A Prelude to a Critical Race Theoretical Account of Civil Procedure
In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized …
Taxing Nudges
Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often …
Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law
Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat …
Invoking Criminal Equity’s Roots
Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and …
Interpretive Entrepreneurs
Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official …
Why BIPOC Fails
Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice. …
Remedying Police Brutality Through Sentencing Reduction
Police brutality is a widespread problem that causes significant physical and psychological trauma, undermines faith in the law, and disproportionately impacts communities of color. Existing remedies to police brutality—including civil suits for …
Mail-In Ballots and Constraints on Federal Power Under the Electors Clause
Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. …
The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government
In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place. One of his parishioners, James Keating, had reported a theft of jewelry to the police. Later, Keating withdrew his …
Vagueness Attacks on Searches and Seizures
The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect …
Nondelegation and Criminal Law
Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these …
The Corrective Justice Theory of Punishment
The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the …
Can the Reasonable Person Be Religious? Accommodation and the Common Law
Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general …
Settled Law
“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial …
Conflict Avoidance in Constitutional Law
Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as …
The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95
What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential …
Foreword
If a foreword were to be limited to one word, and one word only, this foreword’s one word would be joy. It is a joy to introduce to you a diverse group of authors and their writings on the past, present, and future of a social justice movement that …
Bostock’s Inclusive Queer Frame
Bostock v. Clayton County is the Supreme Court’s first major decision on gay rights written since Justice Kennedy’s retirement. It is a victory for the LGBT community—a momentous one. But this Essay argues that Bostock is even more momentous than …
Termites in the Master’s House: Abortion Rap and Florynce Kennedy’s Contributions to Racial and Gender Justice
Contemporaries recognized Kennedy as “an outspoken activist for the rights of African Americans, women, sex workers, and members of the LGBT community.” In this way, Kennedy united social movements with divergent agendas. She believed that only …
Shaping Our Freedom Dreams: Reclaiming Intersectionality Through Black Feminist Legal Theory
Black feminist legal theory has offered the tool of intersectionality to modern feminist movements to help combat interlocking systems of oppression. Despite this tremendous offering, intersectionality has become wholly divorced from its Black …