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Muted Justice

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The Chief Justice of the United States possesses significant power. His position as the senior-most Justice on the U.S. Supreme Court allows him to assign opinions to other Justices and to coordinate scheduling the Court’s cases for argument. And after Justice Kennedy retired in June 2018, Chief Justice Roberts was the median Justice on the Court, whose vote often determined the outcome in a case. Even after Justice Barrett’s confirmation changed that state of affairs, the Chief remains an important Justice to watch.

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Precedent on Precedent

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In the recent case of Ramos v. Louisiana, the U.S. Supreme Court held that the “Sixth Amendment right to a jury trial—as incorporated...

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Delegation to Nonexperts

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The ambitious policy goals we set for our governments demand that they develop a great deal of expertise. We want drinking water to be...

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Surveilling and Then Shooting the Messenger: Intermediaries, Gag Orders, and the First Amendment

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In the context of domestic criminal surveillance, law enforcement agencies have historically relied on the practice of obtaining user information from traditional third-party intermediaries in order to uncover incriminating evidence on their true targets. For decades, those intermediaries were phone companies, and the actual targets were the individuals who used those companies’ services to communicate. Over time, this practice, which implicates both privacy and speech rights, has become more prevalent—and arguably more problematic—in the online world, where there are now a growing number of intermediaries collecting staggering amounts and kinds of user information. But while it appears that the government can, at least for now, constitutionally access communications held by intermediaries without probable cause thanks to the Fourth Amendment’s controversial third-party doctrine, the Stored Communications Act (SCA), which was enacted in 1986, attempts to restore by statute certain protections to individuals’ right to privacy in their electronic communications.

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Confronting Justice Head-On: The Role of States in Protecting Face-to-Face Confrontation

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The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be...

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Of Death and Delusion: What Survives Kahler V. Kansas?

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Mental illness is not a crime. That fundamental proposition is threatened by the Supreme Court’s recent decision in Kahler v. Kansas,...

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Juvenile Due Process: Applying Contract Principles to Ensure Voluntary Criminal Confessions

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Recognition that juveniles are limited in their decisionmaking informs most areas of the law. In recent years, the Supreme Court has afforded enhanced protections to youth in the criminal context due to their developmental immaturity and heightened state of vulnerability. But the current legal framework surrounding interrogations and the admissibility of confessions does not sufficiently protect youth from coercive interrogation practices.

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Smart Contract Dispute Resolution: The Inescapable Flaws of Blockchain-Based Arbitration

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Over two hundred and fifty million transactions occurred on the Ethereum blockchain in 2018. This staggering level of digital commerce was...

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The Executive Power Clause

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Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that...

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Rate Regulation Redux

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Rather than quietly revive cost-of-service rate regulation, this Article argues that FERC should simplify reserve requirements, stop counteracting state clean energy programs, and support the development of competitive markets for services that support grid reliability. Specifically, FERC and grid operators need not administratively reprice resources or force load-serving entities (LSEs), which distribute electricity to consumers, to transact with specific generators. Instead, the Commission should support long-term resource procurement markets that would be built on top of today’s short-term energy markets. Wholesale markets would consist primarily of short-term energy dispatch and balancing markets. They would not be relied on to ensure that revenues are sufficient to maintain resource adequacy. If LSEs were permitted to determine for themselves how to comply with resource procurement requirements, they could balance renewable policies, flexibility needs, and reserve mandates. This approach would maintain reliability while respecting FERC’s jurisdictional limits. Most importantly, it would prevent the Commission from quietly reviving cost-of-service regulation in regions that ostensibly abandoned that market structure decades ago.

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