Author name: JLPP

Water and Federalism in Texas v. New Mexico Frances Williamson* Drought plagues the western United States.[1] California, Colorado, Arizona, New Mexico, and Texas, among others, rely heavily on the dwindling flow of two major rivers: the Colorado River and the Rio Grande River. These rivers provide millions with drinking water and support hundreds of thousands of acres of agriculture. As the water disappears, states, tribes, and communities are left wondering what the future holds in […]

If You’re Worried About Lina Khan, Then Support Specific Authority Bills Joel Thayer* The adverse impact large tech firms have on children’s mental health and free markets are undeniable.[1] In that vein, Congress has proffered several proposals to address those issues, such as the Kids Online Safety Act (KOSA)[2] and the Open Apps Market Act (OAMA)[3]. KOSA imposes a duty of care on social media companies to protect children from those platforms’ addictive, behavioral functions.

Much Ado About Nothing: Rahimi  Reinforces Bruen  and Heller Mark W. Smith* On June 21, 2024, the Supreme Court issued its much-anticipated decision in United States v. Rahimi.[1] In that case, the Fifth Circuit had declared that a federal criminal statute, 18 U.S.C. § 922(g)(8), which prohibits persons subject to domestic violence restraining orders from possessing firearms, violated the Second Amendment. From the day that the Supreme Court granted certiorari, Rahimi was the talk of the

What We Did and Did Not Argue in United States v. Trump Seth Barrett Tillman* Josh Blackman** Editor’s Note: This essay had already been submitted to the Harvard Journal of Law & Public Policy before United States v. Trump was decided by the United States District Court for the Southern District of Florida on July 15, 2024. The authors have decided to publish this essay without regard to the District Court’s decision, and they will

The Judicial Appointment Process By Michael A. Fragoso* “What do you call a judicial nominee who only got 51 votes?” “Your Honor.” The judicial appointment process ranks among the most contentious and consequential functions of the federal government. Given the federal courts’ exclusive constitutional role in resolving cases and controversies—including those involving controversial constitutional questions—judicial appointments command considerable attention from the White House, the Senate, and the media. This essay presents a comprehensive summary of

Federal Judicial Selection After the 2024 Election ROBERT LUTHER III* As Associate Counsel to the President of the United States during the Trump administration, I had the unique opportunity to be at the forefront of the judicial selection process. Based on that experience, I would like to share some thoughts on what I call “judicial fortitude.” This is an important and under-covered quality that is necessary in effective judges. Since President Trump’s impact on the

Undue Process: Revisited Anthony Jose Sirven* Introduction Nearly a decade ago, I wrote my law-school note on how there was a tension brewing between IVF and abortion rights.[1] The observation largely being that, because courts had begun enforcing contracts entered among IVF progenitors, providers, and surrogates, they were implicitly (and, at times, explicitly) treating human embryos as a kind of thing that could be owned. After all, one could not lawfully enter, let alone ask

Hayekian Choice of Law Favors a National Solution Ted Steinmeyer* W.D. Carroll, a brakeman working for the Alabama Great Southern Railroad Company, had reason to believe he would win damages from his employer.[1] After all, he had been injured on the job after his coworkers failed to discover a defective link between two freight train cars, and Alabama—his home state, the railroad’s home state, and the state where his coworkers’ negligence occurred—allowed for damages. But

PRACTICAL APPLICATIONS OF THE MAJOR QUESTIONS DOCTRINE Luke A. Wake and Damien Schiff* Introduction According to the major questions doctrine, Congress must speak clearly if it wishes to delegate to an administrative agency the power to decide an issue of great economic or political significance. This represents a marked shift away from the deferential approach the federal courts had generally taken when interpreting statutes in the post-New Deal era. But as others have noted, it

Placing Legal Context in Context Chad Squitieri* In Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power.  Some scholars have critiqued Justice Barrett’s concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires.  This Essay argues that those critiques