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Domestic Military Deployments After \u3cem\u3eTrump v. United States\u3c/em\u3e
No full textThe current legal regime governing domestic military deployments was, largely, born of the Civil War. While conflict was ongoing, Congress enacted what are now a pair of statutes criminalizing military interference with federal elections. And as a coda to Reconstruction, Congress criminalized using the military as a civilian law enforcement force. Over the past 160 years, successive Congresses and Presidents have steadily chipped away at these crucial criminal-law protections. In 2024, the Supreme Court’s decision in Trump v. United States further undermined the limitations that remained.
In Trump, the Supreme Court held that Presidents enjoy, at minimum, a presumption of immunity from criminal prosecution regarding their official acts. The majority construed “official acts” quite broadly, a move that is particularly consequential regarding the law of domestic military deployments given the plethora of statutes and the array of inherent constitutional powers Presidents have asserted authorizing such activities. Taken together, this amalgam of judicial intervention, statutory law, and executive practice yield a legal regime especially susceptible to abuse by a motivated President.
Equally as consequential is the shadow cast by the Trump majority’s understanding of executive power over actions taken by subordinate officials to implement presidential orders. Although Trump did not address subordinate criminal immunity, its dicta contained sweeping endorsements of executive power. This Article demonstrates how the executive branch would likely assert that, at least insofar as military deployments are concerned, implementing actions by subordinate military officials also enjoy a presumption of criminal immunity under Trump’s logic. It then presents two theories why such an argument would be incorrect—one rooted in the broader jurisprudence of subordinate immunity and another rooted in more particular jurisprudence concerning domestic military deployments.
Even without trickle-down immunity, Trump places unsustainable burdens on military personnel. The military justice system’s core tenants are largely incompatible with a world in which the President is immune from prosecution for issuing criminal orders while the military subordinates who receive those orders remain bound to refuse the same patently unlawful orders. In practical effect, military personnel will have every incentive to obey orders with a colorable basis in statutory or constitutional law, regardless of whether they run afoul of criminal prohibitions.
This is not to say that all was well regarding the law of domestic military deployments before Trump. Congresses of both parties have enacted an elaborate web of statutory law eroding this regime of criminal law. Add to this an array of implied presidential powers to deploy the military within the United States, and we had already inherited a deeply broken body of law.
While litigation can curb some of the dangers inherent to the law of domestic military deployments, Congress is the only branch capable of righting this ship. Whether by clawing back broad grants of power to the President or limiting domestic uses of the military through appropriations restrictions, what Congress began by enacting loopholes to this regime of criminal liability it must now reimagine to more fully protect our democratic institutions
National Center for State Courts International Programs Division in Arlington, Virginia
No full textIsabelle Simoneaux [1L] will assist NCSC’s work providing technical assistance, training and technology to enhance justice systems and services around the world, working with government, civil society, and development partners to create more accountable institutions and expand access to justice
Chimeric Contacts and Consent: The Ill-Reasoned Expansion of Corporate Jurisdictional Exposure
No full textTwo recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case—Ford Motor Company v. Montana—reached a fair result but with strained reasoning that will support unfair results. The second case—Mallory v. Norfolk Southern Railroad Company—was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff’s limited territorial model.
Both decisions were the result of conceptual corners the Supreme Court has created or passively allowed. This Article examines the larger history of corporate “presence” and amenability, then explains the two cases in the milieu of the larger jurisdictional paradigm, highlighting the warp they create for specific and general jurisdiction. The Conclusion summarizes various defense arguments inherent in the Court’s reasoning, although the availability of these defenses does not validate these unfortunate rulings
Countering the Criminalization of Solidarity: An Analysis of Legal Frameworks Proposed to Protect Humanitarian Aid for Migrants and Asylum Seekers
No full textThousands of migrant fatalities are reported each year all across the globe, and as staggering as current numbers are, they are likely an undercount. These deaths are a direct result of government policies that funnel migrants into dangerous routes through deserts and seas to deter immigration. Further, when individuals and groups step forward to provide immediate aid to migrants—such as food, water, shelter, first aid, and search and rescue (SAR)—they are often targeted by intimidation, harassment, discipline, and even criminal prosecution. Thus emerges a question: what legal framework can protect the rights of humanitarian aid workers acting in solidarity with migrants, and what should it entail? This Note analyzes some of the most discussed frameworks in current literature on this issue, identifies their strengths and weaknesses, and finally addresses what factors should be considered in a comprehensive, effective approach to countering the criminalization of migrant solidarity
The \u3cem\u3eRacialized\u3c/em\u3e Retaliatory State: Weaponizing Immigration Law to Criminalize Dissent
No full textThis Essay examines how systemic racism impacts the ways immigration laws operate to retaliate and criminalize immigrants who dissent. Criminalizing dissent—which recently has become more widespread—is one tool within the immigration system that reinforces America’s racialized caste system. This Essay frames immigration exceptionalism as a continual state that excludes nonconforming bodies and ideologies to instill fear as a means of authoritarian governance. This Essay challenges the history of immigration exceptionalism as an objectively neutral system of governance, arguing that it has historically criminalized racialized migrants to suppress dissent and ideological viewpoints that are not aligned with America’s racialized project. Immigration law functions as a retaliatory tool of governance by constructing criminality to suppress both racial outsiders and ideological dissenters, creating a perpetual undocumented class—especially when the two categories overlap.
Part I sets out the theoretical and historical foundations of immigration exceptionalism as a state of continuity. It traces the legal architecture of immigration exceptionalism to the Chinese Exclusion Acts and Supreme Court cases to demonstrate how the U.S. government has long relied on racialized criminal migrant narratives to construct permanent ideological and racial outsiders who can be summarily deported without regard to their human or constitutional rights. Part II walks through historical examples of how immigration laws construct criminality at the intersection of race and dissent. Part III turns to the present and examines how the current administration has escalated the use of immigration enforcement against universities and foreign students, especially in contexts where political dissent, racial identity, or ideological critique challenge state power. It examines how the state now weaponizes immigration law as a retaliatory mechanism. This analysis shows how immigration law is no longer just a border enforcement tool, but an internal governance strategy to suppress both citizen and noncitizen resistance, where the state leverages immigration law to suppress those who expose its violence, reject its exclusions, and demand accountability.
The Essay concludes by arguing that immigration law must be rebuilt from the ground up with non-reformist reforms. Non-reformist reforms reject the deeply rooted racialized logic of U.S. exceptionalism that treats racialized migrants as inherently deportable and constitutionally unprotected. If due process, proportionality, and judicial review are to have any constitutional meaning, they must be restored as the governing principles of immigration law—not exceptions to it. Only then can the United States begin to reverse the dangerous expansion of executive power that criminalizes racialized migrants and reassert a legal order that recognizes migrants as full subjects who warrant equal protection under the law.
This abstract has been taken from the author\u27s introduction
Timothy Zick on Public Protests and the Law
No full textKeith Whittington sits down with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School and a leading expert on the First Amendment law surrounding protest activities. His first book was Speech Out of Doors: Preserving First Amendment Liberties in Public Places, which was published in 2009. His latest book was published by Cambridge University Press and is Managed Dissent: The Law of Public Protests. They discuss the law of public protests in general and the specific situation of protest activities on college campuses
Guardrails Needed for Social Science Research
Full text linkIn an article written for a legal audience, The Most Dangerous Branch of Science?: Reining in Rogue Research and Reckless Experimentation in Social Welfare, (Dwyer, 2022), I illustrated this phenomenon by describing what has happened in the child welfare world in recent decades. In the article, I recommend legal reforms to address the problems, including mandating a more robust IRB [institutional review board] review, broadening the concept of unethical research, treating policy experimentation as research subject to ethical rules, and authorizing lawsuits against those who purchase or conduct intentionally skewed studies that result in harmful policy innovations. I offer here a summary of the article’s main points...
This abstract has been taken from the author\u27s introductory paragraphs
Extraterritoriality’s Empire: How Self-Determination Limits Extraterritorial Lawmaking
No full textProf. Evan J. Criddle\u27s insightful discussion sheds light on the complexities of extraterritorial lawmaking and the role of self-determination in shaping international legal frameworks
Accidental \u3cem\u3eBrady\u3c/em\u3e Violations
Full text linkProsecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.
But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is in the hands of police, sheriffs, crime laboratories, and other government agencies. Because the criminal justice “system” is riddled with communication breakdowns, prosecutors are sometimes unaware of Brady evidence that they were obligated to disclose.
The breadth of the Brady doctrine and the dysfunction of the criminal justice system do not make Brady violations acceptable or harmless. To the contrary, Brady errors are serious violations of a defendant’s constitutional rights. To reduce future violations, however, we cannot simply condemn prosecutors for intentional misconduct. Instead, it is important to understand why accidental Brady violations occur. Drawing on nearly two-dozen recent cases, this article builds a typology of situations where accidental Brady violations occur, and it sets forth solutions for reducing accidental violations in the future
Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations
Full text linkThis Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR entails a critical legal theory–informed approach to legal and broader socio-legal research. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an “ecosocialist transition.” Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and joining ecosocialism with a broader global movement of movements. As this Article contends, such ecosocialist transition strategies can be powerfully informed by CLR via embedding CLR within bottom-up forms of socio-legal praxis, such as radical movement lawyering. Ultimately, such CLR praxis constitutes an emerging and vital, yet still largely underutilized, dimension in the struggles to combat white patriarchal capitalism and to pursue ecologically viable and socially emancipatory futures