Military Justice: The Forgotten Jurisdiction in Capital Punishment

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. This is particularly concerning for the military because the demographics of its jury pool are predominantly white male. The purported need for deviations from the Sixth Amendment right to trial by jury and deference to the military system in order to preserve discipline is undercut by the history of jurisdiction for murder in peacetime. The military has not historically had jurisdiction over murder in peacetime for the majority of this country’s history. These concerns of non-representative courts-martial, coupled with the need for heightened reliability in capital cases, warrant a change to Article 118 (the crime of murder) to only allow capital courts-martial for murder if there is a nexus to war or armed conflict

Sentencing Insurrection

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them. On demographics, the data suggest that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America. On punishment, the aggregate results are notable for their leniency. The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases. Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length. This Article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge. Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction. Finally, this Article posits three alternative narratives supported by the data. One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing. Another is judicial corrective to prosecutorial overreach. A third centers the role of politics, demographics, and bias in the administration of criminal justice

Crimes Without Law: Administrative Crimes and the Nondelegation Doctrine

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine. This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and property— required greater statutory specificity to regulate than public rights. Private rights thus restrain Congress from delegating carte blanche authority to agencies to criminalize conduct because the statute authorizing such a delegation will necessarily lack specificity. A criminal statute cannot concomitantly entail statutory specificity and delegate necessary details— such as the actus reus—to the Executive Branch. Unsurprisingly, the Founding Era historical record reflects a dearth of legislative delegations to write criminal law. This lack of evidence is expected. Administrative crimes would have enabled the Executive Branch to unilaterally regulate the core private right to liberty, and often the private right to life, given the proportion of federal offenses that were capital offenses. Nevertheless, the absence of criminal law delegations need not present dispositive evidence that a categorical prohibition on such delegations existed. However, if a compelling originalist argument exists for the nondelegation doctrine, it must account for the private/public rights distinction that permeated Founding Era legal practices. The contemporary practice of administrative crimes departs from the original meaning of legislative power. Congress increasingly delegates legislative authority to administrative agencies to determine whether and how particular statutes will create federal offenses. Most—if not all— delegations that enable administrative agencies to unilaterally create administrative crimes will lack statutory specificity. This practice conflicts with the originalist private/public rights taxonomy. But it also remains in tension with fundamental principles of Anglo-American criminal jurisprudence—including nullum crimen sine lege, the rule of lenity, the void-for-vagueness doctrine, and the prohibition on federal criminal common law

Not Colorblind

This Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions v. Presidents and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness that the not-colorblind attacks on DEI seek to install

Police Misconduct: Combatting the Complicity Crisis

This Comment explores the current state of police reform in the city of Chicago, with a special focus on the various oversight agencies currently in force. Chicago has a long history of police misconduct, and the city has tried to make changes over the years to restore the community’s trust in policing. The police reform movement became especially prevalent in recent years following the fatal shooting of Laquan McDonald by a Chicago Police Officer in 2014. This Comment will show why the current mechanisms in place are insufficient to bring the needed change to the Chicago Police Department, and that the Chicago Police Department has shown time and time again they are unable to police themselves. While there have been some effective changes to the city’s policing efforts in recent years, considerable room for improvement remains. This Comment will evaluate some of the recent measures taken to change the Chicago Police Department, specifically looking at measures targeted at changing the culture of the Chicago Police Department by increasing transparency and accountability. These measures include mandatory body-camera footage and a ban on officers being affiliated with extremist groups. This Comment will explore and evaluate the effectiveness of these changes and how they could be further enhanced. This Comment will also propose additional solutions that Chicago could consider to increase police accountability and transparency and thus improve overall officer performance. This includes using more objective tools to measure police officers’ day to day performance, which can be done using tools similar to those being used in New Orleans and in Miami. This Comment will conclude with additional policy considerations and measures for enforcement, specifically focusing on ways to incentivize more responsible policing

(The Lack of) Fan Fiction Litigation: Why Do Creators Refrain from Suit?

This Note explores the status of contemporary fan fiction under United States copyright law. It begins by tracing the historical development of fan fiction and then examines fan fiction’s legal treatment in the internet age, with a focus on the potential application of the fair use doctrine. It surveys relevant case law and considers the notable absence of litigation by content creators against fan fiction authors. Finally, it offers a number of possible explanations for this reluctance to pursue legal action

Against Monetary Primacy

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has remained unchallenged by either political party and largely ignored by legal scholars. This Article exposes monetary primacy’s incoherence and proposes an alternative framework that relegates interest rate hikes to a supporting role in the fight against inflation. Governments possess other policy tools for controlling inflation that are better situated to lead. Examples include supply-side reforms to sectors facing bottlenecks, tighter fiscal policy, and more vigilant antitrust and consumer law enforcement. Between 2021 and 2023, the United States deployed many of these tools, albeit not necessarily motivated by inflation concerns. And while the Fed has received much attention for lowering inflation during this period, it likely had limited impact. Thus, our framework has descriptive power for the astonishing recent success in moderating excess inflation without causing a recession. That reality has, however, been missed—increasing the chances that the Fed keeps rates too high as the economy slows. Instead of monetary primacy, the Fed should set interest rates at a level that is best for long-term employment and price stability, known as the “natural” rate of interest. If inflation remains too high when interest rates equal the natural rate, then the Fed, the Executive Branch, and Congress should compare the sacrifice associated with raising interest rates above their natural rate to the alternative policy tools and choose the least costly option. We assert that, in many but not all cases, the preferred option will not be elevated interest rates, and we propose reforms to enable other institutions to respond effectively to inflation alongside the Fed. This proposal would shift U.S. policy from monetary primacy to macroeconomic pluralism, which means leveraging an array of economically beneficial (or at least less harmful) tools. In both the short term and the long term, moving away from monetary primacy will help increase the chances of conquering inflation, avoiding a recession, and expanding economic opportunity

Constitutional Futurisms

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass\u27n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United States. In Students for Fair Admissions v. Harvard, the Court instead relies on an ahistorical framing of equal protection as colorblindness. This selective history ignores both the social context of cases such as Plessy v. Ferguson and Brown v. Board of Education, and the conceptual origins of affirmative action itself. This results in a vision of a colorblind present and future that is silently constrained and controlled by racisms of the past. Building on Professor Bennett Capers’s work on Afrofuturism and Professor Paul Gowder’s Constitutional Sankofa, I advance a new, futurist methodology of constitutional interpretation—one that incorporates a plurality of histories and traditions, and imagines alternative futures of race and the law