Care and Control in Collaborative Courts: Ethnographic Insights into Therapeutic Justice
Collaborative courts, such as drug courts, reentry courts, and veterans treatment courts, have long been hailed by reformers as therapeutic alternatives to the adversarialism of traditional criminal justice. Proponents argue that such courts embody …
Therapeutic Justice and the Problem of Penal Welfare
For decades, scholars and activists have decried the punitive turn in U.S. criminal policy and the rise of mass incarceration. Unsurprisingly, then, much ink has been spilled exploring alternative frameworks for responding to risk creation and …
Survivors’ Justice
Nearly a decade ago, the #MeToo movement surfaced deep failings in our criminal and civil legal systems. But the work of retrofitting these systems to meet the needs of victims remains largely incomplete. To that end, survivors’ conceptions of …
Wonderland Sentencing: Therapeutic Perspectives on Pretrial Provisional Sentences
In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts. The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards. Alice derides “[t]he idea of having the sentence …
Arbitration Exceptionalism
In Morgan v. Sundance, Inc., the Supreme Court addressed a question that has arisen frequently in recent years: If a party initially pursues litigation instead of immediately invoking the right to arbitrate pursuant to a contractual agreement, at …
Taming the Shadow Docket
The Supreme Court’s shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow …
Consent & Causation
In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed …
The Promise and Peril of Direct Democracy After Dobbs
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court deconstitutionalized the right to choose abortion, announcing that it was leaving the power to regulate abortion “to the people and their elected representatives.” In the wake of …
Faces of Formalism
Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success have come uncertainty and dissatisfaction. Formalists and their critics observe that …
A Public Calling for Private Employees
Two of society’s most important institutions face a crisis of legitimacy: regulatory agencies and corporations. Regulators are on the front lines guarding against climate change, technological upheaval, economic disasters, and other large-scale …
Crystals and Mud in International Taxation: Why the Principal Purpose Test’s Impact Will Not Meet Expectations
This Note takes a fresh look at the Principal Purpose Test (“PPT”), which has been added to over 2,300 bilateral tax treaties since 2015 in an effort to fight tax avoidance. Under the PPT, countries may deny treaty benefits—such as lower tax rates …
Striking the Peremptory Strike: Why There Is No Freestanding Constitutional Entitlement to Peremptory Challenges
The peremptory challenge—used by parties to remove prospective jurors without the need to provide a reason—has become one of the most controversial features of the modern American jury system. Despite Batson v. Kentucky’s promise to prohibit parties …
Oligopoly Squared: Federalism and the New Legal Landscape Tackling the Dark Web of Drug Pricing
The pharmaceutical industry’s billion-dollar practice of inflating drug prices and shielding itself from accountability has brought immense public outcry and inspired a profusion of legal reforms. But the precise dynamics that enable this ongoing …
Section 1981 as Contract Law
A civil rights secret hides in plain sight: a federal antidiscrimination statute, 42 U.S.C. § 1981, expresses foundational rules of contract law in the United States. Originating in the Civil Rights Act of 1866 and amended by the Civil Rights Act of …
The Practice of Executive Constitutionalism
The executive branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the executive’s constitutional authority, few believe the Constitution is only for the courts. But what …
Identical, Not Fraternal Twins: RLUIPA, RFRA, and Damages
The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Religious Freedom Restoration Act (“RFRA”) are commonly labeled “twin” or “sister” statutes. Both reinstall a strict scrutiny regime for religious accommodations, and …
Rethinking Youth Privacy
Congress and state legislatures are showing renewed interest in youth privacy, proposing myriad new laws to address data extraction, addiction, manipulation, and more. Almost all of their proposals, and youth privacy law in general, follow what we …
Disfavored Supreme Court Precedent in the Lower Federal Courts
There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron U.S.A. Inc. v. Natural Resources …
Void Judgments and “Reasonable Time”
Rule 60(b) of the Federal Rules of Civil Procedure authorizes federal district courts, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final judgment, order, or proceeding for” certain specified reasons. Rule …