Per Curiam

Baloney, Fortuity, and Character – Paul Clement

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Baloney, Fortuity, and Character – Paul Clement

Download PDF Baloney, Fortuity, and Character Paul Clement* In May 2017, I had the opportunity to interview Judge Silberman for an oral history project being assembled by NYU’s Institute of Judicial Administration.  I felt like I had won the lottery.  The chance to sit down with Judge Silberman for the better part of a day and ask him questions—talk about role reversal—was too good to pass up.  The resulting oral history runs over three hours and spans a remarkable career on and off the bench.  It deserves to be savored in full.  But in...

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Common Ground with an Uncommonly Good Man: A Tribute to Judge Laurence H. Silberman – Rachel Barkow

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Common Ground with an Uncommonly Good Man: A Tribute to Judge Laurence H. Silberman – Rachel Barkow

Download PDF Common Ground with an Uncommonly Good Man: A Tribute to Judge Laurence H. Silberman Rachel Barkow* The passing of an influential, high-ranking government figure typically brings assessments of their public life and service. But people are so much more than their public acts. When I reflect on the life of Judge Laurence H. Silberman, for whom I clerked more than 25 years ago, what stands out to me is the warmth, mentorship, and friendship he showed me, and so many others, outside the public spotlight. That may seem––and probably...

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Remembering the Life and Legacy of Laurence H. Silberman – Justice Amy Coney Barrett

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Remembering the Life and Legacy of Laurence H. Silberman – Justice Amy Coney Barrett

Download PDF Remembering the Life and Legacy of Laurence H. Silberman Justice Amy Coney Barrett* Exactly 25 years ago this year, I walked into Judge Silberman’s chambers to begin my clerkship. Like all of his law clerks, I stood in awe of his accomplishments. The accolades offered since his unexpected death have highlighted many of those: Judge Silberman was a high-ranking official in the Department of Justice, a high-ranking official in the Department of Labor, ambassador to Yugoslavia, co-chair of the Robb-Silberman Commission, and a...

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The First Step Act and the Pardon Power – Dave Yost & Benjamin M. Flowers

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The First Step Act and the Pardon Power – Dave Yost & Benjamin M. Flowers

Download PDF The First Step Act and the Pardon Power Dave Yost & Benjamin M. Flowers* Mercy is a virtue.  It implies a lack of worthiness on the part of the person to whom mercy is shown—to release an innocent prisoner is not mercy, but justice.  Mercy is an act that overlooks a wrong and acts humanely, with compassion and with a view toward restoration. But mercy is not the only virtue.  And it can work at cross-purposes with others, especially in government.  Consider prudence.  Exhibiting mercy to a criminal defendant generally means...

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What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again – Mark W. Smith

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What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again – Mark W. Smith

Download PDF What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again Mark W. Smith[*] Introduction In the year since New York State Rifle & Pistol Association v. Bruen[2] was decided, a line of argument has developed in the lower courts that effectively seeks to relitigate and nullify District of Columbia v. Heller.[3] Heller established the constitutional test to determine what arms are protected by the Second Amendment. After examining the text of the Second Amendment, as illuminated by...

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Review: Keeping Our Republic – Benjamin Pontz

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Review: Keeping Our Republic – Benjamin Pontz

Download PDF Review: Keeping Our Republic Benjamin Pontz* Bernhardt, David. You Report to Me: Accountability for the Failing Administrative State. New York: Encounter Books, 2023. Thapar, Amul. The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him. New York: Regnery Publishing, 2023. Wallach, Philip. Why Congress. New York: Oxford University Press, 2023.   ***   Americans love Benjamin Franklin. An electricity-experimenting daredevil, an independent thinker whose penchant for pithy one-liners shines...

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Groff v. DeJoy: Hardison is dead, long live Hardison! – Nick Reaves

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Groff v. DeJoy: Hardison is dead, long live Hardison! – Nick Reaves

Download PDF Groff v. DeJoy: Hardison is dead, long live Hardison! Nick Reaves* For decades, lower courts and litigators labored under the (mis)impression that the Supreme Court meant what it said in TWA v. Hardison: that an employer can deny a religious accommodation if it imposes anything more than a “de minimis” (or minimal) cost on the employer’s business.[1] So understood, Hardison cost countless religious minorities their jobs and allowed this country’s largest employers to deny religious accommodations by pointing to the all but...

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To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate – Judge Kathryn Kimball Mizelle

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To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate – Judge Kathryn Kimball Mizelle

Download PDF To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate Hon. Kathryn Kimball Mizelle* Introduction Section 706(2) of the Administrative Procedure Act provides that federal courts reviewing agency action “shall” “hold unlawful and set aside agency action . . . found to be . . . not in accordance with law.”[1] For decades, federal courts have understood this provision to authorize vacatur of unlawful agency rules or regulation.[2] In my own Court, the meaning of “set aside” became relevant in Health...

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The Relevance of “In Common Use” After Bruen – Jamie G. McWilliam

Posted by on 9:00 am in Per Curiam, Uncategorized | 0 comments

Download PDF The Relevance of “In Common Use” After Bruen Jamie G. McWilliam* Introduction The Supreme Court in Bruen clarified many of the issues plaguing post-Heller Second Amendment doctrine, most notably that the two-step interest balancing test previously accepted by the circuit courts that combined history and means-end scrutiny was contrary to the analysis performed in Heller.[1] Instead, the Court laid forth a different two-step analysis grounded in text and history: “When the Second Amendment’s plain text covers an...

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Beyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism – Elias Neibart

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Beyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism – Elias Neibart

Download PDF Beyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism Elias Neibart* Although he died in 1704, John Locke lives on in judicial opinions. His name and the ideas he purportedly propagated are peppered throughout reporters. Indeed, Locke and his political thought played a major role in the Indiana Supreme Court’s recent decision in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc.[1] There, the state’s highest...

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