Lessons from <i>Lawrence</i>: How “History” Gave Us...
Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court...
View ArticleThe History of History and Tradition: The Roots of...
In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay...
View ArticleThe History of Neutrality: <i>Dobbs</i> and the Social-Movement...
By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and...
View ArticleThe Right to Amend State Constitutions
This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional...
View ArticleNavigating Between “Politics as Usual” and Sacks of Cash
Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a...
View ArticleState Implementation of the Electoral Count Reform Act and the Mitigation of...
The ECRA is a major step toward preventing future election subversion. But since states and localities administer elections, its success depends on state compliance. This Essay details how states...
View ArticleDe-judicialization Strategies
Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding...
View ArticleJudging Debt: How Judges’ Practices in Consumer-Credit Court Undermine...
This Essay draws from on-the-ground interviews and procedural-justice theory to analyze judging practices in debt-collection courts. Current practices undermine courts’ fairness and legitimacy. This...
View ArticleRemedies and Incentives in Presidential Removal Cases
In Separation-of-Powers Avoidance, Z. Payvand Ahdout reconceptualizes a bevy of separation-of-powers precedents as judicial avoidance. But one of the cases she cites as a foil—Seila Law LLC v. Consumer...
View ArticleThe Continued (In)visibility of Cyber Gender Abuse
This Essay highlights the continued invisibility of cyber gender abuse. The Supreme Court in Counterman v. Colorado regrettably exacerbated this problem. Now is time to reignite the discussion around...
View ArticleDeplatforming
This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers,...
View ArticleIn Loco Reipublicae
This Article proposes a new framework for children in constitutional law that recognizes children’s rights as developing citizens and parents’ duties to safeguard those rights. An examination of...
View ArticlePractice-Based Constitutional Theories
This Feature provides the first full-length and most in-depth analysis of practice-based constitutional theories to date. It identifies and examines the primary justifications offered for such theories...
View ArticleSeeking Equity in Electronic Monitoring: Mounting a...
In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for...
View ArticleEstablishment as Tradition
Traditionalism holds that enduring practices are the presumptive determinants of constitutional meaning and law. This Essay examines two questions: Why has traditionalism had special salience in...
View ArticleFreedom <i>for</i> Religion
The First Amendment’s religious-freedom provisions are best understood as protecting “freedom for religion”—religious liberty for the benefit of religion, for generous protection of its free exercise...
View ArticleReplacing <i>Smith</i>
As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in revisiting aspects of Employment Division v. Smith. This...
View ArticleThe End of Asylum Redux and the Role of Law School Clinics
The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then...
View Article“We Do No Such Thing”: <i>303 Creative v. Elenis</i> and the...
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are...
View ArticleAgainst Bankruptcy: Public Litigation Values Versus the Endless Quest for...
For the first time in years, in the Purdue Pharma opioids litigation, the Court is reviewing an unorthodox bankruptcy maneuver aimed at securing global settlement. This Essay critiques corporate...
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