The United States Supreme Court is expected to issue its highly anticipated decision in United States v. Rahimi by the end of its current term. The case, which considers whether the federal law barring individuals subject to protection orders from possessing firearms violates the Second Amendment, provides the Court an early opportunity to clarify its June 2022 decision in New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court articulated a new test for determining the constitutionality of modern-day gun regulations which requires an examination of the nation’s historical tradition of firearms laws. The Bruen test, described in more detail below, has created chaos in the lower courts, with opposing outcomes on a wide variety of gun regulations. Despite this disarray, it was somewhat unusual for the Court to grant certiorari on another Second Amendment case so quickly after Bruen. The Court’s hands are somewhat tied; it cannot, realistically, overrule Bruen after only two years in effect (nor is the government requesting that outcome). On the other hand, the Court also cannot allow Bruen to continue to produce the varied results it has. Rather, the Court can – and must – use Rahimi as a vehicle for providing additional guidance to the lower courts. It must not only reverse the Fifth Circuit’s decision, but do so in a way that offers a roadmap to lower courts to achieve consistency and commonsense results on the constitutionality of gun regulations moving forward.

Are administrative agencies illegitimate? A threat to democracy? A threat to liberty? To human welfare? To defining constitutional commitments? Many people think so. But an understanding of the actual operation of the administrative state, seen from the inside, makes it difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large objections from the standpoint of democracy, liberty, and welfare; indeed, it makes those objections seem coarse and largely uninformed. What is needed is more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.

Climate change threatens nearly every corner of human life and may structurally change the global financial system. Investors increasingly demand information about how climate change may impact their investments. In response, the U.S. Securities and Exchange Commission issued a proposed rule that would require registered companies to disclose certain climate-related information in their registration statements and annual reports. But some critics argue that this proposed rule is unconstitutional under the Supreme Court’s current doctrine on compelled and commercial speech.

This essay explores the ways in which the right to contract interacted with the free labor ideology at this pivotal moment in American legal history. It examines this relationship by looking at the perspectives of four groups of historical actors: grassroots actors such as anti-slavery activists and ordinary laborers, legislatures of the former Confederate states, agents of the Freedmen’s Bureau, and federal lawmakers in the 39th Congress. This essay argues that, although Congress legislated some of the key grassroots demands on a system of free labor and the right to contract through constitutional amendments and federal statutes, enforcement by the Freedmen’s Bureau deviated from the original legislative intent. For a few years after the ratification of the Thirteenth Amendment and the passage of the Civil Rights Act of 1866, the Freedmen’s Bureau—a federal agency established to assist freed people in the former Confederate states—fell short of protecting freed people from the numerous attempts by Southern legislatures to re-enslave them. This essay concludes by discussing potential insights this short episode in history could provide to historians, as well as to private law and public law scholars.

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (“SFFA”), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support of this argument, SFFA invokes the Supreme Court’s landmark decision in Brown v. Board of Education of Topeka to support its colorblind approach. This essay argues that SFFA’s reliance on Brown ignores the role of courts enforcing desegregation in the face of white resistance through the use of racial classifications. Brown and its progeny thus made clear that racial classifications are a necessary remedy for addressing racial discrimination in K-12 public education. Moreover, while SFFA and other conservative plaintiff organizations claim to be opposed to the use of racial classifications—and not the broader goal of pursuing racial diversity and equity in education—these same organizations are simultaneously opposing attempts to pursue diversity and equity through race-neutral means in K-12 education, demonstrating a broader agenda of maintaining the existing racial hierarchy and segregation in schools, while relying on the formal legal principle of colorblindness.

Prof. Harpalani examines the First Amendment component to race-conscious admissions policies. He argues that these policies reflect a core First Amendment value: academic freedom. By facilitating the admission of a more diverse student body, race-conscious admissions policies contribute to the “marketplace of ideas” on campus—thus embodying the values inhering from freedom of speech.

Mikaela Meyer analyzes the recent case Commonwealth v. Brown, where the Philadelphia District Attorney attempted to alter a defendant's imposed sentence ex post, and argued that this was within the realm of prosecutorial discretion. This article considers the original intent behind prosecutorial discretion, the trend in expanding this power, and what arguments could be made to allow prosecutors the ability to alter imposed sentences.

This article argues that courts or legislatures should prohibit the execution of people with severe mental illness who were significantly impaired by their illness at the time of their crime in light of recent Supreme Court death penalty interpretation of Atkins.