Reevaluating School Policing
School police, often referred to as school resource officers (“SROs”), contribute to a pattern called the school-to-prison pipeline, through which Black and brown children are diverted from classrooms and into the criminal justice system. In schools …
Standing and Student Loan Cancellation
As the public policy debate over broad student loan cancellation continues, many have questioned whether the Executive Branch has the legal authority to waive the federal government’s claim to up to $1.6 trillion in debt. Some have argued that loan …
Lawmaking in the Legitimacy Gap: A Short History of the Supreme Court’s Interpretive Finality
Despite bestowing an epic name upon the nation’s highest tribunal, the Constitution says precious little about the weight that we must accord to its constitutional decisions. That silence has spawned serious division among jurists and scholars. Some …
The Runaway Presidential Power over Diplomacy
The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot …
Punitive Surveillance
Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as …
RFRA at the Border: Immigration’s Entry Fiction and Religious Free Exercise
RFRA and RLUIPA have greatly enhanced the religious free exercise rights of individuals, but it is not clear that all immigrants in detention in the United States are able to claim these protections. One lower court has applied the entry fiction …
The Banker Removal Power
The Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. …
Gender Differences in Law School Classroom Participation: The Key Role of Social Context
Even though women make up roughly half of the students enrolled in law school today, they do not take up roughly half of the speaking time in law school classes. “Speak Up” and similar studies that have been conducted at several law schools …
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 …