A Case of Mistaken Authority: Reconciling Illinois v. Rodriguez, Originalism, and the Common Law
In the last few decades, the Supreme Court has largely turned to a history-based, originalist approach to the Fourth Amendment. Many scholars have been quick to laud the change, criticize the methodology, or argue their views of the historical …
Internet Technology Companies as Evidence Intermediaries
Search warrants, subpoenas, and other forms of compulsory legal process are essential for legal parties to gather evidence. Internet technology companies increasingly control wide-ranging forms of evidence, yet little is known about how these …
A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision …
The “New” Drug War
American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the …
The Founders’ Purse
This Article addresses a grave originalist misstep in the new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the U.S. Court of Appeals for the Fifth Circuit held that …
Consent and Compensation: Resolving Generative AI’s Copyright Crisis
Generative artificial intelligence (AI) has the potential to augment and democratize creativity. However, it is undermining the knowledge ecosystem that now sustains it. Generative AI may unfairly compete with authors, journalists, and other …
How to Think About the Removal Power
In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and …
Expanding Democracy: The Case for Enfranchising Noncitizens in Local Elections
In the wake of recent state-led movements to restrict voting rights in the United States, New York City passed a law expanding local voting rights. Intro 1867-A defines municipal elections as the “designation, nomination[,] and election process for …
Standing Shoulder Pad to Shoulder Pad: Collective Bargaining in College Athletics
Responding to the professionalization of their billion-dollar industry, college athletes have embraced collective bargaining as an avenue for addressing their grievances with universities and the National Collegiate Athletics Association (NCAA). The …
The Impermissibility of Sex as a Voter Qualification
Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender …
Importance and Interpretive Questions
In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of …
Sacred Easements
In the last forty years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. When confronting threats to sacred lands, Native Americans stridently assert constitutional and statutory free …
A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law
In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private …
Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue
This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for …
Detained Immigration Courts
This Article traces the modern development and institutional design of detained immigration courts—that is, the courts that tie detention to deportation. Since the early 1980s, judges in detained immigration courts have presided over more than 3.6 …
Separation of Structures
In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. …
Constitutional Rights and Remedial Consistency
When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the …
The Right to Remain Protected: Upholding Youths’ Fifth Amendment Rights After Vega v. Tekoh
In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983. Experts predict that this decision will …
Becoming the “Bill of Rights”: The First Ten Amendments from Founding to Reconstruction
The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be …
The Education Power
Public officials are increasingly warring over the power to set fundamental education policies. A decade ago, disputes over Common Core Curriculum and school choice programs produced a level of acrimony between policymakers not seen since school …