After decades of struggle with paper discovery rules in an age of electronic discovery, President George W. Bush signed Federal Rule of Evidence 502 into law on September 19, 2008. Rule 502 is aimed at reducing the costs associated with privilege review. More specifically, Rule 502 gives more judicial support for nonwaiver agreements, which are agreements between adversarial parties that preserve...
Narrowing the Definition of “Dwelling” Under the Fair Housing Act
The Fair Housing Act was enacted in order to protect certain groups against discrimination in housing. The Act extends this protection to any “dwelling,” but its coverage is not well defined for nontraditional sleeping facilities such as homeless shelters, substance abuse treatment facilities, or tent cities. Courts have applied the Fair Housing Act to any residence—defined by one court as “a...
Addressing Youth Bias Crime
Bias crime statistics legislation does not require law enforcement agencies to collect data on the ages of bias crime perpetrators, and bias crime penalty enhancements do not distinguish between youth and adult offenders. As a result, little data exists on youth bias crime, and the consequences of applying bias crime penalty enhancements to adult and youth offenders are generally the same:...
Heller's Catch-22
Joseph Heller’s satire Catch-22 has become a classic for its revealing look at the illogic, inconsistency, and circular reasoning common in modern bureaucratic life. This Article uses Heller’s novel to frame a critical analysis of the recent landmark Second Amendment decision of the U.S. Supreme Court that carries the Catch-22 author’s surname, District of Columbia v. Heller. The majority opinion...
Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda
How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights. Rather, courts should separately consider four different...
Permissible Gun Regulations After Heller: Speculations About Method and Outcomes
This Essay speculates about the substance and timing of likely decisions by lower courts and the Supreme Court in dealing with issues left open by District of Columbia v. Heller. It suggests that lower courts will not address those issues by examining original understandings regarding permissible gun regulations, but will instead apply to such regulations something like an intermediate standard...
Heller & Originalism’s Dead Hand — In Theory and Practice
This Article considers whether and how originalism promotes the Constitution’s democratic legitimacy, in theory and in practice. In the late twentieth century, critics of the Warren and Burger courts argued that judicial review lacks democratic authority when judges depart from the original understanding of those who ratified the Constitution. Originalism’s critics objected that giving past...
The Right to Know: An Approach to Gun Licenses and Public Access to Government Records
Every state has passed laws, often called open records statutes or freedom of information acts, that provide for disclosure of certain information possessed by government agencies. But how does a state legislature decide which information should be subject to disclosure? Is there a discernable pattern in the types of records available to the public? Using concealed carry licenses as the main...