It’s the Reply, Not the Comment: Observations About the Bierschbach and Bibas Proposal
By Ronald F. Wright. Full text here. In this response piece, Ronald F. Wright considers Notice-and-Comment Sentencing by Richard A. Bierschbach and Stephanos Bibas, 97 Minn. L. Rev. 1 (2012).
Continue ReadingRage Against the Machine: A Reply to Professors Bierschbach and Bibas
By Erik Luna. Full text here. In this response piece, Erik Luna considers Notice-and-Comment Sentencing by Richard A. Bierschbach and Stephanos Bibas, 97 Minn. L. Rev. 1 (2012).
Continue ReadingProtecting Property Through Politics: State Legislative Checks and Judicial Takings
By Stephanie Stern. Full text here.
Continue ReadingMind, Body, and the Criminal Law
By Francis X. Shen. Full text here. Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.”…
Continue ReadingHealth Law as Disability Rights Law
By Jessica L. Roberts. Full text here. When asked to name the most substantial civil rights victory for people with disabilities in recent years, many would choose the Americans with Disabilities Act Amendments Act of 2008. However, this Article contends that the Affordable Care Act (ACA) also represents a significant—albeit unconventional—advance for disability rights. Historically, health…
Continue ReadingReligion’s Footnote Four: Church Autonomy as Arbitration
By Michael A. Helfand. Full text here. While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four––that the ministerial exception is an affirmative defense and not a jurisdictional bar––undermines decades of conventional thinking about the relationship between church and state. For…
Continue ReadingNote: Turner v. Rogers, the Right to Counsel, and the Deficiencies of Mathews v. Eldridge
By Tom Pryor. Full text here. This Note uses Turner v. Rogers as a case-study to demonstrate how the Court’s procedural due process analysis, as laid out in Mathews v. Eldridge, is deficient. The application of the Eldridge balancing approach can appear arbitrary when its outcomes are compared across similar situations or when analyzed in depth…
Continue ReadingNote: Disrupting the Pickering Balance: First Amendment Protections for Teachers in the Digital Age
By Emily McNee. Full text here. Engaging in speech on Facebook has led teachers to be investigated, suspended, and even fired. The nature of online speech on social networking websites like Facebook presents novel concerns in First Amendment law. As Facebook and other forms of social media have become increasingly popular, teachers have been disciplined and…
Continue ReadingAre State Constitutions Constitutional?
By Timothy M. Tymkovich. Full text here. This Article will examine the history, text, and application of the Guarantee Clause (or Republican Form of Government Clause). It will first examine the historical context in which the Framers enacted Article IV, Section 4. It will then discuss the text and public understanding of the Clause. Then, it…
Continue ReadingWhen Is It OK to Limit Direct Democracy?
By Shaun Bowler. Full text here. There are many commentators and critics who want to limit direct democracy for a variety of reasons. Whatever the reason (chaotic policy making/uninformed voters/exaggerated influence of money, etc.) the end result is the same: initiatives and direct democracy should become harder to use. The difficulty is twofold: first, often the criticisms…
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