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, …
Modus Operandi and Mindreading in Diaz v. United States
Witnesses with the requisite knowledge or expertise often present, as an opinion, their answer to a case’s “ultimate issue.” They may opine, say, that a product was unreasonably dangerous in a product liability suit, or that a patent was infringed …
Sovereigns’ Interests and Double Jeopardy
In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal …
Diversity by Facially Neutral Means
The decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFFA), invalidating the use of race in college admissions, reignites a pressing and critical question. Is the deliberate use of facially neutral means to achieve …
Frictionless Government and Foreign Relations
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus should sometimes trigger concern, not celebration. We call these worrisome situations “frictionless …
Presidential Adjudication
Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision-making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act …
The Case for City Reparations
Once a political boogeyman, calls for Black reparations as a means to advance racial justice in the United States have become increasingly earnest, particularly in the wake of George Floyd’s murder. But among those who view reparations as morally …
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 …