Clouded Precedent: Tandon v. Newsom and Its Implications for the Shadow Docket

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free Exercise Clause of the First Amendment. But Tandon also introduces an element of uncertainty. Will lower courts treat it as they would a merits decision, or will they apply it with caution, given its status as a shadow docket case?After reviewing the existing literature on the shadow docket and explaining the potential significance of Tandon, this Article examines the initial decisions that have grappled with the case. Noting that some judges have treated Tandon as a major shift in free-exercise law, while others have minimized or essentially ignored it, I suggest that in several respects Tandon is similar to Bush v. Gore, another per curiam opinion that some courts have been reluctant to apply as precedent. The experience of Tandon suggests that pronouncements in the Supreme Court’s shadow docket opinions do not produce the same level of consistency and legal certainty as those in merits opinions, providing further evidence for those arguing that the Court’s current shadow docket practices warrant reform

The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society.This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed

Going Concerns and Environmental Concerns: Mitigating Climate Change through Bankruptcy Reform

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate under Chapter 7 rather than reorganize under Chapter 11. These proposed reforms would also mandate the appointment of an environmental trustee and the consideration of the public interest during liquidation proceedings. The public interest would weigh in favor of reserving certain assets for climate remediation rather than selling them to other extractive firms on behalf of creditors.Anticipating the objection that climate policy is a non-bankruptcy matter that should accordingly be resolved outside of bankruptcy, I explore models for these proposals in existing insolvency law: the Securities Investor Protection Act, the history of reorganizations in the railroad industry, and the administration of mass tort cases. Under SIPA, stockbrokers are required to liquidate rather than reorganize to protect the investing public. In railroad bankruptcies, special trustees and judicial consideration of the public interest have long been required, primarily due to the historical significance of railroads to the U.S. economy. And the bankruptcy system has converted entities that caused mass torts into those that mitigate past harms. The special treatment of critical industries in bankruptcy to advance key societal goals, as proposed here, is thus consistent with existing law. This article concludes that bankruptcy reform has a role to play in addressing the climate emergency

Dual Allegiance: Federal and State Treason Prosecutions, the Treason Clause, and the Fourteenth Amendment

The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes contemporary state treason laws, showing that many, but not all, states have analogues to the Treason Clause in their own constitutions. The article focuses on those states that provide fewer protections for defendants accused of treason, or define treason more broadly than the federal Constitution, asking whether the Treason Clause should be incorporated against the states through the Fourteenth Amendment.While the doctrine of incorporation is normally applied to the Bill of Rights, I argue that the Treason Clause creates an individual right that is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Its similarities to the Bill of Rights with respect to its structure and purpose argue in favor of incorporation. I also consider whether treason remains relevant in the modern context, given the lack of recent significant treason prosecutions, concluding that it does

The Faithless Elector and 2016: Constitutional Uncertainty After the Election of Donald Trump

Presidential electors are generally expected to vote for the candidate who won their state\u27s election, and those who do not are referred to as faithless electors. A majority of states have laws of varying types that bind their electors to vote for the winning presidential candidate. The 2016 election, for the first time in modern history, produced a serious movement urging electors to cast faithless votes against Donald Trump. Although this movement was not successful, 2016 saw the most faithless electors in recent history by a large margin. Three separate, ultimately unsuccessful, lawsuits were filed by would-be faithless electors in an attempt to invalidate their states\u27 binding laws.This article reviews the history of and academic literature on faithless electors. It then surveys the elector binding laws that exist today and reviews the operation of these laws after the 2016 election. I find that deterrence-based statutes in different states (notably Colorado and Hawaii) produced inconsistent results, in part due to the discretion that state election officials had over these laws’ enforcement. This article concludes that such discretion is problematic, as it could be exercised according to the political preferences of partisan state officials

Clouded Precedent: Tandon v. Newsom and Its Implications for the Shadow Docket

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free Exercise Clause of the First Amendment. But Tandon also introduces an element of uncertainty. Will lower courts treat it as they would a merits decision, or will they apply it with caution, given its status as a shadow docket case?After reviewing the existing literature on the shadow docket and explaining the potential significance of Tandon, this Article examines the initial decisions that have grappled with the case. Noting that some judges have treated Tandon as a major shift in free-exercise law, while others have minimized or essentially ignored it, I suggest that in several respects Tandon is similar to Bush v. Gore, another per curiam opinion that some courts have been reluctant to apply as precedent. The experience of Tandon suggests that pronouncements in the Supreme Court’s shadow docket opinions do not produce the same level of consistency and legal certainty as those in merits opinions, providing further evidence for those arguing that the Court’s current shadow docket practices warrant reform

The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society.This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed

Dual Allegiance: Federal and State Treason Prosecutions, the Treason Clause, and the Fourteenth Amendment

The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes contemporary state treason laws, showing that many, but not all, states have analogues to the Treason Clause in their own constitutions. The article focuses on those states that provide fewer protections for defendants accused of treason, or define treason more broadly than the federal Constitution, asking whether the Treason Clause should be incorporated against the states through the Fourteenth Amendment.While the doctrine of incorporation is normally applied to the Bill of Rights, I argue that the Treason Clause creates an individual right that is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Its similarities to the Bill of Rights with respect to its structure and purpose argue in favor of incorporation. I also consider whether treason remains relevant in the modern context, given the lack of recent significant treason prosecutions, concluding that it does

Undue Hardship and Uninsured Americans: How Access to Healthcare Should Impact Student-Loan Discharge in Bankruptcy

Student-loan debt has grown to unprecedented heights. Contributing to the severe burden imposed by these debts is the Bankruptcy Code’s unique presumption that they are not dischargeable. To overcome that presumption, a debtor must establish that repayment of her loans would constitute an “undue hardship.” This Essay examines the disagreement among bankruptcy courts that have interpreted the “undue hardship” standard in situations where a debtor is unable to afford health insurance—a common occurrence among the economically disadvantaged. After examining recent healthcare reforms, I argue that Congress has expressed a judgment that all Americans should obtain minimum essential healthcare. Though this goal remains unrealized, it should inform courts’ “undue hardship” analysis, and debtors who cannot obtain healthcare while repaying loans should be entitled to a bankruptcy discharge. This reform has been made even more urgent by the economic disruptions and increased healthcare costs imposed by the ongoing COVID-19 pandemic