Inter Alia

Founded in 2010, Inter Alia is a cutting-edge forum for shorter, timely legal scholarship at the intersection of law and policy. Its online-exclusive content provides succinct perspectives on the policy implications of legal happenings at the federal, state, and local levels. 

Policy Remarks  

In the wake of the tragic shooting in Newtown, CT, President Obama and others have called for legislative measures to combat gun violence. We propose making all firearms transfers subject to National Instant Criminal Background Check System (NICS) approval, which would eliminate the “gun show loophole” and require background checks for private party firearm sales. Further, instead of bans on magazine capacity and “military purpose” features—bans which together are commonly known as an “Assault Weapons Ban” (AWB)—we propose a five-year, renewable “Restricted Firearms License” program for the ownership of handguns, centerfire semi-automatic rifles, and semi-automatic shotguns.

Essays 

 
Jonathan Siegel & Kate Hadley

Since it came down in January, United States v. Jones, the Supreme Court’s recent case on GPS monitoring, has drawn popular attention and critical examination. Commentators have discussed how the case will affect the law of GPS tracking and other advanced technologies, and how the majority’s trespassory-search test will affect Fourth Amendment law. But, as of yet, there has been little analysis of the four-Justice concurrence by Justice Alito.


Andrew Friedman

Ezra Ross and Martin Pritikin’s well-researched article regarding the collection of fines and penalties imposed on corporate offenders answers the question of what happens after the enforcement action ends—the government does not collect the vast majority of corporate enforcement penalties imposed. This Essay addresses some of the practical realities of enforcing corporate penalties.


Dylan O. Keenan

In Crawford v. Washington, the Supreme Court radically transformed Confrontation Clause doctrine. This Essay argues that the Court’s recent decision in Bullcoming v. New Mexico threatens the uneasy balance between prosecutorial needs and the Crawford line. Specifically, Bullcoming could be used to exclude DNA database evidence in prosecuting cold cases. DNA evidence has been used in criminal prosecutions for only a few decades, but it has revolutionized criminal justice during that time. DNA evidence has been particularly important for prosecuting rape cases, which historically have low conviction rates. Prosecutors should therefore be concerned that they might lose an essential tool for prosecuting rape cases and seeking justice for victims. Defense attorneys have a stake, too. When prosecutors lose access to DNA evidence, they are more likely to turn to less reliable eyewitness testimony and circumstantial evidence.


Jamin B. Raskin

People complain that gerrymandering ruins redistricting. But, in the real world, redistricting is gerrymandering. Whatever their other specialties, all incumbents are, at least decennially, experts on the political demography of their own districts, and the necessary logic of redistricting as an incumbent is to choose your voters on the map before they choose you on the ballot. It is time to replace the winner-take-all, single-member-district mentality with a system that produces what John Stuart Mill considered full representation, in which all citizens are seen and heard through their chosen representatives. The idea is that nearly everyone, if not actually everyone, will help to elect representatives who mirror their views and sentiments. This is what I think of as the “universal representational imperative.”


Mark I. Harrison

Judicial politics has been the subject of increasing public attention because of relatively recent infusions of huge sums of money into media-driven judicial elections. Recent surveys show that three out of four Americans believe that the money spent on judicial elections influences the decisions of the judges in question. Surveys also show that nearly half of the judges subject to election believe that campaign expenditures affect the judicial decision making process.


Barry R. Schaller

Elected judges are not alone in having to deal with politics and politicians throughout their careers. This Essay discusses the ethical implications of judicial contacts with politics in states in which judges are appointed and reappointed for limited terms through the political process. A possible subtitle for this Essay might be: ‘Can appointed judges have a normal life while complying with the ABA Model Code of Judicial Conduct within the political universe where they work and live?’


Ian Millhiser

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden.  Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.


Michael Lee

In the shadow of a Presidential veto, it will be impossible to repeal health care reform completely—despite the overwhelming number of additional seats Republicans won in the 2010 election.


Susan P. Crawford

On March 9, 2010, the city of Alexandria, Virginia received a letter from Verizon.[1] The letter, signed by Verizon’s Virginia president, Robert Woltz, said that Verizon would not be installing FiOS services in Alexandria.


Frank Pasquale

Bottlenecks at any layer of the Internet—physical, social, application, or content[1]—create opportunities for the exercise of undue power over the flow of information and ideas online. Corporate forces menace both user privacy and free expression on the Internet. Market concentration lets powerful business leaders develop unprecedented digital dossiers on users. Such concentration also allows leading companies to pervasively shape culture and politics, elevating some voices and silencing others.


Jonathan Zittrain

Popular imagination holds that the turf of a state’s foreign embassy is a little patch of its homeland. Enter the American Embassy in Beijing and you are in the United States. Indeed, in many contexts—such as resistance to search and seizure by a host country’s authorities—there is an inviolability to diplomatic outposts. These arrangements have been central to diplomacy for decades so that diplomats can perform their work without fear of harassment and coercion.


Dawn C. Nunziato

Here we go, once more unto the breach, to face yet another battle in the near decade-long war over net neutrality. Some of the combatants have changed, and their positions have shifted slightly, but today we find essentially the same interests represented and the same arguments advanced. On one side, the major cable, Digital Subscriber Line (DSL), and wireless broadband providers continue to argue against increasing the Federal Communication Commision’s (FCC) authority over how these providers manage the flow of information through their pipes.


Keith E. Whittington

Some people were not very happy with President Barack Obama’s criticism of the U.S. Supreme Court in his 2010 State of the Union Address.


Douglas E. Edlin

In this Essay, I argue that presidential criticism of the Supreme Court during a State of the Union address (SOTU) is different from other forms and forums of presidential criticism of the Court. This is because the State of the Union is different from other presidential addresses and because the Supreme Court is different from other state and federal courts.


Mark A. Graber

President Barack Obama’s State of the Union address has been described both as “full of sound and fury” and as “signifying nothing.” The crucial passage declared:


Bruce Peabody

On January 27, 2010, President Barack Obama delivered his first State of the Union address before a joint session of Congress and, less directly, millions of American households. While some commentators focused on the political agenda, policy aspirations, tone, and rhetorical style of the speech, for students of law and courts, the President’s most significant remarks involved a concise criticism of the Supreme Court of the United States.


Editor’s Note: Introduction to Inter Alia