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The Contours of Gun Industry Immunity: Separation of Powers, Federalism, and the Second Amendment
Full text linkIn 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders. Additionally, this Article addresses unresolved questions concerning constitutional limits on gun industry regulation. PLCAA explicitly strikes a balance between three constitutional principles. It safeguards the individual right to keep and bear arms by protecting the gun industry from civil litigation that would unduly curtail civilian access to firearms. It insists that the separation of powers requires that gun industry regulation should derive from legislation—not common law adjudication. It affords state governments autonomy in deciding how to regulate the gun industry, recognizing that there are regional differences in attitudes about how to best reduce firearms-related violence. We counsel against interpretations of the Second Amendment’s application to gun industry regulation that would expand the right to keep and bear arms at the expense of other important constitutional principles such as the separation of powers and federalism
Becoming a Doctrine
Full text linkOn the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does a series of symptoms become a “disease?” And, importantly, what consequences flow from attaching the label? This Article tackles those important questions. It explores the significant consequences that come with the label “doctrine”—consequences for litigants, lower courts, and even theories of legal change. Becoming a doctrine is more than just semantics; it is a baptism that matters. And, significantly, it is a job not solely within the province of courts. This Article traces the fingerprints of outsiders on the journey from legal idea to doctrine. Comparing the process to doctrine evolution of the past, I argue that modern communication tools—new search methods, social media, and amicus briefing—give political agents the chance to “doctrinize” an idea quickly and to generate legal change through courts. In short, “becoming a doctrine” is now a campaign—and one that deserves our attention
Supreme Court Litigators in the Age of Textualism
Full text linkThe Supreme Court’s approach to statutory interpretation has moved in a textualist direction over the last several decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8,000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions. This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift is smaller in the briefs than in the opinions, as legislative history remains an important force in briefs (especially those of the Solicitor General) despite decades of criticism from judicial textualists and steep declines in the Court’s use of that tool. The briefs instead reflect the rise of textualism through the supplementation of legislative history with characteristically textualist tools and a shift in which tools the briefs emphasize. Disaggregating different types of litigators shows that, although there is some evidence that elite litigators responded more quickly to changes in the Court’s practices, elites and nonelites have today come to resemble each other in their interpretive styles. The findings contribute to our understanding of the Court’s informational environment and reveal a divergence between the Court’s pro-textualist rhetoric and the more pluralistic practices of litigators. This divergence may serve the Court’s informational needs better than a world in which the practicing bar emulated the Court’s text- and dictionary-dominated opinions
The Decline of Coordinated Effects Enforcement and How to Reverse It
Full text linkOpposition to anticompetitive coordination once animated merger policy. But evidence now suggests that coordinated effects challenges are disfavored and rarely pursued. This stark change in enforcement is both puzzling and troubling. Coordinated effects challenges are antitrust law’s best and often only opportunity to combat anticompetitive coordination in concentrated markets. Why are coordinated effects theories not being vigorously pursued? This Article exposes the decline in coordinated effects enforcement and the threat it poses to the maintenance of competitive markets. It does so in three steps. First, it surfaces the special role that coordinated effects enforcement plays in the antitrust framework. Second, it documents the decline in coordinated effects enforcement using multiple data sources. Third, it traces the causes of this decline to discrete changes in antitrust law and enforcement policy. After exposing the logical and economic errors in these changes, this Article proposes steps to restore coordinated effects enforcement to appropriate prominence
A Democratic Restraint on Incarceration
Full text linkWe face a crisis of excessive incarceration. Undeserved punishment violates a bedrock principle of justice, yet criminal defendants are often imprisoned without assurance that their deprivation of liberty and exclusion from society is deserved. Legislatures are under powerful pressures to authorize and even mandate carceral penalties that may exceed individual culpability; prosecutors have strong cost incentives to threaten undeserved penalties to induce guilty pleas, and to pursue those penalties if defendants refuse to plead guilty; and judges face like institutional pressures to sentence defendants more harshly if they insist on trial. This Article proposes a new sentencing model that employs the democratic voice of the jury to restrain individual injustice and mass incarceration by having the jury establish the maximum term that an individual defendant deserves and confining judicial sentencing discretion within that upper bound. In a liberal democracy, the people should share responsibility for ensuring that prison sentences imposed in their name are deserved and, therefore, morally just. Because juries directly express lay norms, they can speak with greater democratic legitimacy than judges or other experts on the moral question of desert. On this question, juries should be judges—and courts should not be permitted for any reason to impose a longer prison term than the jury has deemed to be deserved. Even legislatively mandated carceral minimums should be subject to jury override in order to avoid unjust incarceration. This proposal would operationalize a widely endorsed sentencing paradigm often called “limiting retributivism.” This model forbids sentences that exceed desert, but allows sentences to be tailored to utilitarian goals within that moral limit. Blending lay normative sense and judicial expertise, this proposed model would enable juries to perceive and prevent carceral excesses while retaining judicial discretion in the selection of final sentences. This hybrid model not only would prevent undeserved trial penalties but also would diminish plea-bargaining injustices, for prosecutors could no longer induce guilty pleas by threatening penalties that no reasonable jury would deem deserved
Principles and Practices of Estate Planning (Thomas J. Snee & Lawrence X. Cusack, 1959)
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Embryos on Ice: Issues with Estate Law and Assisted Reproduction in a Post-\u3ci\u3eDobbs\u3c/i\u3e World
Full text linkWill you have to share your property interests with an embryo in a petri dish? This Note explores the complex legal landscape surrounding the estate interests of cryopreserved embryos in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The piece delves into the implications of recognizing embryos as legal persons with rights, particularly in the context of estate law, where the classification of embryos can significantly impact property distribution, class-closing rules, and the application of the Rule Against Perpetuities. By examining case law, statutes, and the potential consequences of states adopting the Dobbs interpretation of life beginning at conception, this Note underscores the urgent need for clear legal standards and thoughtful consideration of trust and estate issues related to assisted reproductive technology
Career Spotlight: Shannon Straughan, Esq.
Full text linkAn interview with Shannon Straughan. She is an accomplished attorney specializing in intellectual property law, commercial contracts, and brand protection. With a deep passion for sports and wellness, Shannon leverages years of legal expertise to empower content creators, athletes, and businesses to achieve sustainable growth and protect their assets in a competitive landscape. Shannon offers comprehensive outside general counsel services tailored to content creators, athletes, and businesses seeking proactive legal support. She provides strategic advice to help clients navigate the complexities of their industries. Whether drafting agreements, resolving disputes, or guiding brand development, she delivers personalized solutions that empower clients to grow their ventures with confidence and peace of mind. As a retired powerlifter and bodybuilder, Shannon brings a unique perspective to her practice, fostering trust and relatability with athlete clients. Her hands-on approach and dedication to integrity have earned her a reputation as a trusted advisor in the sports and entertainment industries. Beyond the legal field, Shannon is committed to fostering opportunities for the next generation of athletes and creators, blending professional expertise with a genuine desire to see clients thrive on and off the field