Swain v. Junior
The COVID-19 pandemic has had a catastrophic impact on incarcerated individuals and their families: nearly 390,000 incarcerated people have contracted the virus, and over 2,400 have died.246×246....
View ArticleConstitutional Waivers by States and Criminal Defendants
Where there is a right, there is (usually) a way to waive it.71×71. See, e.g., Jason Mazzone, The Waiver Paradox, 97 Nw. U. L. Rev. 801, 801 (2003) (pointing out that certain constitutional rights,...
View ArticleStudents for Fair Admissions, Inc. v. President & Fellows of Harvard College
In 2014, a nonprofit called Students for Fair Admissions (SFFA) sued Harvard University, alleging that its race-conscious admissions program discriminated against Asian American applicants.1×1. Anemona...
View ArticleAbortion as an Instrument of Eugenics
I. Throwing Down a Gauntlet Professor Melissa Murray is right about one thing. Laws banning trait-selection abortion — prohibitions on abortion when had solely because of the race, sex, or specific...
View ArticleOtto v. City of Boca Raton
Conversion therapy, also known as sexual orientation change efforts (SOCE), is the scientifically discredited practice of trying to change someone’s sexual orientation or gender identity.75×75. Am....
View ArticleUnited States v. Trice
Courts have long differentiated apartment living from single-family-home living. While those who live in single-family homes enjoy expansive Fourth Amendment protections against unreasonable searches...
View ArticleIn re Humphrey
Across the nation, people are arrested and detained pretrial solely because they lack the money to pay bail.1328×1328. Nationally, more than two-thirds of jail inmates (approximately half a million on...
View ArticleLeaders of a Beautiful Struggle v. Baltimore Police Department
The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”1256×1256. U.S. Const. amend. IV. In...
View ArticleOriginalism: Standard and Procedure
Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy,...
View ArticleOn Inkblots and Truffles
In Originalism: Standard and Procedure, Professor Stephen Sachs makes yet another important contribution to the literature. Sachs defends originalism by making its purpose more modest. Drawing on...
View ArticleKeeping Our Distinctions Straight: A Response to Originalism: Standard and...
Introduction Let’s start at the end, the very end. “If ‘[l]aw and philosophy are both in the distinction business,’” Stephen Sachs’s Originalism: Standard and Procedure concludes, “we ought to keep our...
View ArticlePower and Powerlessness in Local Government: A Response to Professor Swan
Are rural communities powerful or powerless? This question arises regularly in today’s national public and scholarly discourses. The collective interest in the issue of rural power stems in large part...
View ArticleUnited States v. Perez
Second Amendment litigation has flooded the lower courts in the wake of the Supreme Court’s 2008 ruling in District of Columbia v. Heller.893×893. 554 U.S. 570 (2008); see Eric Ruben & Joseph...
View ArticleThe Right to Be Free from Arbitrary Probation Detention
In 2010, the New York Police Department arrested sixteen-year-old Kalief Browder on suspicion of stealing a backpack.724×724. Jennifer Gonnerman, Before the Law, New Yorker (Sept. 29, 2014),...
View ArticleData Federalism
Private markets for individual data have received significant and sustained attention in recent years. But data markets are not for the private sector alone. In the public sector, the federal...
View ArticleEnforcement Lawmaking and Judicial Review
It is — and has long been — well known that the Executive’s power is expanding. To date, there are two dominant analyses of the judiciary’s role in that expansion: the judiciary is intrinsically too...
View ArticleTekoh v. County of Los Angeles
Perhaps no other Supreme Court rule is as “embedded in . . . our national culture”262×262. Dickerson v. United States, 530 U.S. 428, 443 (2000); see also Ronald Steiner, Rebecca Bauer & Rohit...
View ArticleAlasaad v. Mayorkas
Electronic-device searches at the border187×187. The “border” includes the physical border and its functional equivalents, including airports. Almeida-Sanchez v. United States, 413 U.S. 266, 273...
View ArticleThree’s Company, Too: The Emergence of Polyamorous Partnership Ordinances
In the summer of 2020, the city of Somerville, Massachusetts, passed the first multiple-partner domestic partnership ordinance in the country.1×1. Jeremy C. Fox, Somerville Recognizes Polyamorous...
View ArticleCampbell v. Reisch
As the “modern public square,”1×1. Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (2017). social media platforms have profoundly shaped today’s political discourse. All senators and...
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