2L Hastings to Publish Article in Marquette Elder’s Advisor Law Review

Hastings-22L Brett Hastings recently got the good news that an article he researched and wrote as a “self-imposed research and writing project” has been accepted for publication in the Spring 2014 edition of The Marquette Elder’s Advisor Law Review. In the interview below, he describes the process that led to the article’s creation and describes his reaction when he got an email offering to publish his work.

What is the theme of your article “Taxation without Limitation: The Prohibited Pretext Doctrine v. The Sebelius Theory?”

The article is an analysis of the Supreme Court ruling regarding the Affordable Care Act (ACA). The Article posits that the Supreme Court erred in its ruling by overlooking a well-established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post-Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, which I call the Sebelius Theory (taken from the name of the case, Nat’l Fed’n of Indep. Bus. v. Sebelius).  The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the government to exercise prohibited powers, so long as the law doing so is styled as a tax.

Describe the article’s origin. How long did it take to write and research, and how did your classes and professors at the College of Law help with that process?

The article’s origins coincided with the beginning of my 1L year. It was basically a self-imposed research and writing project. I had decided that during my first year at law school I wanted to pick a Supreme Court case, and write an article about it. The aim being to sharpen by writing and research skills. The Sebelius case seemed to be the perfect candidate. It was a recent and somewhat controversial ruling, and it included Constitutional issues that I would shortly be learning about.  Using the concepts being taught in both Legal Research and Legal Methods, I began conducting research on the ruling. Initially, I had no idea what the main thesis of the article would be; the research was just good practice. Over the following weeks and months I spent what time I could researching and writing down my thoughts. By the start of the second semester, I had decided to narrow the scope of the article and focus only on the individual mandate, since the Justices were sharply divided on that issue. The timing seemed perfect because my classmates and I were just starting Constitutional Law. The article piqued my interest in the class, and prompted me to ask a number of questions of Professor Keiter that were directly related to my research, and the formulation of my thesis. At one point, Professor Keiter was kind enough to answer some of my questions in his office, although I don’t believe he knew I was writing an article.

By the end of Spring Semester, I had the article mostly complete.  I kept tinkering  with the article through the summer months, and finally decided to call it “finished” in late August. In October I decided to submit the article to various law reviews. I figured I had nothing to lose. The article had turned out pretty good, and least in my estimation, and I hadn’t seen any article making the same arguments that I was putting forward. If no one picked it up, so be it. I would write another article.

What was your reaction when you got the good news?

Marquette was the first school to contact me. When I saw the email with the subject “Offer to Publish” I could hardly believe it. I was shocked, but very excited.  I had no idea what to do next. I emailed some of my classmates who where on Law Review to ask about the process. I wanted to at least sound like I knew what I was doing, when I talked with Marquette. After considering some offers from other universities, I emailed my acceptance to Marquette on October 31. I am looking forward to working with the Marquette editorial staff in preparing a final version for publication.