Per Curiam
Jarkesy and Gravitational Pull: The Supreme Court’s Approach To Precedent And Its Implications – Michael Showalter
Download PDF 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 the SEC could assess civil...
read moreProxies, Quorum, and Legislative Immunity – Kimo Gandall
Download PDF 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 though most members of...
read moreWater and Federalism in Texas v. New Mexico – Frances Williamson
Download PDF 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 a dry climate. Unsurprisingly, scarcity and...
read moreIf You’re Worried About Lina Khan, Then Support Specific Authority Bills – Joel Thayer
Download PDF 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. OAMA would set guardrails on app store providers,...
read moreMuch Ado About Nothing: Rahimi Reinforces Bruen and Heller – Mark W. Smith
Download PDF 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 town among advocates and opponents of the...
read moreWhat We Did and Did Not Argue in United States v. Trump – Seth Barrett Tillman & Josh Blackman
Download PDF 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 address that decision in future writings. On June 21, 2024, Judge Aileen Cannon of the...
read moreThe Judicial Appointment Process – Michael A. Fragoso
Download PDF 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...
read moreFederal Judicial Selection After the 2024 Election – Robert Luther III
Download PDF 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 federal judiciary, a relentless assault on the courts has...
read moreUndue Process: Revisited – Anthony Sirven
Download PDF 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 courts to enforce, these kinds of agreements...
read moreHayekian Choice of Law Favors a National Solution – Ted Steinmeyer
Download PDF 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 Carroll’s injury, though caused in Alabama, occurred only...
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