Author name: JLPP

The Third Rails of Second Amendment Jurisprudence:Guidance on Deriving Historical Principles Post-Bruen Mark W. Smith*   This article proposes a method by which courts and litigants can resolve recurring questions presented in litigation over the right to keep and bear arms. Three Supreme Court cases, District of Columbia v. Heller (2008),[2] New York State Rifle & Pistol Association v. Bruen (2022),[3] and United States v. Rahimi (2024)[4] established a text-first, history-second methodology for deciding whether […]

Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte Seth Barrett Tillman* In an article appearing on The Hill,[1] Evan A. Davis and David M. Schulte put forward the position that president-elect Trump is barred by Section 3 of the Fourteenth Amendment from becoming President. Or, to put it more plainly, in spite of the Supreme Court’s decision in Trump v. Anderson,[2] Congress is free to ignore the Court’s

St. John Henry Newman’s Development of Doctrine and Law: Some Preliminary Notes and Questions Jeffrey A. Pojanowski* When one thinks about the relationship between Newman’s thought on the development of doctrine in the Church and the development of legal doctrine, it is hard to know where to begin. There are so many potential parallels and fruitful avenues of inquiry, but also worries about superficial resemblances or imperfect analogies between theological doctrine and legal doctrine. This

The Very Idea of Tradition in the Law Marc O. DeGirolami* It is a pleasure to be with you, on the occasion of this conference to honor the polymath and prince of the Church, St. John Henry Newman. It is customary in lectures of this sort to make grand pronouncements to other scholars in one’s field. But I have a different audience in mind. I want to talk to students, friends, colleagues in other areas,

The Presidential Immunity Decision Robert Delahunty & John Yoo * In Trump v. United States,[1] the Supreme Court issued one of the most resounding defenses of executive power in its history.  It held that former Presidents enjoy absolute immunity from federal prosecution for actions within their core constitutional powers.  Writing for a 6-3 majority, Chief Justice John Roberts claimed the decision had little to do with the charges against Donald Trump for the January 6,

Keeping the Faith: How Recent RLUIPA Decisions Are Reshaping Religious Freedom for Incarcerated Individuals By Nick Reaves* Introduction The freedom to practice one’s faith while incarcerated is on the upswing. One could even argue that the Supreme Court’s current interpretation of the legal standard set forth in the Religious Land Use and Institutionalized Persons Act (RLUIPA) is more protective of incarcerated individuals’ religious freedom than free exercise law has been at any other time in

Textualism, the Gun Control Act, and ATF’s Redefinition of “Firearm” Stephen P. Halbrook* The Supreme Court has granted the Attorney General’s petition for a writ of certiorari in a case concerning agency authority to adopt regulations that expand the definitions found in the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (“the GCA”).  In VanDerStok v. Garland, the Fifth Circuit decided that the regulations unlawfully expanded the reach of the GCA’s criminal

Problems with Rulemaking by District Court Enforcement Action: the SEC’s Improper Cryptocurrency Regulation Eric Wessan and Phil Pillari* Introduction Cryptocurrencies have become a vibrant part of the global economy. Unsurprisingly, the United States is the global leader in developing and advancing cryptocurrency and blockchain technology. But as with any new technology, the rise and prominence of cryptocurrencies create both opportunities and challenges. Some of those challenges are regulatory in nature. As States, the federal government,

Jarkesy And Gravitational Pull: The Supreme Court’s Approach To Precedent And Its Implications Michael Showalter* Introduction In a June 2024 concurring opinion, U.S. Supreme Court Justice Brett Kavanaugh argued that text and history should exert a “gravitational pull” on the interpretation of precedent.  The majority opinion he joined in SEC v. Jarkesy, decided a week later, provides an illustration. Jarkesy was a battle of text and history versus mixed precedent. The question presented was whether

Proxies, Quorum, and Legislative Immunity  Kimo Gandall* On March 13, 2020, President Trump declared a nationwide emergency in response to the COVID-19 pandemic.[1] Two days later, on March 15th, public shutdowns began, and the government began to institute mandatory quarantines.[2] Two months later, the House of Representatives approved House Resolution 965, which authorized a process under which House Members could both cast votes and establish presence via proxy, allowing the House to meet quorum even