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 …
From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia
This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity. In the years after Brown, Virginia …
What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life
We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the …
Government Speech and First Amendment Capture
Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the …
Race, Ramos, and the Second Amendment Standard of Review
Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We …
Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police
Throughout the thirty years between the televised beating of Rodney King and the videotaped murder of George Floyd, recordings of police misconduct have given a face to the perpetrators and victims of police brutality. Given the accessibility of …
Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine
Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in …
Velvet Rope Discrimination
Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming …
The Law of Legislative Representation
Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, …
Trade Administration
At the core of public debates about trade policy making in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss …
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 …