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 …
Race in the Machine: Racial Disparities in Health and Medical AI
What does racial justice—and racial injustice—look like with respect to artificial intelligence in medicine (“medical AI”)? This Article offers that racial injustice might look like a country in which law and ethics have decided that it is …
Making Section 1983 Malicious-Prosecution Suits Work
The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, …
Ordinary Meaning and Plain Meaning
With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between …
Vagueness Avoidance
It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes that delegate enormous enforcement discretion to prosecutors and police officers. The constitutional void-for-vagueness doctrine promises to provide a …
First Amendment Disequilibrium
The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the …
20/20 Hindsight and Looking Ahead: The Vision of the Five Eyes and What’s Next in the “Going Dark” Debate
The so-called “encryption debate” made national headlines in 2016 after Apple Inc. (“Apple”) declined to enable the Federal Bureau of Investigation (“FBI” or “the Bureau”) to unlock an iPhone recovered from one of the shooters involved in a …
Cyber Vulnerabilities as Trade Secrets
Can a cybersecurity vulnerability—like a bug in code or a backdoor into a system—be a trade secret? Claiming a flaw as a trade secret may sound strange. Usually, talk of trade secrets conjures up images of scientists in laboratories or complex …
One Year Post-Bruen: An Empirical Assessment
In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon …
Editing Classic Books: A Threat to the Public Domain?
Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books …
The Zero-Sum Argument, Legacy Preferences, and the Erosion of the Distinction Between Disparate Treatment and Disparate Impact
In a complaint recently filed with the Department of Education, a group of civil rights organizations allege that Harvard University’s legacy preference unlawfully discriminates against minority applicants in violation of Title VI of the Civil …
Sex Discrimination Formalism
Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic …
Multi-Textual Constitutions
We have long been taught that constitutions are either “written” or “unwritten.” But this binary classification is wrong. All constitutions are in some way written, and all constitutions contain unwritten rules. This false distinction moreover …
Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework
Before Roe v. Wade was decided, the Board of Immigration Appeals (“BIA”) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could be removed from or …
The Federal Government’s Role in Local Policing
For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or …
Collateral Effects of Habeas Retrogression
Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are …
Suffering Before Execution
Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions …
Defeating the Empire of Forms
For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock-full of terms that courts will not, or should not, enforce. Most think that the market for …