Vol. 102 Issue 2

Part I of this paper explores the background of the Kelley case and the circumstances that led the Maryland Court of Appeals to lash out against the powerful gun industry. Part II examines criticisms aimed at the Kelley opinion and identifies good arguments that the court exhibited sound legal judgment in a controversy that it was perfectly competent to examine. Finally, Part III contextualizes the Kelley decision within the dramatic changes in American attitudes regarding gun crime and gun control and maintains that the opinion still has relevance today, as gun control advocates refocus on assault weapons.

Part I of this Note analyzes corporal punishment in the constitutional arena. Section A discusses Ingraham and section B covers the constitutional aftermath of the decision. Section B specifically explains how claims against corporal punishment in schools have been raised under the Fourth and Fourteenth Amendments, with circuit courts split regarding the applicability of these constitutional claims. Although other scholarship has explored the trajectory of circuit cases,18 this Note specifically argues that claims under the Fourth and Fourteenth Amendments are shortsighted: these fact-specific claims are rarely successful and only address the most egregious forms of corporal punishment in schools. Instead, this Note argues that reviving the constitutional challenge under the Eighth Amendment is the only constitutional means towards completely banning the practice in schools.
Part II presents a path by which the Supreme Court could overturn its jurisprudence in Ingraham and recognize that corporal punishment in schools violates children’s Eighth Amendment rights. Part II discusses the jurisprudence surrounding overturning precedent. Section A discusses why the Eighth Amendment is applicable to corporal punishment in schools, and section B discusses why physical punishment in schools is cruel and unusual. Section B also summarizes existing scholarship, which explains the consequences of corporal punishment on children and the local, national, and international movements to abolish this practice. Although other scholarship has made similar claims, this Note adds additional research to the discourse and further analyzes the Supreme Court’s recent jurisprudence surrounding adolescent development and the protection of children’s rights.
Part III encourages advocates to employ a legislative strategy, while simultaneously fighting for constitutional changes. Although scholarship about corporal punishment has focused almost exclusively on constitutional issues, this Note uniquely equips advocates with constitutionally sound legislative reforms. Section A discusses how advocates should lobby Congress to amend the Individuals with Disabilities Education Act (IDEA), create incentive grants similar to Race to the Top, and pass legislation that categorically ends physical punishments in schools—or at least some of the above. Section B argues that Congress can use its spending powers to enact these reforms and encourage states to ban corporal punishment in schools.

Presidents check statutory mandates outside the legislative process in a variety of ways. They may hold up implementation of a law, decide not to enforce a law, or decline to defend a law, to name just a few. This Article argues that these “extra-legislative vetoes” serve functions similar to the President’s Article I veto, only with respect to enacted law. The extra-legislative veto (1) requires that legal mandates maintain a threshold level of political support, (2) allows the President to protect the people from laws that the President views as bad, and (3) encourages deliberation regarding controversial policies. But the extra-legislative veto also poses dangers to our Madisonian system by virtue of the distinct institutional constraints on its exercise. A unilateral check on congressional acts threatens to transform the President into a “Legislator in Chief” and undermine the stability and transparency of government policy.
Based on this reconceptualization of the extra-legislative veto, this Article reviews some of its most prominent forms. The Article concludes that decisions not to defend a statute provide some of the benefits of an extra-legislative veto without raising significant concerns with transparency, executive lawmaking, or policy destabilization. Enforcement policies provide greater deliberation-forcing benefits, political responsiveness, and protection from “bad law” but also increase executive lawmaking. Although judicial review sets boundaries on policy instability, it does little to ensure the transparency of enforcement discretion. Conversely, judicial review of rulemaking does a better job promoting the transparency of statutory implementation but limits the extra-legislative veto’s political responsiveness. Finally, the presidential nonenforcement theory advanced by some scholars would dramatically increase the President’s power to protect the people from unconstitutional laws but would risk greater executive lawmaking and oscillations in policy, without the same deliberative benefits or political responsiveness of other extra-legislative vetoes. Accordingly, this Article proposes institutional mechanisms to preserve Congress’s voice in inter-branch policy deliberation while leveraging the extra-legislative veto’s power to protect the people from “laws gone bad.”

This Note is an investigation of Islamic judicial review—or the role courts play in evaluating legislation for compliance with constitutionally enshrined shari’a guarantees15—in Iran, Saudi Arabia, and Egypt. Although by no means an entirely representative grouping of Middle Eastern states, these three states are among the largest and most influential in the region and together span a range of approaches to Islamic constitutionalism.16 This Note hypothesizes that a general pattern has emerged: guided by state ideology, authoritarian regimes create institutions tasked with engaging in Islamic judicial review of legislation for compatibility with shari’a principles, only to limit this review in the name of “public interest,” or maslaha.
Maslaha is both a formative constitutional principle and a site of contestation. Regime elites seek to manipulate it by claiming that it is in the public interest to curb the power of judicial institutions. Citizen activists, meanwhile, attempt to subvert the dominant regime discourse by rearticulating the public interest in democratic terms. Courts also challenge regime manipulation of maslaha by chastising executive-branch abuse of power and asserting their jurisdiction over cases. Religion is infused throughout this discursive exchange: it attaches particular meaning to Islamic legal terms like maslaha and informs citizens’ demands for reform.
This Note investigates the development of Islamic judicial review in the historical and political context of each country. Part I surveys the literature on Islamic constitutional theory and accepts the potential for meaningful, Islamically based limits on government and protection of rights. Part II charts the institutional diversity of shari’a-based judicial review in Iran, Egypt, and Saudi Arabia, and concludes that ideology—be it revolutionary, neoliberal, or purist, respectively—has shaped regime construction and manipulation of Islamic judicial institutions. Finally, Part III traces the use of the principle of maslaha in Islamic constitutional discourse, finding that while regime-defined notions of the public interest limit the jurisdiction of bodies engaged in shari’a-based review of legislation, courts and popular reform movements are changing the terms of the debate. The result is a mixed bag: maslaha obscures the authoritarian foundations of constitutional arrangements in the Middle East but also broadens the meaning of Islamic judicial review to include deeper consideration of the law’s public utility.

The accepted wisdom—that a lawyer who becomes a corporate director has a fool for a client—is outdated. The benefits of lawyer-directors in today’s world significantly outweigh the costs. Beyond monitoring, they help manage litigation and regulation, as well as structure compensation to align CEO and shareholder interests. The results have been an average 9.5% increase in firm value and an almost doubling in the percentage of public companies with lawyer-directors.
This Article is the first to analyze the rise of lawyer-directors. It makes a variety of other empirical contributions, each of which is statistically significant and large in magnitude. First, it explains why the number of lawyer-directors has increased. Among other reasons, businesses subject to greater litigation and regulation as well as firms with significant intangible assets, such as patents, value a lawyer-director’s expertise. Second, this Article describes the impact of lawyer-directors on corporate monitoring. Among other results, it shows that lawyer-directors are more likely to favor a board structure and takeover defenses that potentially reduce shareholder value—balanced, however, by the benefits of lawyer-directors, such as the valuable advice they can provide. Finally, this Article analyzes the significant reduction in risk-taking and the increase in firm value that results from having a lawyer on the board.
Our findings fly in the face of requirements that focus on director independence. Our results show that board composition—and the training, skills, and experience that directors bring to managing a business—can be at least as valuable to the firm and its shareholders.

The Online Appendix to this Article is available as a .pdf.

The extraterritorial scope of U.S. law is of profound importance to our courts as they confront transnational tort claims stemming from foreign-based human rights violations, acts of terrorism, and other harms occurring all over the globe. Scholars to date have focused on the extraterritorial application of federal statutes, such as the Alien Tort Statute, while devoting far less attention to the extraterritorial application of state law and almost none to state common law. Recently, however, the Supreme Court has invoked and revitalized the statutory presumption against extraterritoriality to restrict application of federal statutes beyond U.S. borders. Soon, most plaintiffs may be left only to remedies under state law, and courts and scholars alike will confront whether state common law should be subject to the same kind of presumption against extraterritoriality that applies to federal statutes. Our courts cannot sensibly resolve these claims without a principled understanding or theory of the geographical reach of our common law.

This Article argues against new or presumptive limits on the extraterritorial application of the common law. It breaks new ground by laying a foundation to establish why the geographical scope of the common law should differ from the geographical scope of statutes. First, this Article shows that, under the Erie doctrine, state courts—not federal courts—should decide the geographical reach of their common law, as they already do under well-established choice-of-law rules. Second, this Article shows how jurisprudential differences between the common law and statutes explain why the common law—perhaps counterintuitively—should not be subject to a presumption against extraterritoriality. This analysis holds significant implications for the future of human rights and other transnational tort claims in U.S. courts and for the endurance of extraterritorial common law.