Volume 70, Number 6 – March 2021

Articles

The Youngstown Canon: Vetoed Bills and the Separation of Powers
Kristen E. Eichensehr
PDF

As presidents make ever more expansive claims of executive power, Congress’s ability and willingness to counter the executive is often limited. That makes all the more significant instances when Congress does overcome structural and political challenges to pass legislation to rein in the president. But thanks to the Supreme Court’s invalidation of legislative vetoes in INS v. Chadha, such congressional actions are necessarily subject to presidential veto. President Donald Trump, for example, vetoed joint resolutions aimed at restraining executive action relating to the border wall and war powers. Although vetoed bills are not binding law, this Article argues that neither are they legal nullities; instead, judges, executive branch lawyers, and other interpreters can use majoritarian congressional opposition to the executive as an interpretive tool. The result is a novel “Youngstown canon of construction”: when Congress passes a bill or resolution by a majority of both houses and the president exercises the veto, preventing the act from becoming law, then the expressed congressional opposition to the president’s view should be used to narrowly construe the underlying statutory or constitutional authority the president is claiming, if that authority is ambiguous. The proposed canon would help to counteract overbroad claims of executive power in important areas such as war powers, the National Emergencies Act, treaty termination, and the scope of federal preemption of state laws.

Criminalizing Coercive Control Within the Limits of Due Process
Erin Sheley
PDF

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” on their “day-to-day activities.” Such a vaguely drafted criminal statute would raise insurmountable due process problems under the U.S. Constitution.

Should the states wish to address the gravity of the harms of coercive control, however, this Article proposes an alternative statutory approach. It argues that a state legislature could combine the due process limits of traditionally enterprise-related offenses such as fraud and conspiracy with the goals of domestic abuse prevention to create a new offense based upon the fraud-like nature of coercively controlling behavior. It argues that the most useful legal framework for defining coercive control is similar to that of common law fraud, and that legislatures should adapt the scienter requirements of fraud to the actus reus of coercive control. In so doing, this Article also argues that it is risky for legislatures to punish gender-correlated offenses with specialized legal solutions, rather than recognizing the interrelationship between such offenses and other well-established crimes.

2020 David L. Lange Lecture in Intellectual Property

The Splinternet
Mark A. Lemley
PDF

Notes

Time to Reload: The Harms of the Federal Felon-in-Possession Ban in a Post-Heller World
Zach Sherwood
PDF

Federal law permanently prohibits anyone who has been convicted of a felony from possessing a firearm. Keeping lethal weapons out of the hands of those who pose a risk to public safety is no doubt a worthy policy goal. But the federal felon-in-possession ban is blunt, punitive, and supremely damaging to the ex-felons who fall within its ambit. The statute’s sweeping scope ensures that any ex-felon who possesses any firearm for any length of time for any reason can be swiftly and harshly punished. And it indiscriminately targets conduct that is often neither harmful nor criminal.

The felon-in-possession ban gained constitutional significance following the Supreme Court’s landmark decision in District of Columbia v. Heller. The Heller Court recognized for the first time an individual Second Amendment right to possess a firearm for self-defense in the home. Yet by imposing substantial criminal liability on any form of firearm possession by an ex-felon, the felon-in-possession ban categorically strips a sizable portion of Americans of this very same right.

This Note argues that it is high time to rethink the federal felon-in-possession ban’s role in a post-Heller world. It argues that the statute’s expansive reach is poorly tailored to addressing gun violence and highlights the weak doctrinal foundation on which the felon-in-possession ban is built. But this Note goes further than most existing scholarship by also examining the tangible, on-the-ground harms that the felon-in-possession ban inflicts on ex-felons and their communities—from needlessly complicating ex-felons’ reintegration into society, to burdening the Second Amendment rights of nonfelon family members, to effectively disarming large swaths of communities of color. Change is needed, and this Note recommends statutory reforms and constitutional challenges that would circumscribe the felon-in-possession ban’s scope.

The Constitution and the Campaign Trail: When Political Action Becomes State Action
Lauren N. Smith
PDF

Constitutional law often splits society into two realms: public and private. A person’s constitutional rights and obligations depend on her classification into one of these realms. Almost all constitutional rights are only protected against encroachment by the state, and thus whether an action constitutes private or state action is incredibly significant. However, the body of law that governs this determination—the state action doctrine—is notoriously muddled.

The longstanding assumption is that political candidates and their campaigns are private actors, though the Court has on occasion, such as in the “white primary” cases, held that action by political parties constitutes state action. However, in recent years, the focus of electioneering has shifted away from political parties, and the democratic process has become far more candidate centric. At the same time, actions that might violate the Constitution if they were carried out by a state actor, such as the removal of protestors from campaign rallies and the rescission of press credentials for campaign events, have become widely publicized. In light of these developments, this Note argues that it is time to consider whether a candidate’s actions should now be considered state action for purposes of constitutional tort claims. By combining elements from the Supreme Court’s many formulations of the state action doctrine and invoking the logic behind the cases in which the Court found state action by political parties, this Note proposes a framework for assessing whether a candidate and her campaign’s conduct on the campaign trail should be considered state action.

Volume 70, Number 6 – March 2021

Articles

The Youngstown Canon: Vetoed Bills and the Separation of Powers
Kristen E. Eichensehr
PDF

As presidents make ever more expansive claims of executive power, Congress’s ability and willingness to counter the executive is often limited. That makes all the more significant instances when Congress does overcome structural and political challenges to pass legislation to rein in the president. But thanks to the Supreme Court’s invalidation of legislative vetoes in INS v. Chadha, such congressional actions are necessarily subject to presidential veto. President Donald Trump, for example, vetoed joint resolutions aimed at restraining executive action relating to the border wall and war powers. Although vetoed bills are not binding law, this Article argues that neither are they legal nullities; instead, judges, executive branch lawyers, and other interpreters can use majoritarian congressional opposition to the executive as an interpretive tool. The result is a novel “Youngstown canon of construction”: when Congress passes a bill or resolution by a majority of both houses and the president exercises the veto, preventing the act from becoming law, then the expressed congressional opposition to the president’s view should be used to narrowly construe the underlying statutory or constitutional authority the president is claiming, if that authority is ambiguous. The proposed canon would help to counteract overbroad claims of executive power in important areas such as war powers, the National Emergencies Act, treaty termination, and the scope of federal preemption of state laws.

Criminalizing Coercive Control Within the Limits of Due Process
Erin Sheley
PDF

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” on their “day-to-day activities.” Such a vaguely drafted criminal statute would raise insurmountable due process problems under the U.S. Constitution.

Should the states wish to address the gravity of the harms of coercive control, however, this Article proposes an alternative statutory approach. It argues that a state legislature could combine the due process limits of traditionally enterprise-related offenses such as fraud and conspiracy with the goals of domestic abuse prevention to create a new offense based upon the fraud-like nature of coercively controlling behavior. It argues that the most useful legal framework for defining coercive control is similar to that of common law fraud, and that legislatures should adapt the scienter requirements of fraud to the actus reus of coercive control. In so doing, this Article also argues that it is risky for legislatures to punish gender-correlated offenses with specialized legal solutions, rather than recognizing the interrelationship between such offenses and other well-established crimes.

2020 David L. Lange Lecture in Intellectual Property

The Splinternet
Mark A. Lemley
PDF

Notes

Time to Reload: The Harms of the Federal Felon-in-Possession Ban in a Post-Heller World
Zach Sherwood
PDF

Federal law permanently prohibits anyone who has been convicted of a felony from possessing a firearm. Keeping lethal weapons out of the hands of those who pose a risk to public safety is no doubt a worthy policy goal. But the federal felon-in-possession ban is blunt, punitive, and supremely damaging to the ex-felons who fall within its ambit. The statute’s sweeping scope ensures that any ex-felon who possesses any firearm for any length of time for any reason can be swiftly and harshly punished. And it indiscriminately targets conduct that is often neither harmful nor criminal.

The felon-in-possession ban gained constitutional significance following the Supreme Court’s landmark decision in District of Columbia v. Heller. The Heller Court recognized for the first time an individual Second Amendment right to possess a firearm for self-defense in the home. Yet by imposing substantial criminal liability on any form of firearm possession by an ex-felon, the felon-in-possession ban categorically strips a sizable portion of Americans of this very same right.

This Note argues that it is high time to rethink the federal felon-in-possession ban’s role in a post-Heller world. It argues that the statute’s expansive reach is poorly tailored to addressing gun violence and highlights the weak doctrinal foundation on which the felon-in-possession ban is built. But this Note goes further than most existing scholarship by also examining the tangible, on-the-ground harms that the felon-in-possession ban inflicts on ex-felons and their communities—from needlessly complicating ex-felons’ reintegration into society, to burdening the Second Amendment rights of nonfelon family members, to effectively disarming large swaths of communities of color. Change is needed, and this Note recommends statutory reforms and constitutional challenges that would circumscribe the felon-in-possession ban’s scope.

The Constitution and the Campaign Trail: When Political Action Becomes State Action
Lauren N. Smith
PDF

Constitutional law often splits society into two realms: public and private. A person’s constitutional rights and obligations depend on her classification into one of these realms. Almost all constitutional rights are only protected against encroachment by the state, and thus whether an action constitutes private or state action is incredibly significant. However, the body of law that governs this determination—the state action doctrine—is notoriously muddled.

The longstanding assumption is that political candidates and their campaigns are private actors, though the Court has on occasion, such as in the “white primary” cases, held that action by political parties constitutes state action. However, in recent years, the focus of electioneering has shifted away from political parties, and the democratic process has become far more candidate centric. At the same time, actions that might violate the Constitution if they were carried out by a state actor, such as the removal of protestors from campaign rallies and the rescission of press credentials for campaign events, have become widely publicized. In light of these developments, this Note argues that it is time to consider whether a candidate’s actions should now be considered state action for purposes of constitutional tort claims. By combining elements from the Supreme Court’s many formulations of the state action doctrine and invoking the logic behind the cases in which the Court found state action by political parties, this Note proposes a framework for assessing whether a candidate and her campaign’s conduct on the campaign trail should be considered state action.