Government’s Religious Hospitals
States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the …
Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches
The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does …
State Abortion Bans: Pregnancy as a New Form of Coverture
In June, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization holding that there was no constitutional right to an abortion, the Court was hasty to disavow any likely political consequences. “We do not pretend …
The Small and Diversifying Network of Legal Scholars: A Study of Co-Authorship from 1980–2020
This Essay reports the first comprehensive network analysis of legal scholars connected through co-authorship. If legal scholarship was ever a solitary activity, it certainly is not any longer. Co-authorship has become increasingly common over time, …
Criminal Violations
Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a …
Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults
The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, …
White Injury and Innocence: On the Legal Future of Antiracism Education
In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased …
Defining “Substantial Burdens” on Religion and Other Liberties
The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the …
A Silver Lining to Russia’s Sanctions-Busting Clause?
In 2018, Russia began inserting an unusual clause into euro and dollar sovereign bonds, seemingly designed to circumvent future Western sanctions. The clause worked by letting the government pay in roubles if sanctions cut off access to dollar and …
On Rawlsian Contractualism and the Private Law
Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different …
The Promise and Perils of Private Enforcement
A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent …
Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered
The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two …
Federalism, Private Rights, and Article III Adjudication
This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have …
Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution
Each year, more than ten thousand people are imprisoned by federal courts without being charged with a crime, indicted by a grand jury, or found guilty beyond a reasonable doubt by a jury of their peers. Those results are authorized by federal …
On Rawlsian Contractualism and the Private Law
Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different …
Circuit Personalities
The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety …
Criminal Law Exceptionalism
For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of …
A Third-Party Beneficiary Theory of Corporate Liability for Labor Violations in International Supply Chains
Large multinational corporations (“MNCs”) profit off their suppliers’ maintenance of sweatshop conditions in developing countries. Although some companies have responded to reputational pressure by taking nominal steps to improve working conditions, …
On Lenity: What Justice Gorsuch Didn’t Say
Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War …
The Common Law of Interpretation
Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian …