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Reproduced from Man's Right to Knowledge (2nd Series), New York: Herbert Muschel, 1954, by permission of the Trustees of Columbia University in the City of New York.

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free Exercise Clause of the First Amendment.1 But Tandon also introduces an element of uncertainty. Will lower courts treat it as they would a merits decision, or will they apply it with caution, given its status as a shadow docket case?After reviewing the existing literature on the shadow docket and explaining the potential significance of Tandon, this Article examines the initial decisions that have grappled with the case. Noting that some judges have treated Tandon as a major shift in free-exercise law, while others have minimized or essentially ignored it, I suggest that in several respects Tandon is similar to Bush v. Gore, another per curiam opinion that some courts have been reluctant to apply as precedent. The experience of Tandon suggests that pronouncements in the Supreme Court’s shadow docket opinions do not produce the same level of consistency and legal certainty as those in merits opinions, providing further evidence for those arguing that the Court’s current shadow docket practices warrant reform.

1, During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts. This myth has four levels. The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, Justice Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises. The third level was layered in 1973. In Roe v. Wade, Justice Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions. The fourth layer is of recent vintage. In South Bay United Pentecostal Church v. Newsom, Chief Justice Roberts’s “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges. This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine and d

What prevents the President from abusing the military power at his disposal to stage a coup and actively impose presidential rule upon the United States? What if generations of presidential assertions of authority, congressional acquiescence, and judicial abdication have not only laid the groundwork for the President to use military power to impose his will, but in fact have legally sanctioned such a presidential coup? And what if the informal checks and balances that historically protected against such abuse—specifically a benevolent President, a constitutionally faithful military, intra-executive branch checks, and public opinion—have also eroded to no longer function as checks?This Article explores these questions by arguing that the decay of formal and informal checks, buttressed by historical incrementalism, has created an environment ripe for a malevolent President to use the military power at his disposal to effectuate a presidential coup. Legal scholarship seldomly takes seriously the threat of a presidential coup. Such reluctance to engage seriously with a presidential coup has been understandable, as little historical evidence suggested a President was likely to turn the military power at his disposal against the American people. Nonetheless, the increasing use of the military by the Trump Administration to circumvent the constitutional design, followed by the use of the military to quell Black Lives Matter protests in Washington, D.C., and then culminating in the President’s reluctance and failure to use the military power at his disposal to defend the U.S. Capitol during the January 2021 insurrection suggest that such a threat of a presidential coup is ever-growing and becoming increasingly realistic. Legal scholarship needs to engage with the potential of a presidential coup with seriousness, examining its risk, the means to protect against it, and whether those means are functioning. This Article presents a novel framework that does just that

Jurors exercise unique legal power when they are asked to decide whether to sentence someone to death. The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are best able to “express the conscience of the community on the ultimate question of life or death.” Manylower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential.Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury. Aided by a novel dataset of federal capital jury verdict forms, this Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder.The data show that jurors consistently find all three forms of evidence highly relevant to their mitigation deliberations. Further, two of these—execution impact evidence and co-participant sentences—have a statistically significant correlation with the jurors’ sentencing decision. This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral—rather than legalistic—question, appropriately recognizing the jury’s normative role.

Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimedat addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergencydiverge, if at all, from temporary takeovers in more ordinary times?The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a local government imposes a temporary moratorium on land development until a certain condition is met. This Article focuses, however, on less investigatedscenarios of temporary physical takeovers or other forms of governmentinvasions. It seeks to identify the differences between a temporary invasion and a permanent occupation of property considered a per se taking under the Loretto rule. In so doing, this Article argues that whilethe alleged distinction between prevention of public harm and promotionof public benefit often proves untenable in evaluating whether a permanent government measure constitutes a taking, it might make moresense in exploring temporary acts.Temporary eminent domain—referring here to various types of actsamounting to time-limited physical takings, even if not initially recognized as such by the government—may diverge from permanenteminent domain in yet another key element: identifying the basis for justcompensation. Under long established (although often criticized) rules, compensation for a permanent taking is based on identifying the “fair market value” of the rights taken, while ignoring the effects that the public use for which the underlying asset is taken might have on the property’s long-term value.The allegedly parallel metric used in the case of temporary takings,one of “f

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0, Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The COVID-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential; they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts—the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public—we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

0, Police body-worn cameras have proliferated since the deaths of Michael Brown and Eric Garner, and the recent George Floyd-related protests seem set to continue or even accelerate that trend. Indeed, in her recent Nieves v. Bartlett dissent, Justice Sotomayor took time to note that many departments equip their police officers with body cameras. Body camera advocates have touted the cameras’ benefits, such as decreasing misconduct, reducing complaints, and improving accountability. At the same time, serious concerns have been raised regarding the impact of these cameras on privacy, public resources, and fairness. Despite the increased interest in body cameras, important empirical questions regarding resources and benefits remain insufficiently answered. This Article seeks to help fill that gap by analyzing a large, recently released dataset. The Article’s primary finding is that a more fulsome commitment to the body camera program—or what this Article refers to as “going big”—is associated with more favorable perceptions of the resources required for, and benefits of, body cameras.

This Article examines whether sexual orientation discrimination claims are a form of sex-plus discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of “sex.” Until very recently, every United States Court of Appeals to have interpreted Title VII’s prohibition of sex discrimination had determined that it does not encompass claims on the basis of sexual orientation. Times, and judicial interpretations, are changing. In April 2017, the United States Court of Appeals for the Seventh Circuit overturned decades of precedent by holding that sexual orientation discrimination claims are indeed encompassed within Title VII’s prohibition of sex discrimination, a ruling adopted only months later by the Second Circuit Court of Appeals. Although there is little mention of sex-plus discrimination in these watershed cases, this Article shows how aspects of the sex-plus doctrine are interwoven throughout the majority and concurring opinions in those cases, and argues that sex-plus theory is a valid basis upon which to recognize sexual orientation discrimination claims under Title VII.

Few issues are as divisive as guns in American society. In 2017, gun deaths in the United States reached their highest level in nearly forty years. The status quo is untenable as many gun rights groups feel that gun regulations are just a first step in a slippery slope of undermining the Second Amendment’s right to bear arms for self-defense. Conversely, many gun violence prevention activists insist that reasonable regulations concerning public safety can co-exist with the right to bear arms. This quagmire will never abate because on many levels both sides are right. For over 200 years, the courts interpreted the Second Amendment as protecting a right to bear arms for the state militias, called a “collective” right, and not an individual right to bear arms. In 2008, however, the Supreme Court in a 5-4 ruling held for the first time that, based on the Founding Fathers’ intent—an approach called originalism—the Second Amendment protects the individual right to self-defense in one’s home. This was the right decision, but for the wrong reasons. The Second Amendment’s language is ambiguous at best, and at worst, favors the militia interpretation that had prevailed for over 200 years. Moreover, the Founding Fathers’ intent is as irrelevant as it is indeterminable. An interpretation of the Constitution as a living document that evolves with the values of this country leads to one unmistakable conclusion: individuals should be allowed to use guns for self-defense while the government should be allowed to enact reasonable public safety regulations.Since the founding of this country, the use of firearms for self-defense has played an integral part in American culture. Yet, so have reasonable gun regulations. This Article will explore three time periods in America’s history where either the states, or the federal government enacted reasonable gun regulations to address serious problems plaguing the nation because of guns: violence in the Wild West, gangsters in the 1

In 2018’s Saint Bernard Parish Government v. United States, Federal Appeals Judge Timothy Dyk reversed a lower court decision finding that the federal government had violated the Fifth Amendment’s Takings Clause rights cherished by home-owning New Orleanians. The lower court maintained that such taking occurred via the Army Corps of Engineers’ building, maintaining, and failing to maintain the seventy-six mile long navigational channel known as the Mississippi River-Gulf Outlet (MRGO), which increased the surge storms of Hurricane Katrina. Though MRGO helped turn Katrina into a superstorm that devastated thousands of properties, Judge Dyk determined that the lower court’s takings analysis proved fatally flawed because it pivoted on government omission and failed to consider the totality of circumstances.In line with my ongoing work in Community Constitutionalism, I study the art of a New Orleans-based collective called Blights Out, whose members have staged performances and actions that protest how people of color have been deprived of property post-Katrina. Through careful analysis of their billboards and engagements, I tease out two legal arguments made by the collective: First, that the government may wrongfully deprive the people of property through omission. Second, that the window of time within which such takings may be discerned proves much wider than that imagined by Judge Dyk’s description of the “totality of circumstances.” Depending on the work of popular constitutionalists and my previous study of the linkages between art and jurisprudence, I conclude that Blights Out’s legal thought offers a powerful rejoinder to Judge Dyk’s analysis, and offers important arguments for the future applications of takings law.

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies in the struggle, who share overlapping ideologies and goals. The same holds true for Christians—there is much in the teachings of Jesus to suggest that he aligned more with forgiveness than capital retribution. As such, abolitionists would do well to focus on these demographics more earnestly than in the past. The notion of “culture work” underscores these groups as natural allies in the quest to end the death penalty.A great irony in abolitionist messaging inspires this Article, namely, that abolitionists have failed to get much mileage out of the “Greatest Story Ever Told.” The narrative of Jesus of Nazareth stands as a powerful message to convey the problems inherent in capital execution, yet its explanatory power has gone largely untapped. Jesus was, by today’s standards, wrongfully convicted, tortured, and executed by the state. The simplicity of the story is breathtaking and sits at the core of abolitionist concerns: An innocent man was put to death. Like these religious considerations, there are others that reveal how political conservatives share overlapping space with their religious counterparts. For example, it is arguable that being anti-death penalty is both a religious and politically conservative posture. The Declaration of Independe

On March 8, 2004, the University at Buffalo Law School hosted its annual Mitchell Lecture,1 a panel discussion entitled, "Who Gets In? The Quest for Diversity After Grutter." The Mitchell Committee decided to focus this year's lecture on innovative proposals to ensure diversity in law school admissions in light of the Supreme Court's ruling in Grutter v. Bollinger, which confirmed that race and ethnicity could be taken into consideration in admission decisions for diversity purposes. Noting that much of the debate about Grutter thus far has emphasized the decision's constitutionality or its implications for affirmative action, the Committee sought to have a different kind of conversation, one that explored new approaches to admissions that might aid law schools in admitting more diverse student bodies. To this end, the Committee invited five leading scholars, whose work, either analytical or empirical, could change or deepen understandings about the potential for and the obstacles to diversity in law school admissions post-Grutter. Their short presentations (each speaker had only twelve minutes to speak), which provoked a lively discussion, are presented in this edited transcript of the event together with selected excerpts from the question and answer period.

This article examines the effect of departmentalism on presidential compliance with constitutional law. Most commentators agree that departmentalism weakens the influence of courts in the determination of constitutional meaning and the control of non-judicial actors. The article takes a different view. It defines “moderate departmentalism” as the authority of the President to refuse to adopt a constitutional interpretation announced by the Supreme Court. Drawing on ideas developed in the literature on “new governance” and administrative law, it then argues that moderate departmentalism increases the capacity of the federal courts to control presidential conduct.

Book review of James A. Gardner's Interpreting State Constitutions: A Jurisprudence of Function in a Federal System

0, Reprinted from the Proceedings of the Twenty-Fifth Annual Meeting of the Maryland State Bar Association, 1920.