Feminist Legal History and Legal Pedagogy
Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as …
The Contextual Case Method: Moving Beyond Opinions to Spark Students’ Legal Imaginations
A new student arrives at law school for her 1L year. She knows it sounds corny, but she’s here to make the world a better place. She’s seen injustice and tragedy (George Floyd, Parkland, climate change). She’s protested with Black Lives Matter and …
The Gender Participation Gap and the Politics of Pedagogy
“Speak Up” and similar studies documented something that many thought they already knew about large law school classes: Male students talk a heck of a lot more than female students do. A recent study of the University of Virginia School of Law adds …
Foreword
This symposium about the future of legal pedagogy could not be more timely. Its four thought-provoking papers raise a constellation of questions about how law schools educate lawyers and toward what purposes. These papers describe and assess the …
Civil Rights, Employment Law
Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law
In the summer of 2020, the Supreme Court decided the blockbuster case Bostock v. Clayton County, holding that Title VII prohibits employment discrimination on grounds of sexual orientation and gender identity. The opinion, authored by Justice Neil …
Some Notes on Courts and Courtesy
This Essay is a short reflection on misgendering by judges, told through a critical assessment of three cases from the Fifth and Eighth Circuits: Gibson v. Collier, United States v. Varner, and United States v. Thomason. In the trio, judges refused …
The But-For Theory of Anti-Discrimination Law
Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as …
Excited Delirium and Police Use of Force
Excited delirium is often described as a psychiatric illness characterized by a sudden onset of extreme agitation, confusion, and aggression that can make people irrationally combative and dangerous. Since its inception in the 1980s, this medical …
The Lost Judicial Review Function of the Speech and Debate Clause
The prevailing understanding of the Speech or Debate Clause of the United States Constitution is that it was transplanted without significant modification from Article 9 of the English Bill of Rights of 1689. This Note challenges that view by …
Liberalism and Disagreement in American Constitutional Theory
For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and …
Universal Injunctions: Why Not Follow the Rule?
Over the last several years, a debate has flared up over universal injunctions, court orders that purport to benefit individuals across the nation, including vast numbers of people not party to the litigation from which the injunction issues. …
Black Women’s Hair and Natural Hairstyles in the Workplace: Expanding the Definition of Race Under Title VII
interpretation of Title VII as including cultural characteristics often associated with race or ethnicity, Black women have not successfully litigated the freedom to wear their hair in natural hairstyles in the workplace. Courts have held that …
Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions
The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people …
Where Nature’s Rights Go Wrong
There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights …
The Chimerical Concept of Original Public Meaning
This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward …
Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders
A decade on, legislatures are still coming to terms with the reach of Citizens United. In a novel push to cabin the effects of the opinion, legislatures have passed or are seeking to pass regulations that raise the specter of foreign intervention in …
How Litigation Imports Foreign Regulation
Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom’s National Health Services, to the Japanese Fair Trade Commission and the European …
Propertizing Fair Use
In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. …
From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People
In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring …
Interpreting Injunctions
Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt. Despite the …