History and the School Prayer Cases
In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent …
Adapting Conservation Governance Under Climate Change: Lessons from Indian Country
Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis …
Reconstructing Citizenship
In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic …
Youth Participatory Law Scholarship
This Essay joins a formally trained legal scholar-practitioner with a grassroots youth activist and advocate to introduce the emerging subgenre of Youth Participatory Law Scholarship (“YPLS”). YPLS expands on the movement for Participatory Law …
Participatory Law Scholarship as Demosprudence
Through participatory law scholarship (“PLS”)—legal scholarship written in collaboration with those without formal legal training but expertise in law’s injustice through lived experience—Kempis Songster and Rachel López seek to dismantle the walls …
Foreword: Two Kinds of Participatory Legal Scholarship
Cross-pollination tends to improve legal writing. Examine an issue of a law review from fifty years ago and you will be struck at the stilted, inward-looking, formalistic, heavily-footnoted writing encapsulated in articles discussing other articles …
Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine
The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial …
Police Vigilantism
This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. …
Indiscriminate Data Surveillance
Working hand-in-hand with the private sector, largely in a regulatory vacuum, policing agencies at the federal, state, and local levels are acquiring and using vast reservoirs of personal data. They are doing so indiscriminately, which is to say …
In Tribute: Judge J. Harvie Wilkinson III
On the occasion of Judge J. Harvie Wilkinson’s fortieth year on the bench, these Essays honor his contributions to the U.S. Court of Appeals for the Fourth Circuit, to American law, and to the lives of his clerks and colleagues..
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 …
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 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 …