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Article
27 December 2024

New York Times v. Sullivan: A Civil Rights Story

Samantha Barbas
The 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.” Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white jury awarded Sullivan $500,000. The purpose of the lawsuit was to attack the civil rights movement directly, and also indirectly, by stifling press coverage of civil rights protest activities. The Times and the civil rights leaders appealed to the U.S. Supreme Court, claiming that Alabama’s strict libel laws, which were similar to most libel laws at the time, violated constitutional guarantees of freedom of speech. Sullivan has been memorialized as a case that was principally about the First Amendment. Even though observers at the time saw it as a “civil rights case,” Sullivan’s connections to the civil rights movement were lost over time. This Article tells the story of New York Times v. Sullivan as both a First Amendment story and as a “civil rights story.” Sullivan grew out of the civil rights movement and transformed the course of that movement. The Supreme Court’s efforts to assist the civil rights movement resulted in a decision that broadly protected the freedom to comment on government and public affairs. Situating Sullivan in its civil rights context not only complements our understanding of the ways that civil rights and freedom of speech have been intertwined in American history, but may also help to strengthen the image of Sullivan when the ruling is under assault. Many of the attacks on Sullivan are premised on Sullivan as a “press case,” one that primarily protects the institutional press. Sullivan is vulnerable in an era when the public’s opinion of the press is generally low. These attacks might be countered if the public were reminded that Sullivan not only protects the press but also individual dissenters and critics, as the history of Sullivan makes clear.
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Article
27 December 2024

Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence

Mark Behrens, Andrew Trask
Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.
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Current Articles

Article27 December 2024

A Constitutional Right to Exclude Evidence

Colin Miller
The Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants must be accompanied by reciprocal obligations on the prosecution. As a result, defendants know how to assert these rights, and courts have clear guidance to decide whether they were violated, allowing for wrongful convictions to be both prevented and overturned. Conversely, the Court has never made clear the circumstances in which the State’s admission of unfairly prejudicial evidence violates a defendant’s right to due process. In the absence of such a ruling, courts frequently admit evidence that poses a high danger of unfair prejudice unless it merely has minimal probative value. As a result, wrongful convictions connected to such evidence can neither be corrected nor prevented. This Article argues that courts should recognize a constitutional right to exclude evidence. Under this right, even if unfairly prejudicial evidence satisfies the rules of evidence, its admission would violate the Due Process Clause if it renders a defendant’s trial fundamentally unfair.
Article27 December 2024

Administrative Law's Unavailing Duties

Daniel Epstein
Through a novel empirical approach, this Article shows that legal doctrine does not determine whether federal courts provide remedies when agencies fail to enforce a statutory duty. Plaintiffs are most likely to succeed against the government when litigating statutory procedures located within agency-specific statutes and which raise major policy questions in immigration, healthcare, Native American rights, public housing, the environment, or labor. Others are more likely to lose against the government: plaintiffs litigating statutory violations involving procedures not specific to an agency, but which apply to officers and agencies throughout the bureaucracy. These cases involve duties governing ethics, transparency, recordkeeping, or whistleblower protections (what I call “government accountability” procedures). The results challenge a 50-year scholarly consensus for theorizing about how Congress controls the administrative state. That consensus, which I call the interest group model, states that rather than conduct aggressive, public hearings to control the bureaucracy, Congress prefers to conduct oversight by creating duties within statutes that grant interested parties the ability to seek judicial redress when agencies drift from congressional preferences. The model has been adopted by legal experts, including now-Justice Elena Kagan, to explain how courts oversee the administrative state. And yet, as I show, courts do not provide remedies for violations of government accountability procedures. I theorize that litigating groups, rather than doctrine, motivate the outcomes of judicial behavior in these cases and I contend that the more an interest group can move an issue from a policy focus to a legal one, the more likely courts will entertain a remedy. At the same time, however, I take seriously the prospect that interest groups can rely on Congress to remedy bureaucratic harm. In articulating a “new oversight,” I map out how interested parties who litigate against the bureaucracy can view the congressional oversight process as a remedial channel to procedural violations by regulators.
Article27 December 2024

Exit Through the White House: Congressional Constraints on Unilateral Presidential Withdrawal from Treaties

Taylor Dalton
When does the U.S. President have the constitutional authority to withdraw from a treaty unilaterally? Where the U.S. Constitution details the making but not the exiting of treaties, the U.S. Supreme Court has largely left the issue open for the political branches to resolve. Many scholars argue that modern practice supports a conclusion that the President has the practical—if not legal—power to withdraw unilaterally from an Article II treaty or congressional-executive agreement without the consent of Congress. This argument is largely premised on the claim that Congress has acquiesced to executive practice, providing a gloss on expansive executive power to end treaty relationships. Yet there is limited systematic empirical investigation as to whether and how Congress has acquiesced to (or opposed) unilateral presidential withdrawal. Using data on congressional actions related to treaty withdrawal from the 1950s to 2020, this Article explores whether Congress has in fact acquiesced to unilateral presidential treaty termination. The data reveals that Congress is relatively active on the issue of treaty withdrawal, especially regarding security matters and arms control. The data shows that this behavior has varied over the last 70 years, with earlier actions focused on restraining the President’s power generally and later actions focused on issue areas like human rights abuses, terrorism, and arms control. Qualitative evidence also illustrates Congress’s use of formal legal and informal political means to influence presidential behavior in the context of treaty matters. This evidence challenges the premises of the argument that the President has unfettered authority to withdraw unilaterally. Moreover, it reveals the spectrum of strategies Congress employs to influence presidential behavior in areas of contested constitutional authority. The findings add to our understanding of the balance of powers related to treaty exit with implications for empirically assessing the extent of congressional acquiescence in other matters of presidential authority.
Article27 December 2024

Massey v. Texas: Eroding the Exclusionary Rule and Incentivizing Police Misconduct

Geoffrey Corn, Brandon Beck
In April 2023, the Texas Court of Criminal Appeals upheld the conviction of James Calvin Massey for possession of drugs discovered as a direct result of an unconstitutional Terry frisk. Ordinarily, with limited exceptions, the exclusionary rule prohibits the prosecution from using contraband discovered as a result of unconstitutional police action, akin to the situation Mr. Massey encountered. In fact, that’s exactly why the intermediate court of appeals reversed Mr. Massey’s conviction. When the Texas Court of Criminal Appeals reinstated Massey’s conviction, it broke new ground, holding that because Mr. Massey resisted the unconstitutional Terry frisk, his uncharged misdemeanor offense of resisting—no matter how petty or predictable—constituted an “intervening circumstance” triggering the attenuation exception to the exclusionary rule. As such, the drugs were admissible despite the unconstitutional police action. To reach its holding, the Texas Court of Criminal Appeals relied on the recent Supreme Court decision in Utah v. Strieff. But the Texas court fundamentally misapplied Strieff. Strieff’s holding depended primarily on the fact that a suspect’s intervening circumstance (an outstanding warrant) was both pre-existing and independent of any unconstitutional police action. Accordingly, in Strieff, the officer’s unconstitutional action did not taint the discovery of contraband. Not so in Massey, which went far beyond what Strieff allowed. Massey, in contrast to Strieff, creates what is in effect a per se rule that all but eliminates the exclusionary rule in Texas whenever a suspect’s reaction to an unconstitutional police seizure or search leads the officer to initiate an arrest. Not only was the Texas Court of Criminal Appeals’ opinion in Massey wrong on the law, but its holding carries enormous policy implications for policing. While the exclusionary rule exists primarily to disincentivize police misconduct, Massey points officers in another direction: It creates an incentive for police to engage in unreasonable seizures in the hope a suspect will react in a petty and predictable manner, as did Mr. Massey, providing the officer with a new basis for arrest and accordant search. Even when a suspect’s response is a direct result of a Fourth Amendment violation, Texas courts must nearly always treat that response as attenuated from the violation. Ultimately, Massey invites the very behavior the exclusionary rule was designed to deter. This Article is both descriptive in its explanation of the exclusionary rule and its exceptions and analytical in its critique of Massey and the foreseeable consequences of that flawed decision. While one focus of the article is on a recent Texas case, it is not a Texas-specific discussion. This Article, more than anything, gives needed attention to a recent trend of limiting the exclusionary rule against the backdrop of established U.S. Supreme Court guidance. It is, in this regard, a cautionary tale for courts in all states to fully consider both binding precedent and the policy implications at stake.
Article27 December 2024

Capital Trifurcation

William Berry III
The death penalty is disappearing in the United States. Annual executions remain under 25 per year, and new capital sentences per year have not exceeded 75 in over a decade. Over the past two decades, however, a new kind of death sentence has emerged—life without parole (“LWOP”). In practice, LWOP and death sentences are functionally equivalent, as most death row inmates die of natural causes in prison, not execution. For both economic and moral reasons, most states are not actively executing prisoners. Therefore, capital sentencing proceedings that focus on life versus death neglect the more consequential question—life without parole versus life with parole. That decision shapes whether one has a chance at life after prison or will die in prison, two very different outcomes. But the capital sentencing process obscures this reality at best, and at worst does not even give the jury a choice. It makes little sense to focus the jury on a hypothetical question of life and death while ignoring the real dilemma. To that end, this Article argues for a rethinking of the sentencing procedure in capital cases. First, the Article explains why mandatory LWOP sentences violate the Eighth Amendment, and why even if they don’t, states should abolish them. Then, the Article advances its central proposal—the trifurcation of capital trials. In short, states should split the sentencing phase of capital cases into two parts. In the first, the jury decides between life and death. If the jury chooses life, a second sentencing phase ensues, with the jury choosing between life with parole and LWOP. Part II of the Article describes the LWOP problem of capital sentencing— that the procedures either (1) obscure the choice between life with parole and LWOP or (2) remove that decision from the jury’s discretion altogether. Part III addresses the central barrier to capital trifurcation—mandatory LWOP sentences. To that end, it argues for the elimination of mandatory LWOP sentences, either by constitutional or statutory means. Finally, in Part IV, the Article proposes capital trifurcation, explaining the procedural nuances of and the theoretical justifications for this approach.
Article27 December 2024

Murder on the Hearsay Trail

Jeffrey Bellin
Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own. That is just the visible aspect of the problem. Lawyers are no better at hearsay than judges. Yet for every trial, there are countless non-trial resolutions where no evidence is presented, much less ruled upon. When hearsay is involved, parties evaluate the wisdom of these dispositions (dismissals, settlements, and guilty pleas) with only a rough understanding of the evidence that would be admissible at trial. This Article attempts to remedy this unsettling state of affairs. First, to get around the dullness problem, it weaves hearsay analysis into a mystery in the spirit of a John Grisham novel. The fictional tale of intrigue and murder twists and turns while dropping clues that ultimately solve the case. Then, the Article tackles hearsay’s complexity by solving the evidentiary puzzles inherent in those clues, which represent key inflection points in the doctrine. By explaining which clues can be presented to the jury, and how those answers evolved over time, the Article paints the modern American hearsay landscape and rehabilitates its (unfairly) reviled rules. Finally, the Article explains why—if we are going to have a hearsay prohibition—this is as good as it gets. Contrary to the complaints of numerous critics, the current hearsay definition is the simplest of the alternatives and offers the best results.
Article27 December 2024

Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence

Mark Behrens, Andrew Trask
Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.
Article27 December 2024

New York Times v. Sullivan: A Civil Rights Story

Samantha Barbas
The 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.” Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white jury awarded Sullivan $500,000. The purpose of the lawsuit was to attack the civil rights movement directly, and also indirectly, by stifling press coverage of civil rights protest activities. The Times and the civil rights leaders appealed to the U.S. Supreme Court, claiming that Alabama’s strict libel laws, which were similar to most libel laws at the time, violated constitutional guarantees of freedom of speech. Sullivan has been memorialized as a case that was principally about the First Amendment. Even though observers at the time saw it as a “civil rights case,” Sullivan’s connections to the civil rights movement were lost over time. This Article tells the story of New York Times v. Sullivan as both a First Amendment story and as a “civil rights story.” Sullivan grew out of the civil rights movement and transformed the course of that movement. The Supreme Court’s efforts to assist the civil rights movement resulted in a decision that broadly protected the freedom to comment on government and public affairs. Situating Sullivan in its civil rights context not only complements our understanding of the ways that civil rights and freedom of speech have been intertwined in American history, but may also help to strengthen the image of Sullivan when the ruling is under assault. Many of the attacks on Sullivan are premised on Sullivan as a “press case,” one that primarily protects the institutional press. Sullivan is vulnerable in an era when the public’s opinion of the press is generally low. These attacks might be countered if the public were reminded that Sullivan not only protects the press but also individual dissenters and critics, as the history of Sullivan makes clear.

Most Popular Articles

Comment
1 January 2015

A Religious Right to Discriminate: Hobby Lobby and “Religious Freedom” as a Threat to the LGBT Community

Travis Gasper
The Supreme Court in its 2014 decision in Burwell v. Hobby Lobby broadly expanded so-called religious freedom protections in the Religious Freedom Restoration Act (“RFRA”) by striking down a provision of the Affordable Care Act requiring employers to provide health insurance coverage for certain methods of contraception. In doing so, the Court opened the floodgates for employers to claim an exemption based upon any “sincerely held” religious belief. Without inquiry into the sincerity of that belief, businesses and corporations are free to adopt or assert beliefs that could lead to increased discrimination against employees. This is especially troublesome for marginalized groups like the LGBT community, which is already on the receiving end of discrimination under the pretext of religious exemptions. To correct any future misuse of these exemptions, Congress should amend RFRA to permit courts to assess the belief being asserted and contrast it with the potential harm if an exemption is allowed. The purpose of RFRA is to ease the burden faced by people of faith forced to go against their religious beliefs if they obey a certain statute. Easing this burden should focus on heady moral dilemmas, not mere inconveniences. Amending RFRA can ensure it maintains its initial purpose of protecting religious freedom, while not being used as a tool to perpetuate discrimination.
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Article
1 January 2016

The Law and Politics of Firearms Regulation in Reconstruction Texas

Mark Frassetto
In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts. More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.
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Arguendo (Online)
10 January 2019

Whose Land Is It Anyway? Navigating Ghana's Complex Land System

Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood
This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.
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Comment
1 March 2019

Bloody Hell: How Insufficient Access to Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women

Lauren Shaw
For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and pro- vides suggestions for possible legislative solutions.
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Comment
30 April 2021

The Growing Monopoly in the Corn Seed Industry: Is It Time for the Government to Interfere?

Bethany K Sumpter
How a company conducts business is often a consumer concern. Individuals have accused company after company of monopolistic behavior. These individuals have also criticized the Department of Justice for not stopping a monopoly from forming in a specific industry. An example is the corn seed industry, where stakeholders have accused companies of monopolistic behavior. Recent mergers and acquisitions in the corn seed industry have left fewer companies in control, and because of this consolidation, individuals are urging the government to act. This Comment argues that, while the corn seed industry is on the road to containing a monopoly, the industry does not yet contain enough characteristics to warrant a government response. However, when a monopoly does form, the government should, and likely will, act.
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