Individuals incarcerated in states that have enacted death penalty moratoria do not have their death sentences carried out in a timely and expeditious manner; instead, these incarcerated individuals sit on death row until they are either exonerated or die of natural causes. Individuals on death row in these states sit on death row for over two decades on average. This Article argues that capital sentencing in states that fail to execute individuals on death row, particularly in states with moratoria on the death penalty, violates the Eighth Amendment to the U.S. Constitution.
Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans
Anti-mask laws ban the wearing of masks in public. Popularly understood to prevent Klan activity, these laws are often vague, with a history of selective enforcement. They also clash with the exhortations to wear personal protective equipment to prevent the spread of COVID-19, which by summer of 2020 was encouraged by all states and required by many. […]
Textualism and the Duck-Rabbit Illusion
But in other cases, textualists proceed as if legal texts have an ordinary meaning even when they do not. Judges see a rabbit, or a duck, when other reasonable readers see a duck, or a rabbit. Such judges are “seeing as.” Nonetheless, they insist that they are “seeing that.” They do not think, do not know, and might not even believe, that “someone else could have said of [them]: ‘He is seeing the figure as a picture-rabbit.’” […]
Heroizing Restorative Justice: Steven Universe and Rewriting Justice Narratives through Superhero Cartoons
Steven Universe, a children’s cartoon that follows the lives and adventures of the half-human, half-alien boy Steven Universe and his family of intergalactic space aliens, “the Crystal Gems,” upends these narratives, instead modeling restorative justice principles—empathetic, dialogue-based communication, non-punitive conflict resolution, and communal healing—for children. […]
Sitting One Out: Strategic Recusal on the Supreme Court
In a time of constitutional hardball, the Supreme Court’s quorum requirement raises the questions of how and whether a tactic of strategic recusal—or “sitting out”—can be effectively employed by a four-Justice minority and whether utilizing such a tactic would be appropriate. […]
The Quasi-Army: Law Enforcement, Value Judgments, & the Posse Comitatus Act
By unleashing military tactics and weapons onto American streets, police departments around the country are violating a value that traces its intellectual roots to the very founding of our country and which has been crystallized in statute for well over a century. […]
Watch Where You Walk: Law Enforcement Surveillance and Protester Privacy
Law enforcement has a responsibility to facilitate the rights of civilians, including the First Amendment right to peaceful protest—not to quash expression of those rights. Those who protest and advocate for equality and justice should not have to risk being the victim of the extensive reach of the state while merely exercising their constitutionally mandated rights. […]
Discriminatory Paycheck Protection
Deciding how and whom to protect during this crisis is a quintessentially political choice—among the most central of the current moment. But as these cases show, relief funding during a crisis not only can’t avoid First Amendment scrutiny—the newly expanded funding might actually be what prompts scrutiny of programs that previously spent decades flying under courts’ radar. […]
The Americans with Disabilities Act at Thirty
While the failures of the ADA have been many, its successes have been paradigm shifting. This commentary is meant to celebrate those suc-cesses, and to wish that paradigm shifting law a happy 30th birthday. […]
The Constitutional Challenges Awaiting Police Reform—and How Congress Can Try to Address Them Preemptively
As November elections loom, incumbents have responded to nationwide protests by advancing a panoply of police reform measures. Some of these proposals are gaining momentum. This Article addresses the constitutional challenges that await federal reform efforts by discussing three of the more popular proposals. […]