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In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years in the making: The Supreme Court has had to resolve numerous circuit splits over whether various state criminal convictions qualify as prior convictions for violent felonies under the Armed Career Criminal Act (ACCA), and Justice Scalia has been calling for the Court to invalidate the residual clause for the last few years.


Work published prior to Prof. Litman joining the MLaw faculty.