Recent Commentary from Inter Alia

YLPR’s online edition

Harm Reduction is Justice

Ann Lininger
Monday, January 3, 2022 - 11:00am

The author routinely sees people cycle through court who lack the harm reduction and recovery support they need to be stable and safe in their communities. New laws in Oregon and Washington could change that: they could help people permanently leave - or even avoid - the criminal justice system. Oregon’s Ballot Measure 110 decriminalizes low-level drug possession, and Washington state’s Senate Bill 5476 directs public safety officials to divert many people caught with drugs to social services twice before arresting or prosecuting them. Both laws increase funding for community-based programs that could help people live successfully in their neighborhoods. Leaders working to improve our justice system should convene a council to compare the results of the Oregon and Washington programs with results from states that respond more traditionally to drugs and addiction and with results from Portugal, which decriminalized drug use in 2001. By identifying the most effective interventions, this council could help jurisdictions make concrete, well-considered reforms to improve justice in their communities. 

A Sleeping Giant: How the Dormant Commerce Clause Looms Over the Cannabis Marketplace

Tommy Tobin & Andrew Kline
Monday, January 3, 2022 - 10:45am

Congress is currently debating multiple proposals to regulate cannabis at the federal level. In their Essay, UCLA Law’s Tommy Tobin and leading cannabis lawyer Andrew Kline explore the impact of the Dormant Commerce Clause on the proposed national cannabis marketplace. They argue that Congress should consider designing federal oversight of the cannabis industry to establish a clearly articulated balance of powers between the federal and state governments, retaining portions of the current state regulatory systems and state social equity programs while promoting public health. Without clarity on Dormant Commerce Clause issues, they argue that the introduction of interstate commerce in cannabis might prompt years of handwringing for legislators, headaches for regulators, and unnecessary (and expensive) litigation for regulated businesses and applicants.

“Infants” and Arms Bearing in the Era of the Second Amendment: Making Sense of the Historical Record

Saul Cornell
Tuesday, October 26, 2021 - 2:45pm

Professor Cornell’s Remark offers a detailed historical analysis of the rights of “infants” (whom we would now call “minors”) at the time of the Founding. This examination reveals that any attempt to extend the right to bear arms to minors is ahistorical and therefore does not fit into an originalist legal framework. Professor Cornell’s analysis is particularly helpful for making sense of the recent Fourth Circuit decision in Hirschfeld v. ATF.

The Congressional Review Act and Judicial Review

Paul J. Larkin, Jr.
Friday, July 2, 2021 - 1:15pm

The Congressional Review Act of 1996 (CRA) prohibits agency rules from going into “effect” before they are submitted to Congress so that it can review them and, if it chooses, pass legislation nullifying them before they can injure the public or the economy. Unfortunately, agencies have regularly disregarded the CRA, requiring affected members of the public to ask the courts to invalidate unsubmitted rules. The U.S. Court of Appeals for the Tenth Circuit, however, held that the validity of an unsubmitted rule is not subject to judicial review. The court’s nonsensical ruling that courts must “see no evil” upends the purpose of the CRA by allowing agencies to coerce action by private parties that Congress has had no opportunity to consider and scotch before they become “law.” The Supreme Court needs to make clear that the CRA does not permit agency officials to ignore the CRA.

“The Cornerstone of the Stability of our Government”: The Forgotten Penalty Clause and Electoral Reform in the Aftermath of the 2020 Election

Delaram Takyar
Monday, June 14, 2021 - 12:00pm

The 2020 presidential election, which was preceded by months of efforts by Republican party members to disenfranchise voters during a global pandemic, highlighted the United States’ historic need for electoral reform. The tools for this reform might already exist in the Penalty Clause of the Fourteenth Amendment, which provides a built-in remedy—reduced representation in Congress—in cases where a state abridges the voting rights of its citizens. This Remark provides an overview of the history of the long-neglected Penalty Clause, including a discussion of how important its drafters viewed its role, as well as practical proposals for ways it could be implemented today.