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Fight for Your Right (to Repair)
No full textIn his article, Sam Bonfiglio brings to light how the Digital Millennium Copyright Act (DMCA) in its current iteration implicates consumer’s right to repair their purchased devices. He argues that Section 1201 of the DMCA unfairly impedes upon both a consumer’s right to choose their desired service location as well as their right to attempt service themselves. He argues these restrictions ultimately force consumers to use a manufacturer’s licensed channel of service, effectively granting them a monopoly. The article advocates for the reintroduction of the Freedom to Repair Act to amend the DMCA to commercialize the market for these services while simultaneously protecting manufacturer’s interests
Prenatal Personhood, State Duties, and Congress’s Abortion Power Under the Fourteenth Amendment
Full text linkMany antiabortion jurists have contended that by its original meaning, the Fourteenth Amendment not only (1) recognizes the personhood of prenatal human beings, but also (2) requires states to have and enforce the antiabortion laws necessary to the equal protection of these prenatal persons, and even (3) empowers Congress to pass remedial antiabortion laws where the state fail to protect such persons.
In this essay, I will contend that the Amendment does indeed recognize the personhood of prenatal human beings, but largely leaves with the states the authority to determine the scope of the protection to be afforded such persons. More specifically, the evidence is clear and convincing that the Amendment’s Due Process and Equal Protection Clauses, as originally understood, guarantees the prenatal person’s life only against (1) state destruction, and (2) state refusal to enforce the laws, if any, that might protect such life. Therefore, Congress’s abortion power extends no further than to remedy such state violence or state refusal to enforce—but does not interfere with the states’ power to determine to what extent, if any, the laws will protect prenatal persons
The Real Impact of General Deterrence: Empirical Insights from the Robbery Data of Three American Cities
Full text linkGeneral deterrence theory relies on the critical assumption that prospective offenders will be deterred from committing crimes when they are aware of the apprehension and punishment of others. This idea has been reiterated across thousands of years of Western political thought and has significant implications in modern American criminal sentencing, though it has not been historically subjected to rigorous testing. The recent availability of voluminous crime data permits a deeper examination of the real impact of sentencings on crime trends and allows the opportunity for previously impossible analyses regarding the efficacy of general deterrence.
To examine whether there is evidence to support the critical assumption underlying general deterrence, this article examines five years of robbery data from three geographically, politically, and demographically diverse American cities: Boston, Massachusetts; Mesa, Arizona; and Washington, District of Columbia. By analyzing robbery trends in relation to the announcement of robbery sentences in these cities, the author seeks to determine whether there is an offense-relative general deterrence relationship between sentences and subsequent robberies committed within each community. An integrative data analysis also examines the aggregate data from these three cities to identify broader patterns indicative of the efficacy of general deterrence in criminal sentencing
Children and Chairs, Artifacts and Reality
Full text linkWhere do children come from? The source of childhood—either nature or political will—is a matter not merely of chronology but of authority. Whoever makes children gets to define childhood. Legal childhood is one type of legal personhood. Legal personhood matters because legal persons bear legal rights and duties. Rights and duties direct how we act toward each other. Thus, our ideas about how persons come to be, who counts as a person, and how persons are defined in law determine in large part how we act toward persons, both other persons and ourselves.
A legal person is an artifact of law with a particular function. Its function is to identify a human being, group of human beings, or class of human beings to whom a right is owed or who bears responsibility for rendering the right to some other person. So, though childhood and personhood are artifacts of law, they are not arbitrary. Even artificial persons, such as trusts and corporations, must reflect pre-existing realities about the natural persons for whose benefit we make them. Laws presuppose the natural existence and natural personhood of human beings because artificial laws are made by human beings for human purposes.
Natural persons make artificial laws; laws do not make natural persons. All laws, including those laws that identify children and secure their rights, serve the function of laws by attending to who human beings actually are and by securing their well-being. The legal status of childhood is and must remain rationally determined in large part by truths about vulnerable human beings
Deference and Discretion in Bank Regulation
Full text linkThe U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine of judicial deference to administrative agencies’ interpretations of federal statutes, will impact future regulatory policy. The shape of that impact is less certain. Using bank regulation as a vantage point, this Article explores how the end of Chevron may influence legislative and regulatory outcomes. Through case studies, the Article contextualizes the impact of Chevron within the bank regulatory regime’s complex ecosystem of technical expertise, political influence, and industry capture. The dismantling of New Deal restrictions on banks’ activities illustrates how Chevron may have enabled deference to regulators captured by industry interests rather than motivated by the public interest. This history provides some reason to celebrate, rather than dread, the end of Chevron. Moreover, federalism interests and explicit statutory delegations of discretion have historically muted the impact of Chevron. For these reasons, the policy impact of Loper Bright will likely be mixed and not necessarily profound
Justice, Recovery, Resilience, and Redemption: A Story of Unlikely Connections
No full textOn Tuesday, February 18, 2025, Catholic Law’s Office of Student Life hosted an inspiring event titled Justice, Recovery, Resilience, and Redemption: A Story of Unlikely Connections. The panel featured a compelling discussion between Laurie Besden, a former defendant; Judge William Carpenter; and FBI Special Agent Stephanie Shark. Together, they shared an extraordinary story about the transformative power of justice, recovery, and second chances
The Great Writ of Popular Sovereignty
Full text linkAmerican habeas corpus, long conventionally known as the Great Writ of Liberty, is more properly understood as the Great Writ of Popular Sovereignty—a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will. Once we grasp this conceptual shift, the implications for the law of habeas are profound.
In the past fifteen years, novel archival research has shown the Great Writ of Liberty’s founding myth to be ahistorical—that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law. Given widespread consensus that English history should and does drive American habeas jurisprudence, and that the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to libertarian frameworks. Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and extravagantly wasteful. Over three of the Supreme Court’s past four Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of general criminal jurisdiction—and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.
An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as a Great Writ of Popular Sovereignty. By following that imperative, we just might save American habeas jurisprudence from its present crisis. Most critically, the popular-sovereigntist theory allows us to make coherent sense of the historical question at the heart of Justices Gorsuch and Kagan’s recent debates over the fate of postconviction habeas review.
Paradoxically, shifting from a libertarian to a popular-sovereigntist conception of the writ might render habeas doctrine more capable of protecting individual liberty. Such a shift would point toward novel solutions to countless otherwise inscrutable questions in the theory and doctrine of American habeas
