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March 6, 2017

The Public Defender’s Pin: Untangling Free Speech Regulation in the Courtroom

In this Essay, Professor Kagan asserts that recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But, Kagan argues, it would go too far suggest that free speech has no relevance in courtrooms. This Essay argues for a way to strike a balance.

February 18, 2017

Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections

In this essay, Professor Morley explains that states generally conduct their elections in a “unitary” manner, applying many of the same rules, requirements, and procedures to races for offices at all levels of government. Morley argues that the unitary status of American elections has evolved into a convention: a principle that people expect to limit government officials’ discretion, despite not being constitutionally required. A few states have begun to challenge the convention of unitary elections. They have engaged in uncooperative federalism by imposing different rules for state and local elections than federal law establishes for federal races. Morley concludes that, while such changes constitute a sharp break from states’ consistent practice over the past decades, they are a valid exercise of states’ constitutional prerogatives. Congress’ authority over state and local elections, Morley demonstrates, is far narrower than its virtually plenary power over congressional and presidential elections. States therefore have discretion to protect the integrity of their state and local elections by imposing safeguards and requirements beyond those Congress has chosen to establish for federal elections.

January 17, 2017

After Flint: Environmental Justice As Equal Protection

In this essay, Professors Dana and Tuerkheimer conceptualize Flint as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.

December 15, 2016

Conversation with Professor Aaron Nielson on All Things AdLaw

Take a listen to our conversation with BYU Law Professor Aaron Nielson on his recent administrative law scholarship.