Reclaiming Equality to Reframe Indigent Defense Reform
By Lauren Sudeall Lucas. Full text here. Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even…
Continue ReadingInflammatory Speech: Offense Versus Incitement
By Alexander Tsesis. Full text here. The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases—Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens—the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set…
Continue ReadingNote: Going Back in Time: The Search for Retroactive Rulemaking Power in Statutory Deadlines
By Chris Schmitter. Full text here. Congress regularly enacts complex laws that require administrative agencies to promulgate rules by specific deadlines. Yet, as agencies do the work of creating rules and, from time to time, miss statutory deadlines, a question remains as to whether an agency can promulgate a rule that is retroactive to the statutory…
Continue ReadingNote: Up or Out: Why “Sufficiently Reliable” Statistical Risk Assessment Is Appropriate at Sentencing and Inappropriate at Parole
By Pari McGarraugh. Full text here. Sentencing judges and parole release authorities are increasingly using statistical risk assessments to guide their decision-making. Risk assessment instruments rely on statistical research and modeling to predict an individual’s chance of recidivating based on information about the individual like age and number of prior arrests. These instruments are subject to…
Continue ReadingNote: First Amendment and the Right to Lie: Regulating Knowingly False Campaign Speech After United States v. Alvarez
By Staci Lieffring. Full text here. With the people relying more and more on political advertising to inform them about candidates and elections, it is imperative to try to stop or limit false speech about candidates and the election procedures. False speech undermines the integrity of elections. This has led some states to enact laws banning…
Continue ReadingThe Presumption of Patentability
By Sean B. Seymore. Full text here. When the Framers of the United States Constitution granted Congress the authority to create a patent system, they certainty did not envision a patent as an a priori entitlement. As it stands now, anyone who files a patent application on anything is entitled to a presumption of patentability. A…
Continue ReadingBranding Privacy
By Paul Ohm. Full text here. This Article focuses on the problem of the privacy lurch, defined as an abrupt change made to the way a company handles data about individuals. Two prominent examples include Google’s decision in early 2012 to tear down the walls that once separated data collected from its different services and Facebook’s…
Continue ReadingOur Partisan Foreign Affairs Constitution
By Jide Nzelibe. Full text here. The conventional wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs powers, as efficiency enhancing constraints that yield benefits for all societal actors. This Article argues, on the contrary, that partisan actors can often manipulate the scope of the foreign affairs powers to achieve narrow ideological…
Continue ReadingDoes International Law Matter?
By Shima Baradaran, Michael Findley, Daniel Nielson, & J.C. Sharman. Full text here. The importance of international law has grown in an increasingly global world. States and their citizens are interconnected and depend on each other to enforce and comply with international law to meet common goals. Despite the expanding presence of international law, the…
Continue ReadingNote: Stifled Justice: The Unauthorized Practice of Law and Internet Legal Resources
By Mathew Rotenberg. Full text here. Advances in computer technology are effectively commoditizing the law and revolutionizing the ways in which individuals seek and receive legal services. Internet Legal Providers (ILPs) present tremendous potential for increased access to legal services, which is vital to an increasing number of unrepresented litigants, as well as to combat shrinking…
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