The mugshot taken of Donald Trump in connection with his Georgia criminal prosecution has become one of the defining political images of the time. In this Essay, Cathay Y. N. Smith discusses who owns the copyright to this iconic photo.
In recent months, California and Washington have enacted statutes forbidding private corporations in their states from cooperating with other states’ efforts to enforce abortion bans. In this Essay, Haley Amster argues that such “blocking laws” do not violate the Full Faith and Credit Clause, and are constitutionally permissible.
The statute governing obstruction of an official proceeding—one of the charges brought against January 6 defendants and then-President Trump—faces a moment of reckoning. This Essay by Stanford J.D. candidate Jennifer L. Portis identifies a novel interpretation: § 1512(c)(2) reaches only direct obstruction, not those individuals who obstruct the official proceeding through another person's conduct.
In this Essay, Aliya Sternstein of Georgetown University Law Center argues that an international body must set a standard, five-year window, after an emergency vaccine is administered and when the recipient can seek compensation for an injury. Sternstein further argues that emergency vaccine developers should receive immunity against liabilities except for willful misconduct.
In this Essay, Prof. John J. Martin of the University of Virginia School of Law argues for a Congressional Incapacity Amendment to the Constitution, modeled on the Twenty-Fifth Amendment's provisions for Presidential incapacity.
In this Essay, Prof. Jacob D. Charles of Pepperdine University Caruso School of Law considers the use of history and tradition in firearm regulation following the Supreme Court's Bruen decision. He argues that courts should use an "Abstraction Approach" in considering historical analogues to modern regulations.
In this Essay, Judge Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit considers appellate courts' use of information from outside the factual record, i.e. "non-adjudicative facts," when making decisions. Although this practice is commonplace and often harmless, the Essay notes the greater potential for incorrect conclusions when relying on facts outside the record. It urges judges to use non-adjudicative facts with caution, and carefully verify them to avoid serious error.
Class actions are plagued by poor communication between class counsel and the masses of unnamed class members. In this Essay, Professors Alissa del Riego and Joseph Avery propose that these barriers be overcome by using the new technical capabilities of artificial intelligence, and by adding an express duty to communicate to the Federal Rules of Civil Procedure.
Now that the Supreme Court has overturned Roe v. Wade and Planned Parenthood v. Casey, the movement for abortion rights and access finds itself in uncharted territory, and the stakes could not be higher. For abortion rights defenders, this new, post-Roe playing field means adapting their strategy and mindset to confront a new environment without a tether to federal constitutional protection. This Essay, published in the immediate aftermath of Dobbs, offers some initial thoughts about what the changed legal landscape means for abortion rights legal advocacy. It offers several suggestions, all of which require a paradigm shift in movement strategy to one that is in some ways modeled after the now-successful movement to overturn Roe.
This Essay offers a look back on the initial phase of the COVID-19 catastrophe—a crisis that, at the time of this writing, is still expanding and deepening. We suggest three lessons: First, the free flow of information saves lives, an observation which sounds in constitutional free-speech rights, copyright law, and patent law. Second, politically accountable decision-making in the public health sphere has proven inapt in responding to the pandemic; this observation suggests a more prominent role in public health crises for independent administrative agencies and the judiciary. Third, pre-crisis regulations and rulemaking structures for approvals of medical products, and vaccines in particular, have not proven nimble enough in the face of the pandemic; this suggests an opportunity for congressional action to push agencies to move faster.
This Essay defends the recent scrutiny of civic symbols, triggered by police brutality and killings, against the Trump Administration’s criticism that it constituted a frivolous exercise in cancel culture. It examines links between recent destruction of monuments and the age-old Roman legal procedure of damnatio memoriae to show that condemnation of memory may serve legitimate purposes, especially in rehabilitating public spaces to express society’s disapproval of past offensive actions.
This Essay draws from recent events to show how the Fifth Circuit’s “foreseeable violence” standard uniquely harms Black and racial justice protesters. By contextualizing the Fifth Circuit’s opinion in Mckesson as part of a wider project spanning state and local legislatures aimed at stifling Black protest, the Author explains how even tort liability standards for protest can be, and will be, weaponized against those whose First Amendment rights are the most vulnerable.
The COVID-19 pandemic of 2020—as well as government orders to contain it—has prevented countless people, babysitters to basketball players, from fulfilling their contracts. Are all of these parties legally liable for breaching their contracts? Or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled, or a dorm room leased at a college that is now closed?
American Indian people know all too well the impact of pandemics on human populations, having barely survived smallpox outbreaks and other diseases transmitted during the generations of early contact between themselves and Europeans. Modern tribal governments navigate a tricky legal and political environment. While tribal governments have power to govern their own citizens, nonmembers are everywhere in Indian country, and the courts are skeptical of tribal authority over nonmembers. This short Essay argues for tribal regulatory powers over nonmembers in Indian country during a pandemic. This should be an easy argument, but federal Indian law makes it more complicated than it should be.
On May 7, 2020, the Department of Justice asked District Judge Emmet G. Sullivan to dismiss the felony charge against President Trump's former National Security Advisor, Michael T. Flynn. The Government has urged that Judge Sullivan grant the motion based on an argument that judicial meddling is improper where Rule 48(a) dismissal accrues to the benefit of the defendant. This Essay argues that the Government's position—and the Supreme Court language upon which it is based—is simply wrong in light of Rule 48(a)’s forgotten history. Rather, Rule 48(a) was drafted precisely to empower a district judge to halt a dismissal where the court suspects some impropriety has motivated the dismissal.
Bluebook Rule 18.6 is wrong because it cites production companies instead of film directors, counter to The Bluebook’s commitment to treating individuals rather than corporations as responsible for their work. Examining the issue through the lenses of Bluebook history, comparative citation guidelines, and film theory, this Essay suggests that film citations should recognize both individual directors and the collaborative character of filmmaking.
In recent years, anti-vaccine activists have misused public participation opportunities, especially the oral comment process in front of the Advisory Committee on Immunization Practices at the Centers for Disease Control and Prevention (CDC). These comments do not advance any legitimate interest—they do not improve decision-making, do not increase legitimacy of the policy-making process, and can even make committee members feel threatened. In these circumstances, oral commenting is more harmful than beneficial—and since the CDC has the discretion to limit oral comments, it should.
In Flowers v. Mississippi, the Supreme Court vacated the capital conviction of Curtis Flowers; prosecutor Doug Evans was “motivated in substantial part by discriminatory intent” when he used a peremptory strike to exclude a black potential juror, the Court held, violating a prohibition against such conduct first announced in Batson v. Kentucky. Justice Thomas penned a lengthy dissent that has been met with disdain in the popular press. But Justice Thomas’s dissent also gets right many things about the Batson doctrine and race in the courtroom that the Court’s liberal wing has proven loath to confront.
Antitrust law has long struggled to account for the role of innovation in economic production. Dynamic factors like capital stock, investment spending, and productivity growth do not lend themselves to neat doctrinal rules or clear regulatory mandates. And the antitrust literature has long treated “innovation” as either the domain of intellectual property law or a black-box variable, rather than the product of specific intracompany organizational and investment decisions.
