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When Constitutional Protection For Religious Liberty Gets Lost In Translation: A Case Study From Washington State, Robert W. Gomulkiewicz

Articles

Protecting religious liberty can present difficult challenges when religious liberty conflicts with laws prohibiting discrimination. Balancing religious liberty and nondiscrimination requires courts to accurately apply the U.S. Supreme Court’s complex First Amendment jurisprudence, including cases that address compelled speech, expressive association, and church autonomy. Amidst all the complexity, protection for religious liberty can get lost in translation. One important venue where protection can get lost in translation is in religious liberty cases decided by state supreme courts. The decisions of state supreme courts are especially significant because they provide the authoritative construction for state statutes and the state constitution. In …

Comparative Authoritarian Law, Madhav Khosla, Benjamin L. Liebman

Faculty Scholarship

In recent years, comparative constitutional lawyers have turned their attention to the study of democratic backsliding. However, such scholarship is yet to draw on the now extensive literature on traditional authoritarian systems. The bifurcation of regime type that has structured comparative legal research for decades — for comparative constitutional lawyers and for scholars of specific authoritarian regions — is now under strain. With the global rise of authoritarianism and the growing use of law by authoritarian states, the world is harder to neatly separate into two camps than it once might have been. This Article reflects on how we might …

The Untold Story Of 150 Years Of Women In State Judiciaries, Elizabeth D. Katz

UF Law Faculty Publications

A focus on the U.S. Constitution and federal judges has obscured a longer and more complex history of women serving on state benches — and how state constitutions mattered in their rise.

Winnowing The Wheat From The Chaff: The Continuing Controversy Over Article Iii Standing And The Certification Of Rule 23(B)(3) Damages Classes Containing "Uninjured" Members, William G. Beatty

William & Mary Business Law Review

The controversy surrounding the inclusion of uninjured class members in Rule 23(b)(3) damages classes has deeply divided the federal circuit courts of appeals and continues to do so. This Article explores the constitutional roots of the issue, beginning with the foundational element of Article III standing, and discusses the question of how many uninjured members, if any, Rule 23 permits in a class seeking certification before problems with commonality and predominance arise.

The Article discusses the details of the Laboratory Corp. of America v. Davis case (LabCorp), which, in the spring of 2025, presented the Supreme Court with …

The Exactions Illusion: Sheetz’S Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Faculty Scholarship

In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct.  It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s …

A Citizenship Model Of The Fourth Amendment, Danieli Evans

Articles

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for …

Is History Precedent?, Allison Orr Larsen

Faculty Publications

It has been just over three years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition. And it is no secret that the courts have struggled. This Article tackles a phenomenon that is born of that struggle. Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history. They are using what I call in this Article “historical precedents”—meaning language about history from an older decision that the subsequent judge then treats as authority, not as part of a legal rule but for …

Finding Luis: A Creative Nonfiction Account Of Law & Society, Jason M. Leggett

Dissertations, Theses, and Capstone Projects

This essay explores the contradictions in legal theory and human experience through creative nonfiction. Its main purpose is to argue that a truly just society requires acknowledging the profound influence of individual narratives on the law. This is supported by blending personal narratives, critical analysis, and philosophical inquiry to reveal the gap between codified law and lived realities for marginalized individuals. This unique Legal Poetics methodology employs a series of six vignettes, such as the author's and Luis's shared experiences with traumatic brain injury and the denial of justice, as data. By integrating autoethnography, law as narrative, and performativity theories, …

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, I identify another effect of originalism: the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law; I argue that originalism …

Drug Scheduling As Institutional Design, Matthew B. Lawrence, David E. Pozen

Faculty Scholarship

Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA’s institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call …

Constitutional Interpretation As Problem Solving: How The Modalities Work, Jack M. Balkin

Texas A&M Law Review

The standard forms of constitutional argument—the modalities—are central to one of the most important approaches to constitutional interpretation: constitutional pluralism. Both originalists and non-originalists use the modalities. This Essay explains how they work. The modalities of constitutional argument are shared cultural tools for thinking about the Constitution, analyzing legal problems, and formulating arguments to resolve them. Constitutional interpretation is a kind of problem solving, and the modalities are our legal culture’s toolkit for analyzing and solving constitutional problems.

Our use of the modalities presumes that at any point in time, some arguments are better than others. This assumption is central …

Originalist Arguments In Free Speech History, Samantha Barbas

Texas A&M Law Review

Contrary to what historians and legal scholars have often assumed, originalism has played an important role in American free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of these arguments was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anti-Communist measures. They argued that the original meaning and purpose of the First Amendment was the ban on punishment for criticism of the government, and …

Race, Memory, And Authority In Constitutional Interpretation, Henry L. Chambers, Jr.

Texas A&M Law Review

This Essay considers how America’s history and memory regarding race complicate constitutional interpretation. If scholars interpreted the Constitution merely to determine what the majority view of the Constitution may have been when it was ratified—its original public meaning (“OPM”)—the loose use of history and memory to interpret the Constitution might be acceptable. What the People—whose membership is contested—thought the Constitution meant when it was framed is interesting, so long as it does not bind us today. However, as Jack Balkin notes in Memory and Authority: The Uses of History in Constitutional Interpretation, lawyers and judges attempt to use history …

Memory Warriors, Pluralists, And Abnegators In Constitutional Interpretation: An Essay On Jack Balkin's Pluralist Originalism In Memory And Authority, Jed Handelsman Shugerman, Zachary Shugerman Handelsman

Texas A&M Law Review

One of the most compelling and generative aspects of Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation is its synthesis of constitutional theory, history, and the growing field of the “politics of memory,” and especially the concept of the “memory entrepreneur.” The book project itself is entrepreneurial, if you will, in its cultivating, connecting, and building from different disciplines, academic languages, and national narratives (in that the “politics of memory” is already such an international and interdisciplinary field itself).

Roger Taney, Memory Entrepreneur, Anne Twitty

Texas A&M Law Review

Roger Taney’s infamous “opinion of the court” in Dred Scott v. Sandford (1857), which rejected the possibility that Black Americans could ever be citizens of the United States, was rooted in the authority of the past.

But Taney’s account of that past has been a source of criticism ever since the decision was rendered.

To be sure, there was plenty to complain about. Many, though certainly not all, have taken issue with Taney’s narrative of the making of the United States Constitution and its attendant meaning, critiquing both Taney’s understanding of the Union and his insistence that the Constitution was, …

Memory And Authority Of Failed Constitutional Amendments, Julie C. Suk

Texas A&M Law Review

When the original public meaning of any constitutional provision is enforced, guarantees of rights that were adopted before women were included in legal rights may appear illegitimate and inadequate for a 21st-century democracy. Originalists have long pointed to Article V amendment as the legitimate path to changing the Constitution. Jack Balkin’s Memory and Authority points to the importance of expanding American constitutional memory if women and minorities are to be included in the transhistorical “We the People.” This Essay illustrates how the memory and authority of failed constitutional amendments can challenge originalists’ reliance on amendment as the path to democratically …

Balkin Amid Balkanization: Constitutional Construction, The Uses Of History, And Interpretive Discretion In A Divided Country, Neil S. Siegel

Texas A&M Law Review

Professor Jack Balkin’s Memory and Authority is a good book by a great constitutional theorist, but it gives me some pause. Balkin’s account of legitimate constitutional construction is so capacious and seemingly accepting of a results orientation that it may be difficult to discern when someone is doing it wrong. Balkin repeatedly implies that more is better, both regarding the number of modalities of constitutional interpretation and the kinds of history that are relevant to making constitutional arguments. Moreover, he repeatedly declares that “history is a resource and not a command.” But modality creep may make it more challenging for …

Historical Methods Of Constitutional Interpretation And Political Gradations, Nelson Tebbe

Texas A&M Law Review

In this symposium Essay, I explore the hypothesis that as constitutional politics have become more assertive, historical methods of interpretation have become more prominent. In other words, the claim I would like to test is that the intensification of constitutional politics and the prominence of historical argument are correlated. Moreover, the relationship between the two appears to be linear. As arguments become bolder, they are more likely to deploy history as a method of interpretation. That proposition may seem counterintuitive, and it is intriguing.

Hermeneutics In History, John Fabian Witt

Texas A&M Law Review

Lawyers sometimes ask about the place of history in legal or constitutional interpretation. Historians typically ask a different question. The historians’ inquiry is more often about the place of a phenomenon, like interpretation in history, not vice versa. Constitutional interpretation is itself a historical practice, with particular, changing, and contingent political structures. It is driven by relatively autonomous forces such as war, natural disaster, social mobilizations, migrations and exclusions, economic transformations, and more, all of which shape and condition lawyers’ interpretive projects. If we put interpretation in history, rather than the other way around, then interpretation and (by extension) constitutional …

Why Constitutional Argument Matters, Philip Bobbitt

Texas A&M Law Review

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis—the system of …

Burns (Gregory) V. Eighth Judicial Dist. Ct. (Doe) (Civil), 142 Nev. Adv. Op. 8 (Jan. 29, 2026), Charnel Gibson

Nevada Supreme Court Summaries

The Nevada Supreme Court adopted a balancing test for pseudonymous civil cases. Because the sexual-assault plaintiff’s privacy outweighed any prejudice and the public interest, the Court denied mandamus relief.

Bauer Lecture 2026, Cardozo Law Review

2025–2026 Flyers

Join us for a keynote address by Michael Waldman, President and CEO of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems  of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform and constitutional law.

What Motivates Selectors To Pick A Woman Justice?, Maria C. Escobar-Lemmon, Alice J. Kang, Miki Caul Kittilson, Shan-Jan Sarah Liu

ConLawNOW

This article examines increases in women’s appointment to high courts around the world. It builds on research suggesting that movement by countries to appoint the first women to important benches often influenced neighboring countries. The same authors here look at the related feature that women in advanced industrial countries are appointed to constitutional and supreme courts sooner when subject to electoral pressure. They suggest that electoral pressure is not defined by the left-right ideological spectrum, but rather depends on a more specific support for gender equality.

Policing Agency Data Trusts, Barry Friedman

Northwestern University Law Review

Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”

This practice of universal data collection presents a conundrum. As many …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Northwestern University Law Review

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

The Extradition Treaty Between The United States Of America And The Republic Of Colombia: Public International Law And The Judicial Substitution Paradox, Andrés Téllez-Núñez

Notre Dame Journal of International & Comparative Law

No abstract provided.

“I Like My Eighteenth Century Fresh”: Geofence Warrants, General Warrants, And The Evolving Fourth Amendment, Alexa M. Mascaró

University of Miami Law Review

Almost 250 years ago, our Founding Fathers fought to create a nation free from the confines of British imperial rule. Outrage over governmental intrusions enabled by suspicionless general warrants and writs of assistance galvanized an American polity determined to prevent the abuses that had come to define colonial life. The Fourth Amendment was enacted as a response to executive overreach, and it was deeply informed by the fraught history that led to its adoption—a history that is still used by courts today to define constitutional protections.

In the digital age, the rapid speed of technological innovation has created a precarious …