We\u27re Not Selling Ice Cream Here : PLCAA, the Predicate Exception, and Providing Relief for Plaintiffs

In 2005, the Protection of Lawful Commerce in Arms Act (“PLCAA”) put a stop to most civil litigation against the firearms industry. In the nineteen years since, victims of gun violence have attempted to bring claims against members of the firearms industry, with varying degrees of success, using an exception to PLCAA known as the predicate exception. Recently, states have begun to pass legislation creating a right of action for plaintiffs to take advantage of the predicate exception. Whether the new legislation will be successful, however, remains to be seen. This Note examines all of the available cases considering the predicate exception, revealing areas where the current regulatory framework fails plaintiffs and the distinguishing characteristics of successful cases. In light of this analysis, Part III discusses recent state legislation, identifies gaps in the legislation, identifies areas for improvement, and forecasts challenges to the legislation. The Appendix contains a chart organizing the cases that consider the predicate exception by whether they were successful and the predicate statute considered by the court in each case

Historical Analogy and the Role Morality of Reason-Giving

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen. The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of Bruen and more focused on the ethical implications of this type of reasoning. In sum, if the Supreme Court is going to decide constitutional cases through historical analogies, it should do so in a way that is functional as law and is intelligible to the three hundred million people for whom it rules. After outlining the role morality of reason-giving by judicial officers in our system of judicial review, this Essay provides an overview of the psychology of reasoning by analogy by both lawyers and lay persons and the role of generality, systematicity, and rules of relevance in constructing such analogies. It then identifies three hazards confronting courts attempting to apply Bruen’s analogical method: reliance on surface rather than structural similarities; analogs that lack any stable or discernable rule of relevance; and finally, use of analogs so unmoored from public intuition and experience that they appear unreasonable or contrived. Using Second Amendment litigation as an example, the Essay concludes by showing how the Court can articulate a system of analogical reasoning from history and tradition that avoids these pitfalls and is consonant with the role morality of judicial officers who must offer intelligible legal reasons for their decisions

Corporate Racial Responsibility

The 2020 mass protests in response to the deaths of George Floyd and Breonna Taylor had a significant impact on American corporations. Several large public companies pledged an estimated $50 billion to advancing racial equity and committed to various initiatives to internally improve diversity, equity, and inclusion. While many applauded corporations’ willingness to engage with racial issues, some considered it further evidence of corporate capitulation to extreme progressivism at shareholders’ expense. Others, while thinking corporate engagement was long overdue, critiqued corporate commitment as insincere. Drawing on historical evidence surrounding the passage of Title II of the Civil Rights Act of 1964, this Article engages with the debate on corporate “racial” responsibility to demonstrate that corporate engagement on race is not new. Indeed, during the struggle to desegregate public accommodations, corporate social responsibility was invoked to encourage voluntary desegregation and avoid federal intervention. Segregation was good business for some; for others, maintaining white supremacy justified any pecuniary losses. While this Article argues that corporations have a role to play in achieving racial equity, it cautions against reliance on corporate social responsibility to advance racial equality. Past and current iterations of corporate racial responsibility have often represented a market-fundamentalist, value-extractive approach to racial equity that reifies existing racial hierarchies. By valuing racial equity in terms of its potential profitability, corporate racial responsibility can subordinate human dignity to wealth maximization. This Article argues for a more meaningful corporate racial responsibility that addresses the structures and laws undergirding racial inequities within corporations and our larger society

A Fireside Chat with Hon. Kate Heinzelman

Speaker: Hon. Kate Heinzelman, General Counsel, Central Intelligence Agenc

Barcoding Bodies: RFID Technology and the Perils of E-Carceration

Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment

Blight Made Right: Defects in State Condemnation Laws and a Roadmap for Reform in Alaska and Beyond

Susette Kelo\u27s old house in New London, Connecticut is long gone, as is the entire Fort Trumbull neighborhood that once surrounded it. In 2005, the U.S. Supreme Court decided a case—Kelo v. City of New London—that cost her and her neighbors their homes and sparked a wave of state-level reforms to mitigate its potential damage to private property. In Kelo, the Court held that economic development as a public purpose was also a legitimate public use under the Fifth Amendment\u27s Takings Clause, which provides nor shall private property be taken for public use, without just compensation. As Justice Clarence Thomas noted in his dissent: If such \u27economic development\u27 takings are for a \u27public use,\u27 any taking is, and the Court has erased the Public Use Clause from our Constitution. The risks to private property this approach presents are at their greatest when governments stretch the meaning of blight to essentially cover anything that impedes public progress, whatever lawmakers themselves conceive that to be. This Article discusses the last roughly two decades of public-use jurisprudence and places Alaska\u27s response to Kelo in conversation with other states\u27. In places like New York, Arkansas, and Massachusetts, Kelo and other Supreme Court precedents have together swung state-level precedent on the topic too far in government\u27s favor. There, owners largely bear the burden of proving that the government has no good (or even decent) reason for condemning their properties. On the other end of the spectrum, states including Florida and Michigan have read public use much more narrowly—and in a manner that far more closely reflects the original public meaning of the Takings Clause. The piece concludes with an exploration of recent efforts to expand the definition of blight in Alaska, and a discussion of judicial and popular means of protecting the status quo—or better yet improving upon it—in the fortunate event that Alaska\u27s legislature does not redefine blight, as some lawmakers have threatened in the recent past