Expert Analysis

• 'True Threat' Ruling May Ensnare Kids' Online Speech

  

  The U.S. Supreme Court’s recent Counterman v. Colorado decision correctly held that a showing of intent is required to prosecute someone for true threats, but the amorphous standard adopted by the court risks overcriminalizing children’s use of social media and text-based communications, say Adam Pollet at Eversheds Sutherland and Suzanne La Pierre at Human Rights for Kids.

• More States Should Join Effort To Close Legal Services Gap

  

  Colorado is the most recent state to allow other types of legal providers, not just attorneys, to offer specific services in certain circumstances — and more states should rethink the century-old assumptions that shape our current regulatory rules, say Natalie Anne Knowlton and Janet Drobinske at the University of Denver.

• The Pop Culture Docket: Judge Elrod On 'Jury Duty'

  

  Though the mockumentary series “Jury Duty” features purposely outrageous characters, it offers a solemn lesson about the simple but brilliant design of the right to trial by jury, with an unwitting protagonist who even John Adams may have welcomed as an impartial foreperson, says Fifth Circuit Judge Jennifer Elrod.

• A Judge's Pitch To Revive The Jury Trial

  

  Ohio state Judge Pierre Bergeron explains how the decline of the jury trial threatens public confidence in the judiciary and even democracy as a whole, and he offers ideas to restore this sacred right.

• People In Prison Should Have Access To Digital Technology

  

  There are a number of reasons why people who are incarcerated should have access to digital communication technology — from facilitating reentry to saving lives in a future pandemic — but they need the means and the necessary legal protections to do so, say NYU Law student Suchy Kahlon and First Amendment attorney Dan Novack.

• Mallory Gives Plaintiffs A Better Shot At Justice

  

  Critics of the U.S. Supreme Court's recent decision in Mallory v. Norfolk Southern claim it opens the door to litigation tourism, but the ruling simply gives plaintiffs more options — enabling them to seek justice against major corporations in the best possible court, say Rayna Kessler and Ethan Seidenberg at Robins Kaplan.

• 5th Circ. Concurrence May Help Erode Qualified Immunity

  

  A Fifth Circuit judge’s recent concurrence in Rogers v. Jarrett, highlighting new legal scholarship that questions the historical foundations of the qualified immunity doctrine, provides the basis for additional arguments for plaintiffs to secure legal recourse when government officials violate their rights, says Brian Collins at Van Naarden Spizer.

• How Public Defenders Can Use Social Media To Drive Change

  

  In addition to their courtroom advocacy, indigent defenders should strategically use social media to develop a public voice that can counter police and prosecutor narratives, call attention to injustices and inspire policy shifts, say Russell Gold at the University of Alabama and Kay Levine at Emory University.

• Too Often, Use Of K-9 Units Is Cruel And Unusual Punishment

  

  In too many instances, the use of police dogs as weapons violates the Eighth Amendment's protections against cruel and unusual punishment, but as a long line of cases demonstrates, courts have largely failed to acknowledge the unconstitutionality of K-9 unit attacks, says Patrick Buelna at Lawyers for the People.

• Justices' Habeas Ruling Further Saps Writ Of Its Strength

  

  After the U.S. Supreme Court dealt its latest blow to the Great Writ in Jones v. Hendrix, holding that a provision called the “saving clause” cannot be used to file successive habeas petitions after a retroactive change in statutory law, Congress may need to amend the underlying law to ensure a more open habeas process, says Daniel Medwed at Northeastern University.

• Service Members Should Have Right To Unanimous Verdicts

  

  As several recent cases exemplify, service members can be convicted of crimes by nonunanimous juries in military courts and cannot appeal such verdicts, despite Supreme Court precedent from recent years — a glaring constitutional error that Congress should rectify expeditiously, says Kevin Carroll at Hughes Hubbard.

• Jail-Based Polling Places Are Key To Expanding Ballot Access

  

  As the 2024 elections begin to take shape, jurisdictions should consider jail-based polling locations to ease voting obstacles faced by incarcerated people, say former advocacy director Naila Awan and communications strategist Wanda Bertram at Prison Policy Initiative.

• A New HOPE For Expunging State-Level Cannabis Convictions

  

  As states across the U.S. legalize cannabis, individuals with related convictions face hurdles to expunging their records due to outdated record-keeping systems — but the recently introduced HOPE Act would remedy this by providing grant funding to state and local governments, says Rep. Dave Joyce, R-Ohio.

• Immigration Board Must Mend Choice Of Law Post-Garcia

  

  The Board of Immigration Appeals must revisit the choice of law standard recently established in Matter of Garcia, which fails to establish predictability, upsets the settled expectations of parties' remanded cases and unfairly tips the scale in the government's favor, says Monica Mananzan at the Capital Area Immigrants' Rights Coalition.

• Inside Immigration Court: The Pros, Cons Of Remote Hearings

  

  Technology introduced during the pandemic has improved the quality and efficiency of virtual immigration court hearings, but concerns still linger over the court system's ability to provide full and complete simultaneous interpretation in these hearings, as well as its effect on due process, says Immigration Judge Mimi Tsankov.