\u3cem\u3eNYSRPA v. Bruen\u3c/em\u3e and the Future of the Sensitive Places Doctrine: Rejecting the Ahistorical Government Security Approach

On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since Heller, state and federal courts have upheld firearms restrictions in a number of locations under the sensitive places doctrine. However, in anticipation of a wave of sensitive places litigation following the Bruen decision, several conservative scholars now seek to limit the doctrine to only those locations protected by strict government security measures, such as metal detectors and security guards. This article demonstrates that such an approach is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller

Safe Injection Facilities: Reconsidering American Drug Policy

On January 12, 2021, in United States v. Safehouse, the U.S. Court of Appeals for the Third Circuit held that supervised injection facilities—sites where medical professionals monitor injection drug use—violate the Crack House Statute. The legality of supervised injection facilities was a matter of first impression at the circuit level. Research shows that supervised injection facilities reduce overdose deaths and the spread of infection and are important harm reduction measures for combatting the opioid epidemic. The Third Circuit held that these programs violate the Crack House Statute, 21 U.S.C. § 856(a)(2), because they act with the statutorily proscribed purpose of drug use. Within its opinion, the Third Circuit noted that the word “purpose” in the provision pertains to the drug users. The Third Circuit’s determination that the statute does not require the property managers to hold an illicit purpose conflicted with the U.S. District Court for the Eastern District of Pennsylvania’s opinion, which found supervised injection facilities to be legal. This Note maintains that the Third Circuit erred in concluding that “purpose” refers to the drug users and argues that it instead modifies the site operator. This Note further argues that American drug law is inapposite to treating and ending the opioid epidemic. Thus, this Note concludes by calling on Congress to incorporate addiction research findings into future drug policy

Scratching the 8-Ball : The Fourth Circuit\u27s Approach to the First Step Act Misses the Mark

On March 9, 2021, in United States v. Lancaster, the United States Court of Appeals for the Fourth Circuit held that a district court ruling on a First Step Act motion must consider intervening factual and legal developments when deciding whether to resentence an offender under the Act. In doing so, the Fourth Circuit exacerbated a circuit split regarding the proper scope of the First Step Act. Four circuits, led by the United States Court of Appeals for the Fifth Circuit, have taken the opposite position and do not allow their district courts to consider intervening circumstances at all. The United States Courts of Appeals for the First, Second, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, on the other hand, allow their district courts to consider intervening circumstances but do not require them to do so. Within the latter group, the First Circuit created a two-step framework for ruling on a First Step Act motion where a district court may not consider intervening circumstances when deciding whether to resentence but may do so when actually resentencing. This Comment argues that the Fourth Circuit incorrectly expanded the First Step Act’s scope of relief in United States v. Lancaster because it did not properly balance the Act’s statutory text with the Act’s discretionary grant. Additionally, this Comment argues that the Supreme Court should adopt the First Circuit’s two-step framework because that approach best realizes Congress’s intent within the Act’s textual limitations

The End of Purposeful Discrimination: The Shift to an Objective \u3cem\u3eBatson\u3c/em\u3e Standard

In Batson v. Kentucky, the U.S. Supreme Court instituted a three-step analysis to prohibit the discriminatory use of peremptory challenges in jury selection. Many courts and advocates have criticized that analysis as confusing, ineffective, and impervious to implicit discrimination. As a result, courts have modified the Batson analysis many times in its thirty-year history. Since 2018, however, numerous state courts adopted a reformed Batson standard that fundamentally changes the use of peremptory challenges. Most significantly, the rule lowers the prima facie showing of discrimination at step one, lists “presumptively invalid” justifications for challenges at step two, and requires courts to determine only if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge” at step three. Other state courts are using jury selection task forces to consider if they should adopt the objective Batson standard in their jurisdiction. This Note analyzes the recent Batson reforms in Washington, California, and Connecticut, the earliest states to adopt a version of the objective Batson standard, and argues that, despite the efficacy of the objective observer standard in eliminating some discriminatory challenges, it poses significant burdens on litigants, courts, and communities at large. As an alternative to that standard, this Note concludes that jurisdictions should instead abolish the use of peremptory challenges outright and engage in comprehensive jury reform, including public jury selection databases, more precise juror summoning, and targeted juror outreach and education efforts to systemically underrepresented communities

Michael Perry\u27s Integrative Political Visioin

My purpose in the Essay is to explore the integrative nature of Perry’s writings. Perry’s work highlights and acknowledges the communally informed moral-political judgments that are at stake in Fourteenth Amendment jurisprudence. Perry’s ability to draw on different sources and perspectives allows him to cut across rigid jurisprudential and ideological lines in his approach to constitutional controversies, such as abortion and same-sex marriage. In so doing, he may be able to reach the significant portion of Americans in the political and moral middle who do not line up fully behind either side in the culture wars

All Work and No Pay: The Massachusetts Overtime Statute and Its Agricultural Exemption

At the federal and state level, overtime statutes often contain agricultural exemptions. These exemptions do not require farm owners to pay statutorily mandated overtime compensation to farmworkers who work more than the prescribed workweek. In 1960, the Massachusetts legislature enacted its overtime statute, chapter 151, section 1A of the Massachusetts General Laws, containing an agricultural exemption, as part of a larger remedial response to the Fair Labor Standards Act. In 2019, the Massachusetts Supreme Judicial Court in Arias-Villano v. Chang & Sons Enterprises, Inc. limited the agricultural exemption to only those farmworkers working in harvesting, but not those working in post-harvesting. Following the decision, the Massachusetts Department of Labor Standards issued an advisory in March 2020 that eroded farmworker protections by expanding the agricultural exemption beyond the limits established in Chang & Sons. Most recently, in 2021, the Fairness for Farmworkers Coalition introduced the Fairness for Farmworkers Act to abolish the agricultural exemption. This Note discusses the legislative intent of Massachusetts’s chapter 151, section 1A and the implications of the recent advisory. Additionally, this Note reviews the current landscape of state-level agricultural exemptions, particularly New York’s newly enacted Farm Laborers Fair Labor Practices Act (FLFLPA). Using the FLFLPA as a reference point, this Note argues that the Massachusetts legislature should adopt the Fairness to Farmworkers Act and abolish the agricultural exemption to better protect farmworkers

Whose Electors? Our Electors! : Due Process as a Safeguard Against Legislative Direct Appointment of Presidential Electors After an Election

Prior to the 2020 general election, some commentators suggested that President Donald Trump and his allies would attempt to undermine the election’s result by inducing Republican-controlled state legislatures to directly appoint pro-Trump electors to the Electoral College. As predicted, after losing his re-election bid to President Joe Biden, President Trump pressured some leaders in Republican-dominated state legislatures to ignore the election’s result and to appoint electors who would vote for him in the Electoral College. Although these efforts were unsuccessful, the volatility of the current political landscape suggests that this issue might emerge again in a future election. In discussing possible safeguards against such an attempt, many commentators have focused on the Electoral Count Act and other legal measures. Most, however, have not addressed the possibility of a constitutional safeguard. This Note uses the 2020 presidential election as a case study and argues that the Due Process Clause of the Fourteenth Amendment provides a constitutional safeguard that can restrain states from overturning election results through direct appointment of presidential electors

Sovereign Immunity or: How the Federal Government Learned to Stop Worrying and Love the Discretionary Function Exception

The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U.S. Constitution. The Eleventh Circuit agreed with the Seventh Circuit and declined to permit a constitutional claims exclusion. In contrast, the First, Eighth, Ninth, and D.C. Circuits have each held that the discretionary function exception does not shield the United States from liability where the conduct at issue allegedly violates the Constitution. This Comment argues that the minority approach is correct because sovereign immunity doctrine indicates that courts should read any exception narrowly in favor of the federal government

Procedural Pitfalls: The Eleventh Circuit Holds That the Sentencing Commission’s Policy Statement on Sentence Reduction is Binding on Defendant-Filed Motions

On May 7, 2021, in United States v. Bryant, the United States Court of Appeals for the Eleventh Circuit held that the U.S. Sentencing Commission’s policy statement in Section 1B1.13 of the U.S. Sentencing Guidelines binds defendant-filed motions for compassionate release. In its Application Notes, the policy statement provides four “extraordinary and compelling circumstances” that warrant a sentence reduction. Application Note 1(D) is the “catch-all provision” because it states that judges may grant compassionate release for “other reasons” not specifically listed in the preceding Application Notes. Application Note 1(D) states that the Director of the Bureau of Prisons (BOP) defines all “other reasons” under the catch-all provision that qualify an inmate for compassionate release. Before 2018, only the Director of the BOP could file compassionate release motions under 18 U.S.C. § 3582(c)(1)(A). The First Step Act of 2018 amended the statute to allow defendants to file motions too. Because the policy statement still begins with the phrase “upon motion of the Director of the BOP,” courts have since questioned whether it also applies to defendant-filed motions. In a departure from the holdings of the United States Court of Appeals for the Third, Fourth, Fifth, Sixth, Seventh, Ninth and D.C. Circuits, the Eleventh Circuit decided that the policy statement and its corresponding Application Notes apply to defendant-filed motions for compassionate release. Under this interpretation, only the BOP defines the “other reasons” that warrant compassionate release pursuant to Application Note 1(D). This Comment argues that the Eleventh Circuit was incorrect in its interpretation because it disregarded the plain text of the policy statement and erroneously considered the legislative intent of a different statute