Harmonizing Federal Immunities
This Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system. It ties the Court’s shift in federal tax immunity to a broader philosophical …
Qualitative Market Definition
Modern antitrust law has come under intense criticism in recent years, with a bipartisan chorus of complaints about the power of technology and internet platforms such as Google, Amazon, Facebook, and Apple. A fundamental issue in these debates is …
Disclosing Corporate Diversity
This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this …
Property against Legality: Takings after Cedar Point
In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the …
Addressing the School-to-Prison Pipeline Through Three Nontraditional Pathways
Analogous to Nathaniel Hawthorne’s critique of his leaders’ decision to use punishment as a sign of public accountability, and his adoption of the phrase “the black flower of civilized society” to describe the prison, our leaders in the White House, …
The Federal Role in School Funding Equity
Fifty years after the San Antonio Independent School District v. Rodriguez decision, the fundamental reality of school finance inequity remains a central feature of American public schools. Local school funding is still based primarily on local …
The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law
If nothing else, the recent decision in Dobbs v. Jackson Women’s Health Organization should remind us that the evolution of constitutional doctrine will often be shaped by forces that have little or no connection to the merits of the abstract legal …
Foreword: We Have Only Begun to Fight
This story begins with one parent who took his demands for equal educational opportunity for his children all the way to the highest court of our land. Demetrio Rodriguez served our nation in World War II and the Korean War. Yet, back in Texas, his …
Severability First Principles
The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. …
Property’s Boundaries
Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property …
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 …