s testimony on a prior occasion' As we shall soon see, there is some case law on each of these issues. However, compared to the volume of Rule 404(b) decisions, the bodies of relevant Rule 608(b) case law are small. To date, these issues have not been especially troublesome because, again, by a wide margin, prosecutors have usually opted to take the Rule 404(b) route rather than the Rule 608(b) track.In addition to identifying the splits of authority, Part II evaluates the conflicting views on these issues. I hope that by calling the attention of Advisory Committee on Evidence Rules (the “Committee”) to these issues and describing the competing policy considerations, this Essay will persuade the Committee to address these issues and help the Committee choose how to come down on these issues. The resolution of these 608(b) issues arguably requires an amendment to the rule. PubDate: Tue, 14 May 2024 10:01:14 PDT
Authors:Daniel J. Capra Abstract: A number of articles have been written in the last couple of years about the evidentiary challenges posed by “deepfakes”—inauthentic videos and audios generated by artificial intelligence (AI) in such a way as to appear to be genuine. You are probably aware of some of the widely distributed examples, such as: (1) Pope Francis wearing a Balenciaga jacket; (2) Jordan Peele’s video showing President Barack Obama speaking and saying things that President Obama never said; (3) Nancy Pelosi speaking while appearing to be intoxicated; and (4) Robert DeNiro’s de-aging in The Irishman.The evidentiary risk posed by deepfakes is that a court might find a deepfake video to be authentic under the mild standards of Rule 901 of the Federal Rules of Evidence, that a jury may then think that the video is authentic because of the difficulty of uncovering deepfakes, and that all this will lead to an inaccurate result at trial. The question for the Advisory Committee on Evidence Rules (the “Committee”) is whether Rule 901 in its current form is sufficient to guard against the risk of admitting deepfakes (with the understanding that no rule can guarantee perfection) or whether the rules should be amended to provide additional and more stringent authenticity standards to apply to deepfakes. PubDate: Tue, 14 May 2024 10:01:13 PDT
Authors:Jeffrey Bellin Abstract: Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.This short essay begins by setting out the proposed rule change alongside a proposed Advisory Committee [n]ote. The balance of the essay elaborates on the [n]ote’s discussion. The discussion highlights the proposal’s consistency with recent White House and [U.S.] Department of Justice [(DOJ)] policy initiatives and the unique opportunity that the elimination of Rule 609 presents to the Advisory Committee to improve the fairness and legitimacy of American trials. PubDate: Tue, 14 May 2024 10:01:12 PDT
Abstract: CHAIR SCHILTZ: As those of you who have been in the rules work for a while know, rules work is cyclical. During the time I’ve been Chair of the Advisory Committee on Evidence Rules, we’ve had two packages of amendments that have gone through. The first package will take effect on December 1, 2024, and that’s the package that is led by the amendment to Rule 702 on expert testimony. And then we have another package that was just approved by the Judicial Conference and sent to the U.S. Supreme Court, and that package is led by the new rule on illustrative aids and a number of other rules.So, we’ve basically cleared the deck, and we also have a number of new members or almost-new members. So, I thought it would be helpful to have more of a thinking meeting than an action meeting.I asked Dan Capra to invite to our meeting a handful of highly respected top evidence scholars to tell us one or two ways in which they would amend the Rules of Evidence if they were king or queen of the evidence world. And as always, Dan’s execution was great, and in a minute I’m going to turn it over to him to introduce our guests and to moderate the discussion. PubDate: Tue, 14 May 2024 10:01:11 PDT
Authors:Hillel J. Bavli Abstract: Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.I therefore propose that the Advisory Committee on Evidence Rules amend Rule 404(b)(2) to clarify the meaning of this rule as permitting only other‑acts evidence whose relevance does not rely on a character inference—that is, whose chain of inferences is free of propensity reasoning. I show how the Advisory Committee can restore Rule 404’s logic and effectiveness through a straightforward modification in the language of Rule 404(b)(2). I then address the doctrine of chances—which pertains to a uniquely probative form of character evidence offered to prove the absence of chance or accident—and I explain why it should not cause reluctance to adopt my primary proposal. Then, as a secondary proposal (not required for the adoption of my primary proposal), I recommend amending Rule 404(b)(2) to establish a limited exception to Rule 404 for this type of evidence. I argue that my proposals to amend Rule 404(b)(2) would restore Rule 404’s meaning and intention to exclude evidence whose relevance relies on character reasoning and, in turn, would create fairer and more accurate trials. PubDate: Tue, 14 May 2024 10:01:11 PDT
Authors:The Honorable Kent A. Jordan Abstract: Judge Jordan has had a distinguished career at the bar as well as on the bench. After receiving a B.A. from Brigham Young University in 1981, and a J.D. from the Georgetown University Law Center in 1984, he served as a law clerk to District Judge James L. Latchum on the U.S. District Court for the District of Delaware. Subsequently, he spent a number of years in private practice at a Wilmington law firm, focused on intellectual property, as well as corporate and commercial litigation. He also served as an Assistant U.S. Attorney for the District of Delaware, including as chief of the Civil Division in that office in 1991 and 1992.Judge Jordan was appointed and confirmed to serve as a judge for the U.S. District Court for the District of Delaware in 2002, a position in which he served until 2006. At that time, he was appointed and confirmed to the U.S. Court of Appeals for the Third Circuit. He has served on the Board of the Federal Judicial Center and has for many years been an adjunct professor at both Vanderbilt Law School and the University of Pennsylvania Carey Law School. Indeed, he taught at Penn last evening before coming up to New York to join us at Fordham for this very special day. We have taken full advantage of his presence: Judge Jordan has met with representatives of four student groups, co-taught a Corporations class, will co-teach an Evidence class this evening, and has met informally with a number of faculty members. And now, we are delighted to have him present his lecture on the timely and important topic of civil discourse. PubDate: Tue, 14 May 2024 10:01:10 PDT
Authors:John D. Feerick Abstract: On October 24, 1984, a few years after becoming the first woman Associate Justice of the U.S Supreme Court, Justice Sandra Day O’Connor arrived at Fordham University School of Law (“Fordham Law School”) to rededicate the school’s renovated and expanded building. Founded in 1905, and occupying a succession of sites in New York City, it is now located at 150 West 62nd Street in Manhattan. The school had undertaken for the first time a major capital campaign among its alumni to raise $7 million to make the rededication possible. Justice Earl Warren, then Chief Justice of the U.S. Supreme Court, was present at the school’s original ground-breaking in 1960, and Attorney General Robert F. Kennedy was the dedication speaker when the building was finished. The opening of the 140 West 62nd Street building for classes in September 1961 marked the beginning of Fordham University’s presence at Lincoln Center. Justice O’Connor’s participation in 1984 reflected a joint effort to secure that presence by Professor Constantine N. Katsoris and Fordham Law School graduate Robert J. Corcoran, then serving as a member of the Arizona Court of Appeals and later serving on the Arizona Supreme Court. To mark the occasion, Father Joseph A. O’Hare, S.J., the university’s president, created an exception, at my suggestion, in awarding her an honorary degree at an event other than the university’s commencement. The moment was an exciting one, and the law school’s assistant dean, Robert M. Hanlon, Jr., prepared a beautiful citation to accompany this honor. He sat in the dean’s conference room and wrote the words of the citation. For the next thirty years, the citation would hang for all to see in the law school’s first floor atrium until the school moved into its new building at 150 West 62nd Street. Fordham’s historic law dean, William Hughes Mulligan, who served as master of ceremonies in 1984, remarked to laughter that it was his planning in 1960 that made the occasion “inevitable.” PubDate: Tue, 14 May 2024 10:01:09 PDT
Authors:The Honorable Katharine H. Parker et al. Abstract: Every year since May 1, 1958, the United States has recognized Law Day. Codified in 1961, it is “a special day of celebration” for Americans to reaffirm “their loyalty to the United States” and rededicate themselves “to the ideals of equality and justice under law in their relations with each other and with other countries.” Its purpose is to “cultivat[e] . . . respect for law that is so vital to the democratic way of life.” It tasks the President with issuing an annual proclamation calling for “public officials to display the flag of the United States on all Government buildings on Law Day” and for “the people of the United States” to observe the day with “appropriate ceremonies,” through “public entities and private organizations and in schools and other suitable places.”This Essay discusses the history of Law Day and how its changing themes and proclamations showcase U.S. society’s evolving views about the rule of law and the United States’s system of government over the last sixty-five years. Additionally, although the American Bar Association (ABA) website provides access to many of the Law Day proclamations, there has not been one central, publicly available, comprehensive repository of all of the Law Day proclamations since 1958. This Essay includes an appendix with all of the presidential proclamations since Law Day’s inception. PubDate: Tue, 14 May 2024 10:01:08 PDT
Authors:Sriram H. Ramesh Abstract: The modern criminal justice system in the United States is a “system of pleas.” Plea bargains have largely supplanted trials as the primary method of resolving criminal proceedings in this country. Acknowledging their prevalence, the U.S. Supreme Court has held that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process. Thus, defendants may bring ineffective assistance of counsel (IAC) claims for alleged ineffectiveness during the plea-bargaining phase.In two companion cases, Missouri v. Frye and Lafler v. Cooper, the Court held that its two-pronged test for IAC, laid out in Strickland v. Washington, applies when attorney ineffectiveness prevents defendants from accepting favorable plea offers and results in unfavorable convictions at trial. In proving the second prong of Strickland—the prejudice prong—in such claims, the defendant must show a reasonable probability that, but for their defense counsel’s ineffectiveness, the defendant, prosecution, and court all would have accepted the plea deal.Frye and Lafler inevitably raised a related question: can defendants bring a successful IAC claim on the grounds that attorney ineffectiveness precluded the extension of a plea offer by the prosecution altogether' Circuit courts have answered this question in two ways. Some have imposed a threshold requirement that a plea offer precludes any such claims outright, while others have taken a more fact-dependent approach to the question and have allowed certain claims to proceed. This Note argues that the former approach is too strict and prevents defendants who have suffered prejudice from receiving relief, but it acknowledges the flaws raised by the latter approach. To mitigate those pitfalls, this Note proposes a burden-shifting framework that requires the prosecution to show that there is a “reasonable purpose” for its decision not to offer a plea. This proposal recognizes the centrality of plea bargaining in the modern criminal justice system while still operating within the confines of existing IAC jurisprudence as it pertains to plea bargaining. PubDate: Wed, 10 Apr 2024 10:09:35 PDT
Authors:Hunter Dominick Abstract: As the United States continues to grow and urbanize, local governments have tried to manage this growth to mitigate the external impacts that new developments can cause. One method by which state and local governments seek to control growth within their borders is by imposing conditions on the issuance of building permits—otherwise known as exactions. Exactions, however, face federal constitutional limits under the Takings Clause of the Fifth Amendment, which applies to state and local governments through the Fourteenth Amendment.In Nollan v. California Coastal Commission and Dolan v. City of Tigard, the U.S. Supreme Court restricted exactions in certain situations by requiring that, prior to imposing the exaction, the government make an individualized determination that the condition has an “essential nexus” and is “roughly proportionate” to the foreseen harm from the development. The Nollan/Dolan test is primarily grounded in a fear of government overreach and coercion of property owners. The courts agree that the Nollan/Dolan test applies when a government agency, such as a zoning board, imposes an exaction on a discretionary and ad hoc basis. The U.S. Supreme Court, however, has not yet determined whether exactions that are generally imposed on property owners through a legislative action, such as an ordinance, must comply with the Nollan/Dolan test. On the one hand, a legislatively imposed exaction is like a typical land use regulation, to which the Court has granted broad deference. But on the other hand, such exactions still carry the risk of government overreach by unfairly targeting a small, politically unpopular group: developers.This Note evaluates the debate over whether the Nollan/Dolann test should apply to legislatively imposed exactions and ultimately concludes that it should not. Legislatively imposed exactions are fundamentally different from administrative exactions because of their greater democratic legitimacy. Indeed, courts already recognize and are hardening this line between legislative and administrative actions, as evidenced by the nondelegation doctrine. Thus, the Nollan/Dolan test should not apply to legislatively imposed exactions. PubDate: Wed, 10 Apr 2024 10:09:34 PDT
Authors:Sean Phillips Abstract: In 2023, over the course of one week, two U.S. courts of appeals ruled on Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting firearm possession for those convicted of felonies. Both courts applied the U.S. Supreme Court’s “history and tradition” test from New York State Rifle & Pistol Ass’n v. Bruen. In the U.S. Court of Appeals for the Eighth Circuit, criminal defendant Edell Jackson did not succeed. There, the court found that the nation’s history and tradition supported the validity of a law banning firearm possession by felons, regardless of the details of their felony or propensity for violence. In the U.S. Court of Appeals for the Third Circuit, Bryan Range, who was convicted of welfare fraud in 1995, brought a civil suit seeking injunctive relief so that he could again lawfully possess firearms. The Third Circuit ruled for Range and held that the nation’s history and tradition did not support disarming someone like Range. The circuit thus held that Range’s entire disarmament under § 922(g)(1), including at the time of his 1995 conviction, was unconstitutional.This Note proposes that the U.S. Supreme Court resolve this split on § 922(g)(1) by ruling that history and tradition support § 922(g)(1)’s categorical disarmament of felons. In particular, this Note argues that the Eighth Circuit more accurately applied step two of Bruen, which asks whether a challenged firearm law is sufficiently analogous to, and thus supported by, firearm laws from earlier periods in American history. This is particularly noteworthy as both courts considered and decided their cases with the same historical examples of disarmament in mind. Next, this Note argues that § 922(g)(1)’s validity under Bruen supports closing off Second Amendment challenges to § 922(g)(1) in criminal proceedings, but that courts can permit such challenges to seek prospective, declaratory relief in civil proceedings. This Note concludes by arguing that structuring the relief in this way appropriately permits rearmament only for those who can demonstrate their law-abiding, responsible status. PubDate: Wed, 10 Apr 2024 10:09:34 PDT
Authors:Elizabeth D. Katz Abstract: Each year in the United States, approximately 700,000 children live in foster care. Many of these children are placed in religiously oriented homes recruited and overseen by faith-based agencies (FBAs). This arrangement—as well as the scope and operation of child welfare services more broadly—is at a crucial moment of reckoning. Scholars and advocates focused on children’s rights and family integrity maintain that the child welfare system, increasingly termed the “family policing system,” harms children, families, and communities through unnecessary and racist child removal that is partly motivated by perverse financial incentives. Some call for abolition. Meanwhile, in a largely separate conversation, discussants focused on clashes between religious liberty rights and antidiscrimination laws spar over the legality and appropriateness of FBA involvement in fostering children because FBAs may exclude or provide ill-fitting services to LGBTQ individuals and religious minorities.This Article excavates the persistent involvement of religious organizations in child placements in U.S. history to provide crucial missing context and valuable lessons for ongoing reform efforts. People and groups motivated by religion have participated in housing poor, orphaned, and otherwise dependent children since the colonial period, gradually securing laws to ensure public funding for their private organizations and to safeguard control over coreligionist youth. Though these services have benefitted many children in the absence of satisfactory public alternatives, they have also inflamed interfaith controversies and left children from minority religious and racial groups with unequal and inadequate care. Criminal law innovations, including the enactment of child abuse laws and the creation of juvenile courts, reinforced religious organizations’ involvement. As the preferred methods for child placement evolved, faith based providers campaigned in legislatures and the press to preserve their power and control, slowing reforms. This Article’s account supports calls for reform by emphasizing how the modern system developed through ad hoc and contingent changes that routinely prioritized cost concerns, crime reduction, and religious groups’ interests over children’s wellbeing. PubDate: Wed, 10 Apr 2024 10:09:33 PDT
Authors:Julia Clementi Abstract: After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to all. The Court’s efforts, in part, eventually yielded a rise in alternative education opportunities, including charter schools and, more recently, religious charter schools.This Note examines whether religious charter schools are private or state actors under the state action doctrine and, consequently, whether they are prohibited under the Religion Clauses. This Note argues that charter schools, generally, cannot be categorized as either private or public actors; rather, particular practices and characteristics of a charter school can be deemed state action such that the school must comply with the Religion Clauses’ demands. This Note analyzes these instances, focusing on the Court’s jurisprudence regarding religious curricula, teacher-led prayer, government funding, and religious symbols. Ultimately, this Note concludes that the most identifying feature of a religious charter school—its religious curriculum—cannot be considered state action and, thus, religious charter schools are permissible and beneficial additions to school choice. PubDate: Wed, 10 Apr 2024 10:09:33 PDT
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