Free Speech as White Privilege: Racialization, Suppression, and the Palestine Exception
Free speech is under siege. This is not to say that all speakers and viewpoints are at equal risk—some voices receive support and protection, while others are subject to threats and suppression. Pro-Palestinian speech falls into the latter category. …
The Unenumerated Power
Scholars and courts have long viewed unenumerated powers and rights as constitutionally dubious. This skepticism has produced far-ranging effects: most recently, it has undergirded the Supreme Court’s invalidation of privacy rights. Many others have …
Solitary Confinement, Human Dignity, and the Eighth Amendment
The harms of solitary confinement have been well-documented for centuries, yet the practice persists. Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people remain confined in solitary …
An Alternative to Constraining Judges with Constitutional Theories: The Internal Goods Approach
Concerns about judges using their own personal moral beliefs in deciding cases, the difficulty in weighing competing moral principles in America’s liberal and pluralist society, and concerns about judges reaching an opinion under only the guise of …
Abortion’s New Criminalization—A History-and-Tradition Right to Health-Care Access After Dobbs
Since Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade as contrary to the nation’s history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the …
The Radical Fair Housing Act
This Article uncovers the radical logic at the core of the Fair Housing Act (“FHA”). It is a law which can question and remake the underlying structure of housing markets, not just police individual transactions within those markets. The FHA is …
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, …