Mitchell Hamline School of Law
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The Theoretical and Practical Shortcomings of Necessitating Appreciation for Punishment—Madison v. Alabama, 139 S.Ct. 718 (2019)
Get PDFDamages for Tortious Harm to Pets: Minnesota\u27s Market Value Approach Severely Undercompensates Plaintiffs
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A Pleasure to Burn: How First Amendment Jurisprudence on Book Banning Bolsters White Supremacy
Get PDFContempt Power and the United States Courts
Get PDFContempt power is one of the most important legacies of English common law in federal common law. Substantively, the contempt power of the United States Courts is relatively similar to that employed by the Court of King’s Bench in the eighteenth century. Procedurally, however, it is quite different. The Rules Enabling Act of 1934 created an interbranch framework for crafting procedural rules for the United States Courts. All three branches of the federal government collaborated under that framework with the intention of rationalizing, systemizing, and delimiting the boundaries of contempt power. The culmination of decades of strenuous rulemaking, unfortunately, was a degree of complexity and confusion. An ever-expanding body of judicial precedents, statutes, and rules transformed what was once a relatively simple exercise of discretion into a sprawling quagmire of intertwined authorities. The time and labor needed to understand and employ contempt power is too great. By my count, federal contempt law now consists of 178 opinions issued by the United States Supreme Court, 182 statutes in the United States Code, 95 regulations in the Code of Federal Regulations, 37 nationwide rules of federal practice and procedure, 10 circuit wide rules governing policy and procedure, and 151 local rules governing practice and procedure. Too much. Far too much. This article therefore proposes a “system update” for the contempt power of the United States Courts. The endgame is simplicity: the federal judiciary can greatly improve itself by clarifying contempt proceedings, eliminating surplusage, and switching the burden of discretion for punishing contempt from prosecutors back to judges
Trauma-Informed (As A Matter of) Course
Get PDFLaw students are impacted by trauma and law professors are in a position to help by adopting a trauma-informed approach as a matter of universal precaution. The 2021 Survey of Law Student Well-Being (“SLSWB”) revealed that over twenty percent of responding law students meet criteria that indicate they should be evaluated for post-traumatic stress disorder (“PTSD”). The study also revealed that almost fifty percent of responding students reported an important motivation for attending law school was experiencing a trauma or injustice. Put differently, law schools are full of law students who have experienced trauma, many of whom are actively struggling with trauma. Students are coming to law school not just in spite of their trauma histories but because of their trauma histories.
Law schools must respond accordingly. Armed with this new knowledge, legal educators have the opportunity to transgress and transform to provide trauma-informed legal education. It has long been known that legal systems are full of people with trauma histories and that interacting with the legal system can be traumatic. Given the pervasive presence of those with trauma histories in law schools and the legal system, law professors must have a basic understanding of trauma and trauma-informed practices to do their jobs they seek to serve.
This Article will explore what law professors need to know about trauma, why law professors need to understand trauma, and how to employ a trauma-informed approach in their doctrinal courses as a matter of universal design. It contributes to existing conversations on trauma-informed better practices and trauma stewardship. Additionally, it provides practical, solution-focused, strengths-based tools for teaching through a trauma-informed lens. It adds to a body of legal scholarship on trauma-informed pedagogy and lawyering and is grounded in scholarship from other disciplines. It also relies on my own learned-experience from my efforts to teach and practice law in a trauma-informed manner
Gaping Gaps in the History of the Independent State Legislature Doctrine: McPherson v. Blacker, Usurpation, and the Right of the People to Choose Their President
Get PDFThe so-called independent state legislature doctrine was the jurisprudential heart of the effort by former President Trump and allies to overturn the 2020 presidential election and was featured in the briefs for Texas v. Pennsylvania. The idea that state legislatures might have power to intervene against the popular vote for the electoral college helped animate the attack on the Capitol on January 6, 2021. Frighteningly, at the very end of the 2021 Term, the Supreme Court accepted review of a North Carolina case—Moore v. Harper—in which Republican Party legislators invoked the independent state legislature doctrine to contend that state legislators are at liberty to create entirely partisan congressional districts, freed from constraints in the North Carolina Constitution as interpreted by the state’s judiciary.1 A victory by these legislators would directly implicate their parallel power to reject or ignore any state’s popular vote for President. The independent state legislature doctrine rests on dubious dicta in McPherson v. Blacker.2 McPherson concluded that “plenary power” over the appointment of presidential electors was “conceded” to state legislatures through the “practical construction” of the Constitution.3 Yet the Court excluded, with almost surgical precision, extensive historical evidence that shows that the legislative election of electors was not intended by the Framers nor by those who ratified the Constitution.4 Further, such legislative election authority was vigorously contested whenever it mattered—in the presidential elections in 1800, 1812, and 1824—and was soon thereafter abandoned in the face of the claim that this doctrine was a “usurpation.”5 The doctrine was more emphatically rejected following the Civil War, including through Section 2 of the Fourteenth Amendment. Nonetheless, Bush v. Gore repeated McPherson’s historical amnesia and provoked a doctrine that directly threatened such core democratic values as state court authority to interpret state constitutions and the power of the people to elect the President of the United States
