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Volume 108 —
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 …
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 …
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 …
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 …
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 …
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 …
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 …
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 …
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 …
Antideference: COVID, Climate, and the Rise of the Major Questions Canon
Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s …
A Corpus Linguistic Analysis of “Foreign Tribunal”
In March, the United States Supreme Court heard a case involving the issue of whether a private arbitration panel in another country is covered by the statutory phrase “foreign or international tribunal.” The statutory language, enacted in 1964, …
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 …
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 …
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 …
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 …
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, …
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 …
Volume 107 — 2021
Foreword
If a foreword were to be limited to one word, and one word only, this foreword’s one word would be joy. It is a joy to introduce to you a diverse group of authors and their writings on the past, present, and future of a social justice movement that …
A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power
In January 2020, Virginia became the thirty-eighth and final state needed to ratify the Equal Rights Amendment (“ERA”). Because Virginia’s ratification—and those of Nevada and Illinois —occurred four decades after Congress’s ratification deadline, …
Shaping Our Freedom Dreams: Reclaiming Intersectionality Through Black Feminist Legal Theory
Black feminist legal theory has offered the tool of intersectionality to modern feminist movements to help combat interlocking systems of oppression. Despite this tremendous offering, intersectionality has become wholly divorced from its Black …
Termites in the Master’s House: Abortion Rap and Florynce Kennedy’s Contributions to Racial and Gender Justice
Contemporaries recognized Kennedy as “an outspoken activist for the rights of African Americans, women, sex workers, and members of the LGBT community.” In this way, Kennedy united social movements with divergent agendas. She believed that only …
Bostock’s Inclusive Queer Frame
Bostock v. Clayton County is the Supreme Court’s first major decision on gay rights written since Justice Kennedy’s retirement. It is a victory for the LGBT community—a momentous one. But this Essay argues that Bostock is even more momentous than …
Mail-In Ballots and Constraints on Federal Power Under the Electors Clause
Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. …
Remedying Police Brutality Through Sentencing Reduction
Police brutality is a widespread problem that causes significant physical and psychological trauma, undermines faith in the law, and disproportionately impacts communities of color. Existing remedies to police brutality—including civil suits for …
Why BIPOC Fails
Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice. …
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 …
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 …
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 …
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 …
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 …
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 …
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. …
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 …
Volume 106 — 2020
Bound Electors
In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,” the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular …
Self-Portrait in a Complex Mirror: Reflections on The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens
Immediately after his death last year, Justice John Paul Stevens received a number of moving eulogies, several by former law clerks published in the Harvard Law Review, along with a tribute from Chief Justice Roberts..
Education, Racial Legal Theory
Restoring Honor: Ending Racial Disparities in University Honor Systems
In student-led academic honor systems, students establish policies governing lying, cheating, or stealing (referred to as “academic misconduct”); adjudicate reports of academic misconduct among their peers; and determine appropriate sanctions..
Pandemics, Risks, and Remedies
The coronavirus (“COVID”) pandemic exposed America’s brittle reliance on incarceration as means of promoting justice and social welfare. For each criminal detention site, a single prisoner infection ultimately threatened the entire institutional …
Essentially Elective: The Law and Ideology of Restricting Abortion During the COVID-19 Pandemic
The COVID-19 pandemic has put on full display the physical and doctrinal isolation of abortion from health care more generally. In early 2020, several states proclaimed that abortions had to be stopped or delayed for lengthy or indefinitely.
Blackness as Fighting Words
Where I grew up, the wrong words could turn an innocent sparring match of playground taunts and after-school gibes into a full-out asphalt brawl. Naïve boys enacting popular tropes of Black hypermasculinity, we would often form a circle around the …
Volume 105 — 2019
Foreword: Facebook Unbound?
Facebook’s Alternative Facts
Criminal-Justice Apps: A Modest Step Toward Democratizing the Criminal Process
Law Enforcement’s Pairing of Facial Recognition Technology with Body-Worn Cameras Escalates Privacy Concerns
Hacking the Right to Vote
Commuting to Mars: A Response to Professors Abraham and Rabin
The Future is Almost Here: Inaction is Actually Mistaken Action
Self-Policing: Dissemination and Adoption of Police Eyewitness Policies in Virginia
Paved in Good Intentions: The Venerable Aims and Unique Vulnerabilities of Purportedly Independent Committees
Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin
Letter to the Editor: Remembering Charlottesville 2017 and Engaging Black-Jewish Alliances
Foreword: Tinker at 50
The Great Unfulfilled Promise of Tinker
Fill in the Blank: Compelling Student Speech on Religion
Walking Out the Schoolhouse Gates
The Miseducation of Free Speech
Volume 104 — 2018
Foreword
Rethinking the Heckler’s Veto After Charlottesville
Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests
Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal
When White Supremacists Invade a City
The Living Anti-Injunction Act
Underwrites, Overrides, and Recovered Precedents
Regulation and Deregulation: The Baseline Challenge
Antitrust’s Unconventional Politics
Agency Design and the Zero-Sum Argument
Volume 103 — 2017
Common Law vs. Statutory Bases of Patent Exhaustion
Reorganizing Organizational Standing
Copyright Owners’ Putative Interests in Privacy, Reputation, and Control: A Reply to Goold
Presidents Lack the Authority to Abolish or Diminish National Monuments
The Rule of Recognition in Reconstruction: A Review of Secession on Trial: The Treason Prosecution of Jefferson Davis, By Cynthia Nicoletti
Act-Sampling Bias and the Shrouding of Repeat Offending
Volume 102 — 2016
A Modest Proposal for Justice Scalia’s Seat
The Interaction of Exhaustion and the General Law: A Reply to Duffy and Hynes
Patent Exhaustion and Federalism: A Historical Note
One Last Word on the Blackstone Principle
Changing the Face of Urban America: Assessing the Low-Income Housing Tax Credit
Pragmatism and Principle: Intelligence Agencies and International Law
Discrimination is a Comparative Injustice: A Reply to Hellman
Data Privacy and Inmate Recidivism
Defending Two Concepts of Discrimination: A Reply to Simons
What’s Wrong with Sentencing Equality? Sentencing Legality: A Response to Professors Bierschbach & Bibas
RJR Nabisco and the Runaway Canon
Retooling the Amicus Machine
Crowdfunding and the Not-So-Safe SAFE
Volume 101 — 2015
Bad Actors and the Evolution of Patent Law
Historically high levels of abusive patent enforcement fuel an ongoing debate on the need for legislative and judicial reforms designed to deter bad faith conduct by patent holders. To date, this debate has focused intently on the direct monetary …