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\u3cem\u3eKennedy v. Louisiana\u3c/em\u3e and the Future of the Eighth Amendment
Get PDFIn 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024. These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency. Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana. These laws, which resemble state attempts to undo abortion protections through legislation, are more than ordinary death penalty politics. Scholars have warned that the Court’s growing reliance on original meaning, history, and tradition may undo extant Eighth Amendment protections. States have filed amicus briefs asking the Court to reject Eighth Amendment precedent. More recently, in City of Grants Pass v. Johnson, the Court described the Eighth Amendment in narrow, historically focused terms, signaling that further alterations to the Eighth Amendment are coming.
This Article addresses the potential for overruling Kennedy v. Louisiana and what that may mean for the future of the Eighth Amendment’s Cruel and Unusual Punishments Clause. While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy. The Supreme Court’s recent decision in Grants Pass demonstrates that the Court is currently “stealth overruling” its Eighth Amendment jurisprudence. The Court is likely to continue this project because of changes to its membership, its new approach to stare decisis, and legislative opportunism. This Article contributes to recent academic literature that addresses the future of the Eighth Amendment by analyzing how new state laws expanding capital offenses to include the rape of a child may undermine precedent through the Court’s reliance on “democratic deliberation” narratives, as described in scholarship by Professors Melissa Murray and Katherine Shaw that addresses the aftermath of Dobbs v. Jackson Women’s Health Organization.
This Article describes two possible future directions for Eighth Amendment jurisprudence: “devolving” standards of decency—in which states can create a national consensus to undo constitutional protections—or, more likely, a restrictive historical approach. This Article concludes by discussing how these changes threaten the stability of Eighth Amendment jurisprudence and explaining the risks of legislative and judicial expansion of the death penalty after decades of judicial rulings that attempted to narrow it. It may be tempting to dismiss the consequences of overruling Kennedy—people convicted of sexually assaulting children are targets of universal revulsion. But undoing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment
Brief of Civil Procedure Professors Suzette Malveaux, Alan Trammell, Alexi Pfeffer-Gillett, and Doug Rendleman as Amici Curiae in Support of Respondents: \u3cem\u3eTrump v. CASA\u3c/em\u3e, \u3cem\u3eTrump v. Washington\u3c/em\u3e & \u3cem\u3eTrump v. New Jersey\u3c/em\u3e
Get PDFNationwide injunctions are constitutional. Their core feature—courts’ power to render decisions that directly benefit nonparties—is consistent with traditional equitable practices. Accordingly, the Article III “judicial power” comprehends such remedies. Nationwide injunctions also comport with Article III’s case-or-controversy requirement, including constitutional standing.
Broad remedies are sometimes necessary, especially when government actors willfully disregard people’s rights, and the usual tools of aggregate litigation (such as class actions) are not practically available to vindicate those rights. Moreover, courts can readily navigate prudential concerns about nationwide injunctions, from fears of judge shopping to prematurely freezing the law. Courts remain attuned to these concerns, and Congress and the Judicial Conference have effective tools to assess and implement any necessary limitations. In appropriate cases, including this one, nationwide injunctions remain a vital tool in holding government accountable to the people
The Big Cost of Small Farms
Get PDFAmericans love meat. We celebrate our independence with steaks on the grill, we enjoy our favorite pastime with hot dogs, and we give thanks with turkey. Our love of meat is so ingrained in our culture that, historically, small increases in meat prices have driven the populace to riot. Today, meat prices are rising. Simultaneously, the largest meat processors and packagers are seeing record profits. Consumers, in turn, are outraged. Their emotions are being fueled by politicians who blame rising profits on a pandemic of greed and collusion and then argue that rigid antitrust enforcement is the only solution.
This account, however, relies on several false premises. While antitrust is thought to provide consumers with more choice, lower prices, and better quality, that expectation is not true in every arena. In the context of food and agriculture generally, and meat specifically, antitrust enforcement is more likely to raise food prices, limit cheap food options for poor people, and exacerbate problems of hunger and poor nutrition. In reality, the group most likely to benefit from such enforcement is small farmers, as was intended. Antitrust, as applied to meat, is thus both regressive and protectionist, sacrificing food accessibility in favor of protecting small farms.
This Article, The Big Cost of Small Farms, addresses the origin of this antitrust narrative and explores its harmful outcomes, using a consumer-centered approach to make the normative argument that the politicization of food production has always been and continues to be dangerous, resulting in disparate harms to poor people. Only in dispensing with the overreliance on antitrust enforcement will the poorest among us retain the option to buy cheap meat, an American staple. In this way, this Article serves as a necessary corrective to the current antitrust movement, which sees corporate bigness--without more nuanced consideration--as a curse
Ghosting the Crowd
Get PDFCrowdfunded companies are legally bound to provide investors with an annual report—but most don’t. This “ghosting of the crowd” violates federal securities laws and raises the risk of opportunism by entrepreneurs, who are more prone to misbehave if no one is watching. Most ominously, it threatens the very viability of the investment crowdfunding market, as investors who are ghosted by one company are less likely to invest in another.
This Article reports on the embarrassing record of noncompliance with the annual report rule imposed by the Jumpstart Our Business Startups (“JOBS”) Act of 2012 and Regulation Crowdfunding, and proposes a simple solution: Crowdfunding platforms should withhold one percent of the capital raised by an issuer and only release it once the company files its first annual report. Due to competitive pressure, however, any given crowdfunding platform is unlikely to impose such a rule on its own; Securities and Exchange Commission (“SEC”) action is needed. This Article accordingly concludes with a proposed regulation readymade for the SEC to adopt
Leveling the Playing Field? Exploring the Moral Ambiguity of the Private Attorney General Model
No full textJohnson & Johnson’s market cap is twice the GDP of Oklahoma. So, when Oklahoma hauled Johnson & Johnson and other behemoth pharmaceutical companies into state court for their participation in the opioid epidemic, Big Pharma’s resources created a David v. Goliath situation. Against all odds, Oklahoma stood toe-to-toe with Big Pharma and brought home more than $650 million in settlement funds.
Oklahoma’s success would be otherwise impossible without the assistance of three private law firms serving the role of “private attorneys general.” The State signed contingency fee arrangements with the firms, transferring the financial burden of litigation from the State to the firms, with the promise of a share of any recovery.
Critics argue that state attorneys general contracting with private law firms is akin to making a deal with the Devil. State attorneys general, sworn to public servitude, are thought to use litigation solely as a tool to protect citizens of their state. While private law firms are seen as businesses with the monolithic goal of increasing profit and maximizing shareholder value. The private attorney general model creates the natural concern that the underlying profit motive incentivizes law firms to litigate in a way that guarantees the highest recovery, not in the way that guarantees the most just outcome.
This Note analyzes Oklahoma’s bout with Big Pharma and the efficacy of the private attorney general model by reviewing every publicly available settlement and calculating the contingency fee awarded to the private law firms. The Note sets aside the black and white analysis of state attorneys general as purely altruistic actors and private law firms as purely money-hungry entities. In the end, this Note concludes that the private attorney general model can be exploited by corrupt players on either side but, with the appropriate safeguards, can produce massive rewards for states willing to accept the risk
Much Ado About Critical Race Theory
No full textThis Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory
(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither reflecting a “legitimate pedagogical concern” nor pursuing a “valid educational purpose” is all for naught under current doctrine that effectively presumes the legitimacy and validity of state educational actions without question. And so, this Article argues for adjusting this conclusory presumption into a rebuttable one, and it turns to education science and practice on teaching and learning for expert insight on which actions satisfy this basic condition. This Article’s proposed “workable constitutional rule” is the rarest of doctrinal interventions that would be simultaneously corrective, conservative, and critical. The irony elaborated by this Article is that these so-called “anti-CRT” laws had little to do if anything with critical race theory. It was the states’ misappropriation of CRT for political purposes that elevated the theory to doctrinal, popular, and pedagogical prominence. That it took “much ado about critical race theory” to begin meaningful constitutional inquiry in various stakeholders’ interests in how states choose to educate is befitting—and instructive
Takings Doctrinalization
Get PDFThe U.S. Supreme Court’s takings jurisprudence is shaped by an unusually strong reliance on doctrinalist methods of interpretation and reasoning. From Pennsylvania Coal Co. v. Mahon to Penn Central Transportation Co. v. City of New York to Kelo v. City of New London, the Court heavily consults its past takings decisions or refers to the tests, principles, or standards from those decisions as epistemic guides to draw meaning from the Takings Clause. This long history of takings doctrinalization, however, was abruptly disturbed in Nollan v. California Coastal Commission and Dolan v. City of Tigard. There, Justices Scalia and Rehnquist each crafted, in separate opinions, two sequential parts of the Court’s new federal exaction doctrine by borrowing wholesale from exaction tests created by state supreme courts to guide the Court’s effort to establish an exaction jurisprudence under the Takings Clause.
Notwithstanding this paradoxical moment of “takings federalization”—that is, federal borrowing of state doctrine to inform and shape federal takings jurisprudence—the Court immediately reverted to its doctrinalist roots and habits in subsequent takings cases and, to date, has not returned to the method of consulting state doctrines practiced in Nollan and Dolan. Why is this? What explains this short-lived departure from and rupture in federal doctrinalist methods for the unorthodox reliance on state court doctrines? No scholar has explored this unexplained phenomenon. This Article endeavors to answer these puzzling questions and offer an explanation for why the Court federalized state exaction doctrines in Nollan and Dolan, but nowhere else in its modern takings jurisprudence.
This Article argues that the Supreme Court is unlikely to federalize state takings doctrines unless or until several limited conditions have ripened: the clear absence of federal precedent, the sufficient development and maturity of state court doctrines, and the effective advocacy by litigants and amici curiae to draw attention to the value of consulting state court doctrines as appropriate sources to inform federal takings jurisprudence by litigants and amici curiae. These conditions were sufficiently ripe for takings federalization in Nollan and Dolan. This Article then explores this new ripeness framework by examining the Supreme Court’s recent ruling in Sheetz v. County of El Dorado which found that legislatively-enacted exactions, like administrative takings, are subject to the Court’s federal exactions scrutiny. The Article concludes, however, that the conditions in Sheetz were not ripe for takings federalization. While the Court decided Sheetz to address the division of state court rulings on the question, the Court did not establish new or modify existing exaction jurisprudence by relying upon, borrowing or adopting state court exaction doctrines. The Court simply expanded the reach of its preexisting federal exaction doctrine without borrowing from the states. The application of the ripeness framework to future takings cases, nevertheless, offers scholars and jurists a workable and intelligible framework to guide the Court in determining whether, when, and how to appropriately exercise takings federalization
Progressive Prosecution and the Progressive Prosecutor Movement, in Oxford Research Encyclopedia of Criminology (Henry Pontell ed., 2025)
No full textA new kind of prosecutor has gained attention across the United States. Instead of running campaigns based on tough-on-crime promises and draconian sentencing, these prosecutors promise to use their power and discretion to enact criminal legal reforms. These new prosecutors believe that the incarceration-led approaches of the past have caused harm rather than solved it. They campaign on reducing mass incarceration, holding police officers accountable, and addressing the disparities in the criminal legal system. Those who support this movement believe that these prosecutors can be the main drivers of reform within the criminal legal system.
These new prosecutors are called “progressive prosecutors,” although there is no widely accepted definition of the term. There is debate within and outside of the legal community about what it means to be a progressive prosecutor. Scholars and activists disagree about whether it is possible for those tasked with charging and incarcerating defendants to be the drivers behind large-scale criminal reforms. Supporters of the progressive prosecutor movement believe not only that prosecutors are the best situated to achieve large-scale criminal reforms but also that they have an obligation to do so, given their role in perpetuating mass incarceration and racial disparities in the criminal legal system. Prison abolitionists do not believe that prosecutors can enact this change. They argue that progressive prosecutors will only give further legitimacy to a system that perpetuates racism and violence. There is also debate regarding whether the progressive reforms being implemented by these new prosecutors are achieving the goals and results the movement envisioned.
Regardless of the efficacy of their reforms, progressive prosecutors have been targeted by those who do not agree with their reform-oriented approach. Governors have removed prosecutors from their democratically elected positions, legislatures have passed preemption laws, and recall elections have been held. This pushback has resulted in discretion and power being stripped from prosecutors in unprecedented ways. Despite these efforts, progressive prosecutors continue to run successful campaigns across the United States, representing larger populations and more areas than ever before, and attempting to implement reforms to the criminal legal system.https://scholarlycommons.law.wlu.edu/fac_books/1201/thumbnail.jp
Is There a Librarian in the House? Researching Federal and Virginia State Health Law
Get PDFHealth law is a complex and diverse practice area, encompassing issues ranging from insurance law and patient privacy to medical malpractice and vaccine law. Researching health law thus entails a combination of primary and secondary resources, statutory and regulatory updates, and often a nuanced or multijurisdictional understanding of healthcare policy. For both career specialists and lawyers who are new to the field, finding accurate, current information on both federal and state-specific health laws is critical.
Luckily, the librarian is in. This guide highlights key resources and practical strategies for effectively researching federal and Virginia health law, tailored to legal practitioners in the Commonwealth