Volume 11 (2022): Issue 2 (November 2022)

During his four years as President Donald Trump's use of the clemency power generated considerable controversy. Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations. Trump used clemency to favor a rogues gallery of cronies, celebrities and those whose crimes showed particular contempt for the law. However, few scholars have examined the justifications he offered when he granted pardons and commutations. This paper fills that gap. We argue that because the clemency power sits uneasily with democracy and the rule of law, when Presidents use this power they feel the need to supply justifications. We report on a study of Trump's clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

The Supreme Court and constitutional commentators have long struggled to identify the provision in the Constitution, if any, that grants Congress authority to restrict immigration. This article demonstrates that authority to restrict immigration is included within the Constitution's grant of power to Congress to “define and punish . . . Offenses against the Law of Nations.”

U.S. Const. art. I, § 8, cl. 10.

Lacking the powers of the “purse or the sword,” the U.S. Supreme Court is particularly dependent upon maintaining “authority” in order to ensure recognition of its constitutional rulings. Such authority allows the Court to operate against the majority and to survive as a political institution despite lacking a basis in popular will. In one understanding of the Court's position, that authority sits outside of politics, and calls upon a pre-existing and accepted relationship in order to navigate the absence of power and force. Linking authority to a pre-existing relationship and a non-political role, the Supreme Court can be seen as countermajoritarian by design. Calling on an authority which sits outside of political life, by necessity it lacks attachment to the political majority of any given era, and instead binds the nation to a constitution which sits above and beyond politics. However a second approach to authority emphasizes not a relationship to a past moment or pre-political relationship but rather the collective recognition of authority. This view of authority looks to Flathman's conception of “the authoritative,” defined in terms of “the web of conventions” that link power and authority, to situate authority within the current moment. Examining a central moment within the development of the U.S. Supreme Court's authority, the case of McCulloch vs. Maryland, this article argues that it is the second view of authority that most readily captures the authority of the Court. Through a close reading of Chief Justice John Marshall's opinion in McCulloch vs. Maryland, the article shows that while appeals to a founding moment were important within that opinion, these appeals can be productively understood as reflective of the authoritative ethos of the early American Republic. Framed in this manner, the opinion sought to generate authority not by a link to the past but through connection to a contingent sense of the authoritative. Crucially, such an approach positions constitutional authority within the contemporary political realm and offers the possibility of a constitutional politics less anchored in a particular historical moment of founding.

Can an Article V convention be limited? While there is an emerging consensus that it can, in this paper I focus on John A. Jameson's legal treatise on constitutional conventions and the jurisprudence it spawned to help round out our understanding of both Article V in particular, and of constitutional revision more generally. Jameson's treatise was directed to the larger question of whether constitutional conventions in general could be limited. Since its initial publication in 1867, courts have relied upon Jameson's insights to build a law of constitutional conventions at the state level. Several components of this jurisprudence are particularly relevant to Article V, including the distinction between constitutional and revolutionary conventions, the distinction between amendment and revision, and the requirements of convention acts and ratification votes, in addition to the preclusion of a robust role for the electorate in the Article V convention process. This jurisprudence is readily available for courts to help guide them in determining the nature and limits of an Article V convention.

The Book of Mormon helped launch one of America's most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation of interest in its own right. This article brings this new approach into dialogue with the influential legal theory of Robert Cover. In so doing, it breaks new ground in the study of law and literature and shows how a close reading of the Book of Mormon text reveals a subtle debate about the nature of rule following that intersects with contemporary discussions in legal theory. These narratives illustrate an important feature of what we might call the phenomenology of legal experience, namely the way in which law carries within itself—rightly or wrongly—claims to transcendence.

The First Amendment commands government neutrality in regulating private speech, but government speech itself is exempt from this requirement. Courts have recognized that governance entails educational, informational, and persuasive speech, and have focused on distinguishing government speech from nongovernment speech. Some critics have argued that, instead, courts might do well to target government speech that manipulates public opinion or abridges private speech, as it is the consequences of the speech and not the nature of the speaker that really matters. The basic problem remains unsolved: If courts treat government speech as covered by the First Amendment, the practical utility of government speech disappears. But if courts deny that government speech is covered by the First Amendment, government speech may silence or overwhelm private speech and much of the practical utility of the First Amendment may disappear.

Science fiction and time travel can be used to inform and enhance the education of law students in profound ways. Within the broader field of law and literature, the relationship between law and science fiction, especially time travel stories, is rich and useful. Themes and concepts in time travel can be applied in the exploration of existing legal philosophies as well as a more expansive and engaging study of power, authority, freedom, and a number of global issues. As governments and people worldwide wrestle with climate change, armed conflict, pandemics, and the increasing significance of artificial intelligence and other advances in technology, time travel stories give students unique contexts in which to consider what law is and the degree to which it defines human experience. For generations, brilliant science fiction writers have offered thought-provoking stories and worlds that law professors and their students can use to reimagine legal thought and practice. Like its close relatives, mythology and fantasy, the science fiction genre is untethered to current social or political experience or projections necessarily corrupted by narrowly conceived historical perspectives. Science fiction writers are interested in illuminating possibilities by considering identifiable problems in unidentifiable environments. It is no accident that gender identity, racism, reproductive rights, extremist ideologies, global health crises, and various recognizable forms of labor exploitation are addressed in provocative and insightful ways by a number of the best science fiction writers. Law has a strong presence in their work. Judges, law givers, ruling groups, and other less familiar forms of power and control appear in these stories and help to move and shape the experience of the time traveler. Law students can draw on the work of these writers to consider old questions in new and refreshingly broad ways. The importance of communication and access to information are also strong themes common to law and science fiction. How are concepts of truth and propaganda significant to power? Is truth necessary for legitimacy? Information technologies introduced in the science fiction world now exist in real time in forms and with speed and volume unimagined even a few decades ago. As artificial intelligence becomes dominant in many aspects of our daily lives, law students must consider how it may change law making, court procedures, entire legal systems, and perhaps even concepts of justice. As a project, law students might develop a case and conduct a trial using an AI judge or try a case to an AI jury. How human is the law? The role of emotional intelligence and concepts like mercy, restorative justice, forgiveness, or retribution are also things they might explore in seminars or other classes using science fiction literature and other time travel media as a framework.