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Brnovich v. DNC: The New Test for Voting Rights

Brnovich v. DNC: The New Test for Voting Rights

In the wake of the 2020 election, a wave of restrictive voting laws were enacted across the nation. And as the January 6th attack showcased the fragility of our democracy, voting rights are top of mind for many. This is why all eyes were on the Supreme Court as it took on Brnovich v. DNC: not only the most consequential election law dispute in nearly a decade (since the 2010 Citizens United decision) but the Court’s first “vote denial” case…

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COURT IS DRAG: WHAT CITIZENS UNITED REVEALED ABOUT WESTERN IDENTITY POLITICS

COURT IS DRAG: WHAT CITIZENS UNITED REVEALED ABOUT WESTERN IDENTITY POLITICS

“The East is waiting to be understood by the Western races, in order not only to be able to give what is true in her but also to be confident in her own mission.”  – Rabindranath Tagore, “Creative Unity” (1922). * * * I came to law school because I seek nirvana. Because in my meditations three and four summers ago, I felt my country’s law, and indeed, its language itself, blocking my way to myself. This conflict of mine…

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Motions to Bifurcate: Procedural Qualified Immunity for Municipalities

Motions to Bifurcate: Procedural Qualified Immunity for Municipalities

Qualified immunity is getting a lot of well-deserved attention these days. The doctrine protects individual state actors—and by extension, their government employers—from liability when they have violated a constitutional right if that right was not “clearly established in law.” Protests over police brutality and demands for accountability have brought qualified immunity into the public spotlight. These conversations about individual accountability are important. But as necessary as they are, we cannot ignore the legal mechanisms for and barriers to institutional accountability…

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Circuits Are Splitting Hairs over Morphed Child Pornography

Circuits Are Splitting Hairs over Morphed Child Pornography

Many will remember 2020 for the various panics it revived: America’s second greatest toilet paper shortage since the 1970s, its first great pandemic since 1918, and another financial crisis. The year also brought back another moral hysteria commonly visited in America’s past: child porn panic. Tech companies caught flack for announcing a surge in child pornography being traded on their platforms, while simultaneously planning to encrypt messages that would prevent detection of those very same materials in the name of…

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Poetic Justice: Federal Convictions for Insurrection Would Strip Pensions and VA Benefits from Former Servicemembers

Poetic Justice: Federal Convictions for Insurrection Would Strip Pensions and VA Benefits from Former Servicemembers

To the disappointment of many of us who have served in the U.S. military, current and former servicemembers participated (in disproportionate numbers) in the well-documented January 2021 insurrection in our nation’s Capitol. Active members of the Armed Forces may face consequences in the military justice system, including punishment by the court-martial under the Uniform Code of Military Justice as well as administrative sanctions such as less than honorable discharge. As the US Department of Justice prosecutes the insurrectionists, a question…

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Welcome to the Real World of Extradition

Welcome to the Real World of Extradition

Following multi-jurisdictional prosecution efforts, the infamous child pornography site Welcome to Video was shut down, and a grand jury in D.C. indicted the site’s operator, Korean National Jong Woo Son. Based on the indictment, the U.S. government requested extradition of Son pursuant to the Korea Extradition Treaty. Recently, however, the Seoul High Court—the sole judicial organ empowered to hear and decide extradition cases in the Republic of Korea without right to appeal—turned down that request, generating public outcry that the Korean…

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Update on Confirmation Process

Update on Confirmation Process

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. Writing in 1990, not long after the conclusion of Robert Bork’s Supreme Court confirmation hearings, I noted the growing—although not uncontested—consensus that senators should attempt to shape constitutional meaning by aggressively inquiring about the nominee’s beliefs about interpretive methods, legal philosophy, doctrines, and even specific cases. I lamented…

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Role of Private Parties in Public Governance

Role of Private Parties in Public Governance

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. In Fragmenting the Unitary Executive, I explored the constitutionality of congressional delegations to private parties outside of the federal government.  The Supreme Court, pursuant to the Due Process Clause, had invalidated a few congressional delegations to private parties earlier in the century (see, e.g., Carter v. Carter Coal)…

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Bring Back the ’90s

Bring Back the ’90s

The following pieces are a part of Northwestern University Law Review Online Volume 114’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. Authors who published with NULR in the 1990s were provided with an opportunity to revisit the ideas, issues, and questions in their writings, and reflect on how those notions have withstood the test of time. In an exciting dialog with their original pieces, the authors examined how their…

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Public-school Moralizing is No Reason to Overturn Blaine Amendments

Public-school Moralizing is No Reason to Overturn Blaine Amendments

In November, the Supreme Court will hear argument in Espinoza v. Montana Department of Revenue, in which it will decide whether states with voucher-like schemes must allow those funds to be used at religious schools. Writing for SCOTUSBlog on September 17, Jim Kelly highlighted an underappreciated aspect of this debate: that private religious schools are not the only schools with moral education on the agenda. Rather, public schools across the country have been, since the 1990s, engaging in what is…

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