Interpretive Lawmaking
For nearly 100 years, prevailing American legal thought has rejected the idea that there can be unwritten bodies of law that judges ascertain and apply just as they do written law. Instead, the story goes, the only preexisting sets of legal rules …
Shamed
Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of shaming sanctions and …
Partisan Emergencies
Executive emergency powers are tantalizingly effective. They allow presidents to bypass congressional gridlock, do away with procedural safeguards, and act decisively with minimal oversight. But there is a risk that these exceptional powers may …
Judicial Review of Emergency Powers in Banking and Financial Regulation
Banking and finance are arcane industries that often elude popular understanding, so courts, Congress, and the American public have largely delegated their regulation to federal agencies with considerable decision-making autonomy, affecting …
Victory: How a Lawyer, a Minister, and Twenty Professional Football Players Helped End Segregation in Virginia and Professional Sports
As Chapman Law Dean Matthew Parlow has noted, “[a]thletes in professional sports have long sought to use their platforms as celebrities to bring greater societal awareness to issues of social justice and racial inequality.” One of the clearest …
Constraining Legislative Expulsion
Every U.S. legislature, from the U.S. Congress to all fifty state legislatures, possesses the constitutional power to expel a member, a power that originated in English Parliament. As recently illustrated by the expulsions of two Tennessee …
Regulating Hidden AI Authorship
With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses …
Fines, Forfeitures, and Federalism
Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises …
The Fearless Executive, Crime, and the Separation of Powers
Trump v. United States’s discovery of broad immunity has rendered the presidency more imperial and unaccountable. This Article tackles four questions. First, are the Constitution’s grants of specific and distinct privileges and immunities for …
Medicaid Act Protections for Gender-Affirming Care
As of June 2024, ten states explicitly and categorically exclude coverage of gender-affirming care (“GAC”) for transgender Medicaid beneficiaries of all ages. Another two states exclude coverage for transgender minor beneficiaries but presumably …
Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause
Over the past five years, trans Americans have faced a number of intrusions on their rights. States across the country have enacted laws that “bar trans participation on sports teams, ban the use of bathrooms consistent with one’s gender identity, …
Gender During Pregnancy, and Abortion As Gender-Affirming Care
Pregnancy is an extremely gendered state in the United States. The physical ability to become pregnant is tied to biological, hormonal, and genetic factors associated with sex assigned at birth. But the societal and legal aspects of pregnancy are …
United States v. Rahimi: “We Do Not Resolve Any of Those Questions Because We Cannot”
Two years ago, the Supreme Court restructured Second Amendment jurisprudence in New York State Rifle & Pistol Ass’n v. Bruen. That decision created a historical test for Second Amendment challenges to firearm regulations. To be constitutional, …
Moore v. United States: Avoiding the Tough Questions
Charles and Kathleen Moore owed less than $15,000 due to the Mandatory Repatriation Tax (“MRT”), a tax enacted as part of the 2017 Tax Cuts and Jobs Act. While the economic consequences of the tax were relatively inconsequential for the Moores, …
Modus Operandi and Mindreading in Diaz v. United States
Witnesses with the requisite knowledge or expertise often present, as an opinion, their answer to a case’s “ultimate issue.” They may opine, say, that a product was unreasonably dangerous in a product liability suit, or that a patent was infringed …
Sovereigns’ Interests and Double Jeopardy
In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal …
Diversity by Facially Neutral Means
The decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFFA), invalidating the use of race in college admissions, reignites a pressing and critical question. Is the deliberate use of facially neutral means to achieve …
Frictionless Government and Foreign Relations
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus should sometimes trigger concern, not celebration. We call these worrisome situations “frictionless …
Presidential Adjudication
Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision-making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act …
The Case for City Reparations
Once a political boogeyman, calls for Black reparations as a means to advance racial justice in the United States have become increasingly earnest, particularly in the wake of George Floyd’s murder. But among those who view reparations as morally …