Current Commentaries
Volume 77
Summer 2025
Robinson Woodward-Burns
The Thirteenth Amendment outlaws slavery and involuntary servitude except “as a punishment for crime whereof the party shall have been duly convicted.” Jim Crow Southern state lawmakers used this “punishment clause” to lease Black convicts to infrastructure and agriculture projects in a system some scholars call “slavery by another name.” This paper traces the punishment clause to the earlier state constitutions of the Old Northwest. From the founding to the 1850s, upper Midwest state lawmakers used state constitutional punishment clauses to distinguish convict laborers, often white, from Black slaves and indentured servants, affording protections to the former. These Northern punishment clauses informed the framers of the Thirteenth Amendment in Congress and of matching state punishment clauses in Reconstruction-era Southern conventions. Only with Jim Crow did Southern state lawmakers co-opt the clause to entrench Black convict labor. By tracing this history, we can see how nineteenth-century lawmakers used state constitutional punishment clauses to distinguish free and enslaved labor and clarify that convicts were not slaves.
Fall 2024
SPINNING OUR WHEELS: WHY OFFSHORE WIND PROJECTS STALL AND HOW TO SPEED UP THE PROCESS
Sam Little
Halloween 2023 was a truly scary day for offshore wind. Ørsted canceled the United States’ largest offshore wind projects, Ocean Wind 1 and Ocean Wind 2, shaking the renewable energy sector and undermining climate goals set by state and federal governments. Once thought to be too big to fail, this paper examines the legal, regulatory, and policy shortcomings that led to their demise and proposes reforms to support offshore wind growth.
Every level of government must make changes to support the transition to renewable energy. The Department of Interior must reimagine its administrative procedures by frontloading programmatic environmental impact statements and expanding BOEM staff to reduce risk. Congress and the Treasury must provide clear tax credit eligibility guidance and shift to direct subsidies. New Jersey and local governments should negotiate flexible agreements and update municipal plans for offshore wind development. By addressing these challenges, policymakers can foster a more conducive environment for offshore wind projects.
Saturday Zammit
The internet promises a cure for anything, but advertising laws usually keep such claims in check. However, some escape scrutiny—such as unregulated prescription drug advertisements. During the pandemic, telemedicine platforms emerged, allowing potential patients to “apply” for prescription drugs after being lured in by extensive advertising. These ads explicitly name prescription drugs, which normally triggers strict disclosure requirements to inform consumers of potential risks. Yet, telemedicine advertisements are exempt from these rules.
Prescription drug ads should follow standard advertising guidelines. The FDA traditionally regulates prescription drug advertising, but its enforcement has limitations. To address these gaps, the FTC’s expertise in advertising regulation should be leveraged. A regulatory framework where the FTC enforces the FDA’s standards would create a more effective system, ensuring these platforms cannot bypass critical consumer protection laws.
Volume 76
Spring 2024
BE LIKE ANDUJAR: WHY THE NEW JERSEY SUPREME COURT GOT IT RIGHT
Ronald Wielenta
On May 31, 2017, a Black male from Newark, referred to as F.G., entered the Essex County Courthouse to serve as a juror. He expressed eagerness to participate, emphasizing his belief in the fairness of the criminal justice system and the importance of diverse perspectives. However, after extensive voir dire questioning, the prosecution attempted to strike him for cause, citing his background and use of certain lingo. The trial judge rejected the motion, finding F.G. fair and impartial. Shortly thereafter, the prosecution conducted a background check, leading to F.G.’s arrest and removal before peremptory challenges. This avoided any Batson review into potential race-based motives. In State v. Andujar, the New Jersey Supreme Court established safeguards to prevent implicit bias from influencing pre-Batson background checks. This Comment argues that other jurisdictions should adopt Andujar’s standard to combat prosecutorial abuse, protect the rights of defendants and jurors, and prevent racial bias in jury selection.
Tiani Boapeah
Reparations for Black Americans has become a recent hot topic within American social discourse. Some deny the pertinence of reparations due to the attenuation between slavery and would-be modern day recipients. However, proponents of reparations argue that in order to adequately address the impacts of slavery, which has disproportionately affected Black American life, providing reparations is more than justifiable. This Comment, functioning as an advocacy piece grounded in the argument for reparations, seeks to accomplish two things: (1) create the case for Black reparations through a dignity wrongs analysis and (2) test the feasibility of theories to institute reparations through a state case study in a geographic region typically left untouched from slavery discourse but with interesting ties to it.
FASHION’S GREENWASHING PROBLEM AND HOW TO BETTER PROTECT CONSUMERS
Edward Bank
Nowhere is it truer that consumers are shifting to buy sustainably made products than in the fashion industry. Luxury brands illuminate runways with supposed ethically sourced garments and mainstream lines disseminate styles tagged with an ode to reduced carbon emissions. But fashion’s commitment to sustainability runs into friction with industry practices for shorter, more frequent launch cycles that produce garments for fewer wears and more purchases. This is the model for “fast fashion” which has propelled the fashion industry deeper as one of the most polluting markets in the global economy.
To satisfy consumers with rapidly changing preferences but also aspire to make environmentally conscious purchases, fashion companies frequently find themselves marketing their garments as sustainable when they are not as environmentally friendly as the consumer believes. This conniving marketing ruse is known as “greenwashing.” By doing this, companies can convey empty promises to better the environment while consumers purchase their products under the false impression that they are contributing to an eco-friendly objective.
This Comment will study the fashion industry’s practice of greenwashing. Part II explores the dynamics of the fashion industry to understand its vulnerability to greenwashing. Part III investigates forms and cases of greenwashing in fashion. And Part IV explains how the Federal Trade Commission (“FTC”) can revise its Guidance for Environmental Marketing Claims (the “Green Guides”) to curb deceptive advertising. This Comment emphasizes that the FTC should allocate heavy consideration to the fashion industry when revising the Green Guides given its size and complexity, environmental impact, and consumer demand for sustainable products.
HISTORICAL WEAPONS RESTRICTIONS ON MINORS
Robert J. Spitzer
Since the Supreme Court’s ruling in 2022 that recast the basis for judging the constitutionality of contemporary gun laws according to the existence of historical analogs, all manner of laws have been subject to court challenge, including those that restrict gun access to those under the age of twenty-one. To date, federal courts have split on this question. Given this new, history-based standard for judging the constitutionality of current weapons laws, this Article examines the historical record pertaining to how the age of majority was defined in our past and how that pertains to the history of laws that restricted minors’ access to firearms and other weapons. This Article offers the most extensive assessment of state laws and local ordinances from the eighteenth and nineteenth centuries to be found to date. In addition, it includes a new and extensive excavation of a wide range of college and university codes in the eighteenth and nineteenth centuries that limited or barred students from having weapons during that time period, the nature and extent to which has not been identified or reported before. All of this information supports the conclusion that the broadly accepted age of majority during this time period was twenty-one.
Winter 2024
WHAT THE GLUCK IS GOING ON? A CONSTITUTIONAL ANALYSIS OF THE HISTORY-AND-TRADITION TEST
Max Hermann
In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade and returned the issue of abortion to the states. Within seven months of the ruling, more than twenty-four states had passed or introduced legislation to outlaw abortions, and many of those states do not include exceptions for rape or the mother’s health. This will return the United States to the days of “back-alley” abortions which compromise the health and safety of mothers, and puts doctors in a precarious position where they risk losing their medical licenses, or even going to jail, in order to uphold their oath of applying all measures required for the benefit of the sick.
Many scholars have criticized the use of the “history-and-tradition” test, which determines whether an unenumerated fundamental right is deeply rooted in the United States’ history and tradition. Up until the decision in Dobbs, the Supreme Court had never explicitly adopted any specific test in deciding unenumerated rights, citing the immense complications and difficulty in assigning one standard of review to all cases in which unenumerated rights were at issue. A number of different tests have been suggested by the courts and legal scholars over the years, each of which creates its own subset of issues and does not tackle the crux of the issue. In order to properly guard the rights that the Framers did not explicitly include in the Constitution and Bill of Rights, more radical changes must be employed. The proposed solutions found in this Commentary include strictly adhering to the concept of originalism or using originalism as a guidepost to adapt the Constitution to contemporary America. More drastic proposed solutions include restructuring the Court, which would protect certain fundamental unenumerated rights from interference by the Court. This Commentary further addresses the impact of Dobbs on the landscape of unenumerated rights, discusses the deficiencies and bias apparent in the many tests that have been argued for, and provides a solution to ensure that certain rights that the American people have secured over decades of struggle do not fall at the hands of a supermajority on the United States Supreme Court.
THROUGH VIOLENCE, FORCE, OR INTIMIDATION: UNDERSTANDING INSURRECTION AFTER JANUARY 6TH, 2021
Ryan R. Protter
Section Three of the Fourteenth Amendment disqualifies individuals who took an oath to the Constitution and later engaged in insurrection from ever holding any civil or military office. After the attack on the United States Capitol on January 6th, 2021, this Section has attracted significant interest from the media, lawyers, and Congress itself.
In New Mexico ex rel. White v. Griffin, a court used Section Three for the first time in over a century to remove an elected official for participating in the Capitol attack. The Griffin court held that January 6th was an insurrection using a definition based on how “knowledgeable nineteenth-century Americans and Section Three’s framers” would have understood the term.
Using history is “implicit in the study of constitutional law,” especially when “there is nowhere else to turn with respect to interpretation of the constitutional text, in the sense that other legally relevant materials are absent.” Neither the Fourteenth Amendment nor federal statutes define “insurrection,” and there is “a lack of case law exploring disqualification under Section [Three].”
This Commentary analyzes whether the Griffin court’s definition of insurrection is truly consistent with how Section Three’s drafters would have understood the term. Part I examines Section Three of the Fourteenth Amendment. Part II discusses Griffin. Part III analyzes how the Fourteenth Amendment’s drafters would have understood insurrection. Part IV compares the Griffin court’s test to alternative definitions to determine which is the most faithful to the original meaning of the term “insurrection.”
Other scholars have examined the meaning of insurrection during the nineteenth century. Professors William Baude and Michael Stokes Paulsen did so in their forthcoming article, The Sweep and Force of Section Three. This Commentary will address Baude and Paulsen’s approach to defining insurrection as compared to the Griffin court’s approach.
Mark Graber, who served as the plaintiff’s historical expert in Griffin, also conducted an historical analysis of insurrection. His argument primarily focuses on the connection between insurrection and “levying war,” while this Commentary looks at contemporaneous accounts of a wide array of insurrections during the nineteenth century and weighs alternative definitions.
A FELONY A DAY KEEPS THE DOCTOR AWAY
Kristen Reilly
The opioid crisis is a nationwide issue that has resulted in an increase in overdose deaths and a widespread addiction epidemic. The highly addictive qualities of opiates have landed them in the category of a “controlled substance” under the Controlled Substances Act. Both state and federal politicians and law enforcement agencies have grappled with the issue for decades, with little to show for it. Opiates were originally introduced in the medical field to treat acute pain but developed into a medicinal crutch. Subsequently, law enforcement agencies have begun to crack down on the legal, yet technically illegal distribution of opiates from physicians. The statutory construction of the Controlled Substances Act gives licensed physicians authorization to knowingly and intentionally distribute opiates, which would otherwise be illegal. However, as the epidemic has raged on and law enforcement agencies, presidential administrations, and state and local governments have zeroed in on prosecuting physicians, several questions have arisen as to the standard for establishing culpability. Courts have struggled to define several components of the Act, leading to confusion and ambiguity.
In 2022, the Supreme Court, ruled on a larger issue within the landscape of physician-defendant prosecution: the good faith defense. However, the holding not only furthered prosecutorial confusion, but only addressed a niche portion of the larger issue. This Commentary seeks to remedy that failure by both criticizing the Supreme Court’s holding and proposing a new statutory framework for the Act itself. This framework will focus on defining the ambiguous portions of the Act, such that physicians can avoid prosecution whilst providing the necessary care. Finally, considering the new statutory framework, this Commentary proposes adding the mens rea of “recklessness” to the Act’s preexisting statutory requirements.
Fall 2023
Paul J. Larkin
Over the last few terms, the Supreme Court has clearly avoided relying on Chevron in what should have been classic cases for its application: ones where a statute had an uncertain meaning, and the agency responsible for implementing it had a clear understanding what the law meant. Moreover, the Court has demanded that agencies identify statutory authority that clearly authorizes its actions. An injunction to “do the right thing” is insufficient. Toward the end of the October Term 2022, the Court granted review in a case—Loper Bright Enterprises v. Raimondo—that allows the Court to overturn Chevron should it choose to do so. We should learn its fate during the Court’s upcoming term.
This Commentary explains why it is time to “retire” or reformulate the Chevron deference standard. To get there, Part II argues that there are statutes other than the APA that are relevant to this issue. Congress has granted the U.S. Attorney General the authority to decide what legal position the United States will advance in litigation, and that includes deciding what statutory interpretation best advances the federal government’s interests. Accordingly, the relevant positive law vests the Attorney General, not the secretary of the responsible agency, with the authority to identify the federal government’s legal position. Part III then explains that, under both the rationale of Chevron and the Court’s post-Chevron precedents, the Attorney General is not entitled to any deference for its interpretation of the law. Finally, Part IV submits that, under a revised interpretation of Chevron, an agency should receive respect for its judgment about how best to implement a statute, but only the same respect that a court would afford a scholar for his or her understanding of the optimal answer to a legal question. That much, but no more. In law school, the justices might have been taught the law of contracts by a sensei like Samuel Williston or Arthur Corbin, and they are entitled to treat the teachings of their hanchis with all the respect they have earned. But it remains a justice’s responsibility to resolve all legal issues de novo because that obligation comes with a black robe.
Jamie G. McWilliam
Originalism has been criticized for failing to provide a determinate meaning in every instance of interpretation. To these commentators, originalism is at best a flawed methodology in which diverging historical sources are inconsistently applied by judges and scholars who cannot even agree at what level of generality the original meaning should be viewed. Some even go so far as to argue that original meaning is, at worst, “illusory,” and “allows originalism to be turned into, in effect, a form of progressive and very much living constitutionalism.” In other words, they say originalism, which was spawned as a cogent theory to counter the Warren Court’s flexible use of the Constitution, is a fraud.
There are a few issues that scholars have raised with originalism, but in the end, each is a critique of originalism’s alleged failure to provide a noncontroversial outcome in every case. The first issue is that judges are generally not historians, and their use of history may be ill informed. Even when a historical analysis is well-performed, a lack of relevant data and historical disagreement over meaning make finding a concrete solution difficult. Where a source provides an answer, deciding to attribute one historical author’s view to the entire body that drafted the legal text raises additional concerns. At the end of this line of inquiry is the question of whether a unique original meaning can be ascertained from the evidence, or even whether such a meaning existed in the first place. If not, is originalism a failed method of interpretation?
This Commentary argues that these critiques miss the primary strength of originalism in practice: even where an originalist analysis fails to provide a determinate interpretation, it typically will further determine an underdetermined text. In other words, it will tell us what the legal text does not mean.
