Just two years and two days after the publication of the Heller decision, the Court was given another shot at articulating a standard of review for Second Amendment challenges through its decision in McDonald v. City of Chicago. Justice Alito, writing for a plurality of the Court, found the Second Amendment to be incorporated against the states through the Due Process Clause of the Fourteenth Amendment. McDonald’s holding that the Second Amendment is a fundamental right and applicable to the states led the Court to find a Chicago ordinance essentially prohibiting the ownership of handguns within city limits to be unconstitutional. With a similar result as to that of Heller, the Court’s decision provided Otis McDonald and several other petitioners with authorization to possess a handgun within the home. The Court declined for a second time, however, to provide a standard of review for lower courts to apply to future Second Amendment cases. Also remarkably similar to the Heller decision, the dissenting justices seized the opportunity to voice their desire for a more malleable level of scrutiny.

This Note argues that in the wake of Heller and McDonald—which recognized the Second Amendment as an enumerated fundamental right—lower courts should apply strict scrutiny as the standard of review when adjudicating future Second Amendment challenges. The use of strict scrutiny, however, does not come without some well-defined, but limited, exceptions that are “deeply rooted in this Nation’s history and traditions”— essentially, fundamental exceptions to the Second Amendment. Part II of this Note will address the background cases leading to the acknowledgement by the Court of this fundamental right, namely United States v. Miller and District of Columbia v. Heller, along with McDonald v. City of Chicago. In Part III, this Note will explain the three-tiered standard of review model for challenging the constitutionality of laws, along with some of the variations that the Court has crafted through precedent. Part IV argues that the plurality’s opinion in McDonald is a clear step towards a stricter standard of review. Furthermore, Part IV argues that strict scrutiny is the appropriate standard of review for Second Amendment challenges and addresses the limitations that can be expected to accompany that standard. Finally, Part V discusses the obvious forewarning by Justice Stevens found at the beginning of this Note, namely that lower courts will undoubtedly be bombarded with Second Amendment challenges until the Supreme Court clarifies this point of contention.

In May 2009, the D.C. Council passed a law requiring the District to recognize same-sex marriages performed in other jurisdictions. Within a few weeks after the Council vote, a group of ministers and other same-sex marriage opponents formally approached the D.C. Board of Elections and Ethics with a referendum designed to block the city from recognizing such marriages. However, D.C. referendum law prohibits referenda that authorize unlawful discrimination under the D.C. Human Rights Act (the “Human Rights Act” or the “Act”). On June 15, 2009, a two-member D.C. elections board blocked the referendum proposal, claiming that same-sex marriage is protected under the Human Rights Act. The proponents of the referendum appealed the decision to the D.C. Superior Court. The Superior Court upheld the Board’s decision and declined to delay enactment of the controversial bill, reasoning that the ballot initiative process was still an option even after the time for a referendum had lapsed. The law, therefore, went into effect on July 7, 2009.
On September 1, 2009, several D.C. residents filed the “Marriage Initiative of 2009” with the Board. The initiative sought to codify the traditional definition of marriage in order to overturn the law recognizing same-sex marriages performed in other jurisdictions, and to prevent the District from altering the definition of marriage in the future. Both the Board and the Superior Court denied this second petition, again reasoning that a popular vote on the issue would be contrary to the Human Rights Act protections.

In the following months, the D.C. Council and Mayor instituted an additional bill that would allow same-sex marriages to be performed within the District. Traditional marriage proponents again attempted to propose a referendum designed to prevent the bill from taking effect. For the third time, both the D.C. Board of Elections and Ethics and the D.C. Superior Court declared that allowing a popular vote on the same-sex marriage issue would condone unlawful discrimination on the basis of sexual orientation under the D.C. Human Rights Act. Since the Court was not willing to stay its decisions on the two proposed referenda, appealing those decisions became moot once the laws took effect, and defenders of traditional marriage were only able to appeal the Superior Court’s decision regarding the Marriage Initiative of 2009. In Jackson II, the D.C. Court of Appeals upheld the Superior Court’s ruling regarding the proposed initiative, and an application for certiorari was denied by the Supreme Court.

Because much of the Board’s, the Superior Court’s, and the Court of Appeals’ reasoning in subsequent decisions depends on and largely follows the Board’s and Superior Court’s analysis of the permissibility of the original proposed referendum, this Note focuses on the litigation surrounding that referendum. In doing so, this Note analyzes the District’s voting laws and the Human Rights Act, concluding that, despite the courts’ rhetoric, neither D.C. law nor judicial precedent prevent any registered, qualified elector or electors from the District of Columbia from ordering a referendum or an initiative for the purpose of overturning, by popular vote, unwanted same-sex marriage legislation.
Part I discusses the background and specific provisions of D.C. voting laws that apply to the same-sex marriage issue. Part II examines the language and purposes of the D.C. Human Rights Act to determine whether it expressly or implicitly protects same-sex marriage. Part III analyzes the Board’s and the D.C. Superior Court’s decisions regarding the original proposed referendum, and supports the legality of allowing the voters in the District of Colombia to have the final say in their jurisdiction on the same-sex marriage issue. Part IV summarizes the same-sex marriage debate, and discusses some implications and consequences of legalizing same-sex marriage in order to highlight some of the more prudential reasons for allowing the voters to avail themselves of the referendum/initiative process to preserve or abandon the traditional definition of marriage.

This Article explores the constitutionality of green building laws that require developers to comply with the sustainable construction rating system promulgated by the United States Green Building Council (“USGBC”), a private, non-governmental interest group. The Article reviews how the USGBC creates the standards for its rating system and then modifies these standards without gaining approval from any governmental body, thereby changing the legal rules with which private citizens and constructors must comply. The Article argues that, because the USGBC can unilaterally change the law, many green building policies undermine political accountability and violate the doctrine of nondelegation. The Article concludes by proposing several ways that governments can enact green building policies without unconstitutionally delegating legislative power or circumventing principles of democratic governance.

Confused, Jane tries to imagine what this guy is talking about. What picture? Her memory is faded from the events of last weekend due to her drinking too much at a keg party. But her friends would not have let anyone take picture of her passed out, right? Finally arriving at her dorm, Jane hurries onto the computer and goes to the website. There, Jane is horrified to view an anonymously posted picture of her passed out naked on a stranger’s bed. Under the picture is a string of comments claiming that Jane is a “whore, who gave me syphilis.” Desperate, Jane contacts the operators of the website and begs them to remove the picture and the comments. Jane also informs the operators that she has never contracted a sexually transmitted disease and that, if they did not remove the material, she would sue for defamation. Days later, the operators respond to Jane, and tell her that they are protected by federal law and are not required to remove the statements. The operators also inform Jane that the anonymous posters have a First Amendment right to tell it how it is.

Unfortunately, this nightmare is all too real. Anonymous gossip websites, blogs, social networking websites, online bulletin boards, and other similar types of Internet forums allow people to speak their minds and exercise their First Amendment right to free speech and expression; however, these online forums can be abused when people use the sites to defame others. When a defamatory statement is posted on the Internet, it is often times difficult to locate the individual responsible because most of the defamers are given anonymity by their Internet service provider (“ISP”). Plaintiffs in Internet defamation suits are unable to easily name their defamers since usually only the defamer’s screen name is available. Furthermore, most courts interpret the Communications Decency Act of 1996 (“CDA”) to give ISPs complete immunity from liability for the defamatory posts of third parties, even if notified that certain statements are defamatory. Thus, ISPs have no civil liability to remove defamatory material, and the defamed plaintiffs are left with little recourse. This judicial interpretation of the CDA is significantly different from the well-established common law of defamation, as well as the very purpose for the enactment of the CDA.

Internet defamation is an increasing problem, leaving the defamed helpless and the defamers believing they have a First Amendment right to post defamatory content. This Article will reemphasize the notion that the First Amendment does not protect defamatory speech on the Internet. Part I of this Article will discuss defamation law as part of common law, as applied to the Internet before the passage of the CDA, while Part II will discuss the judicial interpretation of the CDA in defamation cases. Part III of this Article will address the problems with the CDA as currently interpreted by the judicial system. Finally, Part IV will propose amendments to the CDA, which are intended to clarify the statute in order to give more legal options to defamed victims. Furthermore, Part IV will explain how the proposed amendments would not violate the First Amendment.

To many, the Federal Register may go unnoticed and even be taken for granted. During the 111th Congress, members of Congress introduced only a few bills that would change the administrative procedure laws associated specifically with the Federal Register. Also, very few cases dealing with the notice and comment requirements for agency regulations have come before the Supreme Court. This could lead one to believe that executive branch lawmaking is straightforward and does not require the intervention of the other branches of government. In the absence of action from the legislative branch, the creation and official implementation of “Federal Register 2.0” raises a few questions. The first question is whether it is appropriate for the department that makes general policies regarding the format of submissions to the Federal Register to be able to submit its own proposed regulation to itself and therefore oversee the notice and comment requirements over its own regulation. Another question is whether having the processes of the Federal Register in an electronic medium will lead to increased litigation in the courts. Finally, with the potential for more openness and participation in government, will “Federal Register 2.0” and the agencies be able to handle the probable increase in use, or will it become necessary for Congress to step in and reform the notice and comment rules?

This article will try to answer these questions, and will first look at the history of the legislation that initiated and regulates the Federal Register and the associated methods of creating administrative law. The answers to the questions will be found both in this history as well as in the changes our own society has made in the years since the passage of the legislation that created the Federal Register, the Federal Register Act of 1935.

This article will argue that even if the Military Readiness Enhancement Act of 2009 is passed and DADT is repealed, veterans will still be caught in a catch-22 because the reason for veterans’ discharge under this policy is reflected in their papers. In other words, they must out themselves to employers, thereby exposing themselves to further potential discrimination based on their sexual orientation or else forego the benefits afforded to military service. It will further argue that unless all veterans discharged under this policy are issued new papers that are neutral as to the reason for discharge, they will suffer ongoing exposure to discriminatory employment practices. The argument will be placed in the context of the historical treatment of homosexuals in the military, including the proposal, passage, and possible repeal of DADT.

Among the most public opponents of the law was the Catholic Archdiocese of Washington, which operates Catholic Charities, a leading service provider to low-income residents in the metropolitan area. The Catholic Archdiocese warned the D.C. City Council that it would sever its professional relationship with the city if the same-sex marriage law passed because same-sex unions are inconsistent with the Church’s core theological teachings. Once the law went into effect, over a year later, the D.C. City Council cancelled the foster and adoption program that the city’s Child and Family Services Agency and the Catholic Archdiocese co-administered for eighty years, citing that the religious organization was no longer eligible to provide services. Weeks later, the Catholic Archdiocese announced that it would no longer offer spousal benefits to its new employees. The political battle between the D.C. City Council and the Catholic Archdiocese remains heated, as the law’s full fall-out is yet to be realized. However, there are two observations from this conflict that should inform lawmakers and policy advocates alike.

The first observation is that Catholic Charities’s choice to cut its employee benefits demonstrates the lengths to which some religious organizations will go to deny lesbian and gay equality. D.C.’s same-sex marriage law itself did not require that Catholic Charities discontinue its employee spousal benefits. Rather, the Catholic Archdiocese chose to eliminate spousal benefits for all of its employees to comply with the Equal Pay Act and Title VII of the Civil Rights Act of 1964, which both were triggered by the same-sex marriage law. The Equal Pay Act requires equal compensation for substantially similar work, and Title VII bans employer discrimination on the basis of sex, both of which mandate equal compensation for employees performing similar work, including fringe benefits. Catholic Charities, therefore, would have been exposed to legal liability if the organization did not extend equal employee benefits to those with same-sex spouses. The Catholic Archdiocese ultimately elected to cut spousal benefits for every new employee rather than to offer the same benefits to their new lesbian or gay employees. In other words, Catholic Charities’ administrative decision hurt all of its new workers — gay and straight alike.

The second observation is that the D.C. City Council elected to carve out a narrow religious activity exemption in its same-sex marriage law, which states: Notwithstanding any other provision of law, a religious society, or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of a marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society’s beliefs.

The Act’s religious organization exemption, related only to marriage activities, strikes a reasonable balance between religious freedom and civil rights. On one hand, the exemption states that a religious organization may refuse to sanction same-sex unions, but, on the other hand, the exemption also implicitly recognizes that civil society may exercise its institutional prerogative to confer benefits to whomever it chooses. Religious freedom and civil rights, in this way, can harmonize to accommodate a plurality of beliefs and interests.

The D.C. law is an exception, however, as many lesbian, gay, bisexual, and transgender civil rights laws fail to strike a reasonable balance between religious freedom and robust discrimination protection. Most notably, the Employment Non-Discrimination Act (ENDA), designed to extend federal employment discrimination protection to gay, lesbian, bisexual, and transgender (LGBT) people, contained a religious organization exemption much broader than the existing Title VII exemption. ENDA’s religious exemption, taking different iterations over fifteen years, begs an important question: why were religious organizations permitted to discriminate against LGBT people but not against other statutorily protected groups?

This comment discusses ENDA’s long history of broad religious exemption and its meanings for LGBT civil rights progress ahead. Part I traces ENDA’s religious exemption transformation from 1994 to present, noting a narrowing of the exemption as the LGBT movement witnessed increasing political success. Part II examines the delicate balance between the First Amendment Religion Clauses, as well as LGBT civil rights and religious freedom, and argues that ENDA’s previous exemptions tipped this delicate balance toward religious over-accommodation prohibited by the Establishment Clause. Part III concludes that the LGBT movement experienced a significant victory with the modified religious exemption in the 2009 version of ENDA, which challenged the conservative Christian bloc’s political and cultural monopoly over LGBT rights’ narrative, and represents the defeat of a potentially dangerous precedent for future civil rights struggles.

CDSs, as financial instruments, are both beneficial and detrimental. CDSs do not necessarily create instability, but the contracts can be conduits of instability by shifting the risk of default onto another entity. This receiving entity, on the other hand, can be ill-equipped to deal with this new risk, even though it views itself as capable. Regardless of the benefits of CDS transactions, the public viewed the financial derivative as dangerous.

Due to the public’s anger, there was substantial impetuousness in Congress to create new legislation to prevent another market wide failure. Both the U.S. House of Representatives and U.S. Senate proposed their own pieces of legislation, and, in June of 2010, President Barack Obama signed the financial reform bill. Part I of this paper will discuss CDSs and the swap market. Part II will review the prior law, which governed CDSs, and the changes being made to this law by the financial reform bill. Part III will discuss, in a qualitative manner, how these changes will affect CDS contracts and the market for these contracts and whether clearing CDSs will adequately address the issues within the financial markets. Part IV will discuss the governance issues that still underlie the CDS markets and the impact of the new legislation on governance and trading.

The war in Afghanistan, presenting a host of thorny legal issues, is now the longest war in United States history. This means that the federal courts have never endured wartime conditions for so long. As a result of this prolonged martial influence, it is clear that this war is corroding federal court jurisprudence. My research represents a first attempt at synthesizing what impact the war in general, and terror trials in particular, have had upon the federal courts. I argue that the hypothetical fear of “seepage” has become concrete. Indeed, judges already admit that the war has taken a regrettable toll on courts’ opinions.

In a trend that should alarm both tribunal proponents and detractors alike, tribunals and criminal trials are gradually growing to resemble one another. While efforts to improve the military tribunal system have enjoyed a fair level of success, long-entrenched Article III standards are deteriorating at a pace that mirrors the pace of tribunals’ improvements. A cluster of recent cases, proposed bills, and regulatory actions have narrowed the gap between Article III courts and military tribunals considerably. When viewed as a whole, these blurred lines between the military and domestic spheres draw the federal courts into disquieting congruity with the tribunal system.

I argue that these decisions and bills have altered (1) habeas jurisprudence, (2) detention policy, and (3) criminal investigatory procedure. More specifically, I contend that, as a result of a decade of federal courts accommodating the government’s campaign against terror, the criminal justice system is beginning to resemble the very military tribunals that were once the antithesis of Article III courts. In Part II, I discuss how the federal judiciary’s perspective on habeas corpus review has shifted dramatically even since the beginning of the global war on terror. In Part III, I argue that recent court decisions and administrative agency actions have created an Article III-sanctioned indefinite detention system that is almost indistinguishable from Guantánamo Bay. In Part IV, I observe that courts have relaxed their threshold evidentiary requirements to a point that is strikingly similar to those of military tribunals. In short, courts are becoming military commissions that convict.

The second section addresses the location of Mohammad’s trial. This section begins by discussing Attorney General Eric Holder’s announcement on November 13, 2009 to move the trial of Mohammad to the United States District Court of the Southern District of New York. This section addresses public opposition to the decision and concludes with a discussion of Holder’s January 30, 2010 decision to reconsider the location of the trial.

Because the Obama Administration has yet to decide which venue to pursue, the third section considers the strengths and weakness of both options. In addition to the civilian or military trials, this section explores a third “hybrid” option: a national security court with jurisdiction over international terrorism issues.