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Articles 1 - 7 of 7
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Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore
Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore
Faculty Scholarship
Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. Justice Alito repeated this argument in Dobbs v. Jackson Women’s Health. Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption …
Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll
Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll
Faculty Scholarship
Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …
Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran
Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran
Faculty Scholarship
Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …
Pro-Choice Plans, Brendan S. Maher
Pro-Choice Plans, Brendan S. Maher
Faculty Scholarship
After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of …
A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker
A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker
Faculty Scholarship
From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.
The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …
Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran
Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran
Faculty Scholarship
Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so …
The Disembodied First Amendment, Nathan Cortez, William M. Sage
The Disembodied First Amendment, Nathan Cortez, William M. Sage
Faculty Scholarship
First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …