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After the Oral Argument in Moore v. Harper

Michael Weingartner and Carolyn Shapiro
54 U. Tol. L. Rev. (Forthcoming 2023)

The debate over the so-called “Independent State Legislature” theory is evolving. Early proponents of the theory largely rallied around what has been called the “strong” or “maximalist” version of the theory, which posits that state legislatures exercise plenary authority over both Congressional and Presidential elections, unconstrained by state constitutions. But some applications of that approach have already been rejected by the Supreme Court. Longstanding precedent provides, for example, that a state constitution’s lawmaking procedures apply to laws governing federal elections, even when those procedures incorporate actors besides the legislature. As a result, much of the discussion during the Moore v. Harper oral argument focused on whether those precedents could be distinguished in a way that allowed for a narrower form of the ISLT.

2023 Symposium Transcript: Election Gamesmanship

54 U. Tol. L. Rev. (Forthcoming 2023)

Election gamesmanship refers to the games played by parties and media during elections, including gerrymandering, myths or disinformation, voter suppression, and other phenomena. These are all interlinked ways of undermining the legitimacy of our elections. They impact historically marginalized communities, especially people of color. They impact election officials whose jobs have become more dangerous and they impact our ability to enjoy a functioning democracy. Toledo Law Review editors are proud to publish a transcript of legal experts discussing these matters and more at the Journal's 2023 Legal Symposium.

Double Tap on a Modernized Process of Voir Dire: Have We Lost the Impartial Juror in the Age of Social Media Algorithms?

Ziena Hatem
54 U. Tol. L. Rev. (Forthcoming 2023)

Innovation and technology are constantly changing, while voir dire remains stagnant. Social media algorithms are designed to maximize user engagement by mirroring our preferences. However, this mirror effect reinforces our opinions and has led to a society with stronger biases. Social media has created a world where the line between light impressions and strong impressions is far gone. Voir dire does not address the increase of individual prejudice compounded by social media algorithms, allowing biased jurors to make their way into our courtrooms. If the Sixth Amendment right to an impartial jury is to be preserved, the way we select jurors must be reconstructed.

Mind The Gap – When the Guidelines Lag Behind Statutory Amendments

Hope Luther
54 U. Tol. L. Rev. (Forthcoming 2023)

The United States Sentencing Guidelines were intended to promote “certainty and fairness in meeting the purposes of sentencing” and to reduce “unwarranted sentence disparities.” For a variety of reasons, the body that promulgates those guidelines, the United States Sentencing Commission has been functional for only a small portion of the last five years. This note will examine two recent examples of the uncertainty caused when the Guidelines fail to keep pace with statutory amendments.

Accessing the Secrets of the Secret Court: The Foreign Intelligence Surveillance Court and the First Amendment Right of Public Access

Thomas Rockhill
54 U. Tol. L. Rev. (Forthcoming 2023)

Over the past fifty years changes in global relations and advancements in technology have significantly changed the United States’ approach to national security. Amongst the significant changes is the way the United States conducts foreign intelligence surveillance while balancing the civil liberties and privacy rights of its citizens. Though some efforts have been made to give more weight to civil liberties, the balance with national security leaves much to be desired, especially in the realm of foreign intelligence surveillance. Indeed, seventy percent of Americans feel that their personal data is less secure than it was just five years ago. Perhaps more alarming is the fact that citizens are barred from viewing judicial determinations that effect the way in which the government conducts its surveillance. Thus, not only are citizens on the wrong end of the balancing scale, they are barred from getting an accurate view of the scale itself.

Evolving standard of decency: How Ohio House Bill 136 advances a nationwide prohibition on the execution of mentally ill criminal offenders

Michael Walton
54 U. Tol. L. Rev. (Forthcoming 2023)

In January 2021 Ohio lawmakers sent Governor Mike DeWine a bill that marked the most substantive change to Ohio’s death penalty in decades. House Bill 136 amended the state’s criminal code to bar the execution of offenders who suffered from serious mental illness at the time of their crimes. But more important than House Bill 136’s impact on the death penalty in Ohio is the role the legislation is likely to play in limiting an age-old practice that should be reserved only for society’s most abhorrent offenders. By prohibiting the execution of certain offenders who were mentally ill at the time of their crimes, House Bill 136 helps lays the groundwork for a long-overdue national prohibition on the execution of such offenders.

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