Residual Impact: Resentencing Implications of Johnson’s Potential Ruling on ACCA’s Constitutionality
By: Leah M. Litman
In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years in the making: The Supreme Court has had to resolve numerous circuit splits over whether various state criminal convictions qualify as prior convictions for violent felonies under the Armed Career Criminal Act (ACCA), and Justice Scalia has been calling for the Court to invalidate the residual clause for the last few years.
By: Stephen M. Bainbridge
When any Chief Justice of the Delaware Supreme Court speaks on a corporate law topic, lawyers and academics who toil in that doctrinal vineyard listen. When that Chief Justice is Leo Strine, they listen especially closely. The “well-respected” Chief Justice after all is the “[w]underkind of U.S. corporate law” and has been “recognized among academics, practitioners, and other judges” as an “intellectual leader” of the Delaware judiciary. Yet, even mighty Homer nods occasionally.
Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally
By: Erin Ryan
This Essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution. In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. Building on his previous structural-governance research, he argues that constitutional ambiguities in the horizontal allocation of power are best resolved through legislative–executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal actors in the vertical-federalism context.
By: Larry Alexander
I have argued that a speaker’s mental state with respect to whether her words will cause harms that the government can legitimately seek to prevent should be immaterial to whether her speech is protected by the First Amendment—except to the extent her mental state bears on whether sanctioning her will chill others’ protectable speech. Recently, Professor Leslie Kendrick has taken issue with my position and the similar position of others. She argues that the speaker’s mens rea regarding the harmfulness of her speech affects the First Amendment protectability of her speech apart from chilling-effect concerns. The speaker’s mental state matters, not only for purposes of criminal law and tort law, but for free-speech law as well, and intrinsically rather than instrumentally. Although I accept the compliment of serving as one of her principal foils, I nonetheless continue to disagree with Professor Kendrick’s position.
By: Jared A. Ellias
Baird and Casey recently argued in favor of contractual innovations that allow lenders to contract around bankruptcy law. These innovations, which they call withdrawal rights, are said to increase the efficiency of financing in many cases, and Baird and Casey urge judges to enforce them. This brief Essay uses a case study of a Chapter 11 bankruptcy where withdrawal rights were enforced by operation of foreign law to challenge Baird and Casey’s assumptions.