Recent Articles in Volume 76, Issue 4 (2023)
By Robert E. Wagner – The current majority of the Supreme Court has significantly increased access to firearms. In last year’s New York State Rifle & Pistol Association v. Bruen decision, the majority curtailed legislative options for protecting U.S. citizens from the danger presented by unfettered access to life-threatening weapons. The majority refused to acknowledge the danger inherent in firearms and the substantive difference in function between an antique flintlock and an AK-47. The Court’s refusal to consider the change that technology has brought to firearm capabilities has resulted in a dramatically reduced ability for any legislation to address the danger of firearms in a constructive manner. [...]
The Trilogy of Personal Jurisdiction and the Importance of Ford
By Jonathan M. Hoffman, Michaela Cloutier, and Jason Proctor – Litigants and judges alike have struggled to understand and resolve the parameters of personal jurisdiction, particularly in product liability cases. This results in significant costs and time which is likely to be of little benefit to anyone. Much of this confusion arises from two problems: (1) most of the early Supreme Court decisions on personal jurisdiction arose from contractual disputes; and (2) when the economy expanded after World War II, and new automobiles, commercial aircraft, appliances, and other complex products appeared, the Court’s attempts to resolve personal jurisdiction issues were unsuccessful. For over three decades, the Supreme Court failed to produce a clear majority opinion, while at the same time, these cases were becoming more common and complex. [...]
State Constitutional Rights, State Courts, and the Future of Substantive Due Process Protections
By Jonathan L. Mashfield – By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. [...]
By Zachary R. Cormier – The recent onset of the “fake news” era has brought with it a wave of public discussion about the importance of ethical journalism. The sheer volume of misinformation from non-traditional online sources has had the corollary effect of also reducing the trust of many in traditional news sources. This is especially the case when the report involves alleged misconduct or scandal, which stands to potentially benefit opponents of the subject person or organization. Traditional news sources have fought vigorously to both differentiate “fake news” and reinstate public trust in sources committed to ethical journalism. But what exactly is “ethical journalism”? Do recognized legal protections relating to free speech and free press rights at all encourage ethical journalism over tactics used by those peddling fake news? [...]
Failures in the “Laboratories of Democracy” and Democratic Due Process as Constitutional Guardrails
By Matthew C. Clifford and F. Paul Bland, Jr. – In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent supporting a substantive due process right to abortion under the Fourteenth Amendment, and purported to return the question of reproductive autonomy to the “democratic process” in the states. Justice Thomas, writing in concurrence, militated for reconsidering all of the Court’s substantive due process precedents. In today’s era of democratic backsliding, these are dangerous pronouncements with grave, if not existential, implications for democracy in the United States. The Dobbs majority hazardously asserted that state-level abortion legislation would, in fact, be the result of a democratic process. Further, because the law of democracy draws extensively from substantive due process, including where the Fourteenth Amendment “incorporates” textually enumerated constitutional rights against the states, the broader threat to substantive due process in the Dobbs majority opinion and Justice Thomas’s concurrence is also a direct threat to democracy itself. [...]