This Comment will consider whether the growing scholarship on the culpability of young adults should influence how courts and society blame and punish persons that commit crimes while between the ages of eighteen and twenty-four. It also explores the evidence that indicates that young adults are more similarly situated to juveniles than adults with regard to their moral blameworthiness and how, if it all, this will impact criminal punishment for young adults.
This Comment argues that the Federal Tort Claims Act permits suit against the United States based on state law theories of tort that would otherwise be phrased in a Bivens action. By shifting their focus, plaintiffs can still receive compensation for discriminatory and injurious acts by federal tortfeasors without running afoul of the corpse of the Bivens doctrine.
Prof. Moore’s article reviews Supreme Court precedent on the retaliatory arrest issue, the circuit split that developed over the same time, and Supreme Court precedent on pleading standards to argue that the existence of probable cause should not bar a plaintiff’s claims.
Like much of constitutional law, the Supreme Court’s void-for-vagueness doctrine employs a system of tiered scrutiny. This decades-old framework imposes differential demands of clarity, depending on the type of enactment under review. Prof. Rice’s article lays bare the resulting methodological rot and charts a path toward doctrinal reconstruction.
Prof. Malbin’s article takes a different look at the debates concerning campaign finance reform and posits a “neo-Madisonian” take, urging reformers to take institutions seriously, while urging institutionalists to reach out to those left aside.
Prof. Fiss’ article explores the development of the law of narrow tailoring, analyzes its current state, and takes a look toward the future of the principle.
Prof. Seidman, in his essay, attempts to defend the Rucho v. Common Cause decision. While acknowledging that this is not easy, he hopes that the reader will at least allow him some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil, and there is no defending Chief Justice Roberts’ dreadful opinion justifying the Court’s refusal to do anything about it. Still, Prof. Seidman argues, on balance, we are better off without the Supreme Court mucking around with this problem. Moreover, the reasons why we are better off go beyond this particular issue and impeach some of the standard arguments for judicial intervention more generally.
Prof. Simard argues in her article that when political questions arise, courts should treat, in most cases, them like every other dispute by relying upon traditional tools of adjudication to resolve the questions presented. When ordinary constitutional interpretation suggests there is no constitutional violation that is remediable by the courts, there is no need to invoke the political question doctrine because courts may rely upon traditional procedural safeguards that test the adequacy of a complaint—lack of standing or failure to state claim.
This Article challenges the premise Congress must take such a passive approach to judicial review, expressing policy preferences in seriatim fashion (and being “sent back to the drawing board” each time a policy fails). This approach merely reflects institutional habits. And by failing to question these habits, reformers forfeit an enormous amount of legislative power.
When President Trump was elected president, he held various domestic and international business interests and upon taking office was sued and it was claimed he was in violation of the foreign and domestic emoluments clauses. The Office of Legal Counsel (OLC) was not consulted on the question of whether President Trump could continue to receive payments through his businesses as president. This article proposes that had the OLC been asked it would have concluded that the president was in violation of both clauses to the extent that any profits and payments received were sourced from government entities, whether foreign or domestic.
Prof. Araiza’s article takes a look at the tension between political branches trying to enact significant civil rights legislation and a skeptical Court wielding now-longstanding precedent limiting the enforcement power. This prospect raises important questions about the relationship between the Court and the political branches in the project of safeguarding individual rights.
Tyler Smoot argues that many carceral debt practices today are subject to heightened scrutiny under the Equal Protection and Due Process clauses. Traditionally, laws trigger heightened equal protection scrutiny when they either inhibit a fundamental right or make a suspect classification. This article offers a roadmap for relying on Bearden’s four-factor test to challenge laws that discriminate against the poor.