Law Commons^™

Tariffs And The Progressive Fiscal Constitution, Lawrence J. Liu, Alex Zhang

Scholarship@WashULaw

For more than a century, progressive taxation has constituted the American fiscal state. A resurgent and expanding tariff regime, however, threatens that commitment to progressive distribution. Given the ongoing popularity of tariffs, this Article examines how they might be designed and administered in a way that mitigates their regressive distributive impact. The Article thus develops and assesses proposals to (1) vary tariff burdens in accordance with the consumption of imported goods, (2) reduce income- or payroll-tax burdens on lower-income households, and (3) earmark tariff revenue for specified spending programs. Although none is perfect, we seek to articulate possibilities and highlight …

Who Makes The Jury? Demographics And Decision-Making In The Jury Process., Ana B. Pons

Honors Undergraduate Theses

Within the American judicial system, juries have played a central role in promoting representation and fairness in the courtroom. However, limited information exists on whether prosecutorial decisions during jury selection, jury composition, or jury behavior differ based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Following PRISMA guidelines, this scoping review synthesizes 48 peer-reviewed articles published between the 1940s and 2026 to examine whether prosecutorial decision-making and jury outcomes vary based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Findings indicated that men are disproportionately selected …

Eroding Protections: The Decline Of Miranda Rights And Its Impact On Due Process In Contemporary America, Autumn G. Pelfrey

Honors Undergraduate Theses

This thesis examines whether the protections established in Miranda v. Arizona, 384 U.S. 436 (1966), remain robust within contemporary criminal justice practice or have been weakened through doctrinal and practical developments. Miranda warnings were originally designed to mitigate the risk that coercive custodial interrogation would produce compelled or unreliable self-incrimination. Since 1966, however, both judicial interpretation and evolving law-enforcement practices have created a growing gap between Miranda’s formal legal promise and its practical operation in real-world interrogations.

The study evaluates the erosion of Miranda’s protective force through three primary mechanisms. First, doctrinal developments have narrowed Miranda’s scope by redefining …

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law. It is being done now—by the Supreme Court.

In each case, real people win, real people lose, real people suffer. Outcomes matter. But across the span of cases, the Court is tearing down our constitutional order of divided power—taking authority from the courts below, from Congress, the agencies, the states, and us, the people—and building a structure of unchecked power in itself. Procedure and remedies are constitutive of the judicial power. In a time of authoritarian threat, they are the …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

Religious Freedom Without Material Autonomy: Property Dispossession And The Containment Of Religion In Socialist Macedonia, 1945-1958, Aleksandar Spasenovski

Occasional Papers on Religion in Eastern Europe

This article examines the relationship between religious freedom and property rights in socialist Macedonia within Yugoslavia between 1945 and 1958. It argues that the formal constitutional recognition of religious freedom did not necessarily guarantee the institutional autonomy of religious communities. Through a legal-historical analysis of federal Yugoslav and Macedonian legislation, implementing regulations, and administrative mechanisms, the article shows how agrarian reform, nationalization of private economic enterprises, expropriation, and the nationalization of rental buildings and construction land progressively reduced the material foundations of religious organizations. The central claim is that property was one of the clearest indicators of the practical scope …

Distributional Reinforcement Theory, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As Donald Trump’s assault on Diversity, Equity, and Inclusion (DEI) reveals, the concept of racial equality is sufficiently malleable that what used to be viewed as remedies for discrimination against racial minorities can now be recharacterized as reverse discrimination against the White majority. Such recharacterization is possible because the concept of equality itself lacks any stable meaning that exists independent of one’s normative preferences about race. In a democracy, normative disputes are properly resolved through the political process, unless there is some representation reinforcement defect that makes judicial intervention necessary to ensure compliance with our second order constitutional equality principle. …

Moody V. Netchoice And Telecom Law's First Amendment, Blake Reid

Publications

No abstract provided.

Separation Of Copyright Powers, Blake Reid

Publications

The United States Copyright Office’s multifarious roles in the U.S. copyright system have long prompted uncertainty about its position among the branches of the federal government. From its formal home in the Library of Congress, the chameleonic Office has accumulated a wide range of advisory, rulemaking, adjudicative, and administrative functions that have long prompted questions about both agencies’ exercise of dueling legislative and executive powers.

Despite its increasingly sprawling portfolio and unusual configuration, the Office has never faced a serious separation-of-powers reckoning—until now. In the span of just five days in May 2025, Donald Trump fired the Librarian of Congress …

Jawbreaking And Counterboning, Blake Reid

Publications

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak …

State Constitutionalism's Fragile Wall, Adam B. Sopko

Publications

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay …

Let Them Hear It: Peaceful Protests Near The Homes Of Supreme Court Justices, Srikanth Reddy

Lewis & Clark Law Review

All of us—not just attorneys and politicians—need to be more critical and skeptical of the Supreme Court. Criticism by ordinary people is good and appropriate, even if it hurts the Justices’ feelings. That includes public protests. When a case matters enough to them, members of the public can and should criticize the Court and its Justices, including by peacefully gathering and protesting near a Justice’s home, or when a Justice appears out in the world.

Taking Off The “Blindfold”: Exploring Montana’S Public Trust Doctrine And The Right To A Clean And Healthful Environment After Held V. Montana, Lizzy Gazeley

Lewis & Clark Law Review

As global average temperatures continue to rise, the threat of climate change looms closer. To evade climate catastrophe, greenhouse gas emissions will need to be substantially reduced. Despite climate change’s imminent risks, in the United States, both the federal government and states remain resistant to transitioning away from fossil fuel energy sources. To combat this government inaction, some litigants have turned to an ancient doctrine. The public trust doctrine provides that sovereigns must protect natural resources from substantial impairment to ensure the public’s right to use those resources.

In Held v. Montana, youth plaintiffs alleged that the State of Montana …

Immigration Federalism And The Promise Of State Constitutions, Joanne Gottesman

Lewis & Clark Law Review

This Article explores state constitutions’ promises and pitfalls for immigrant rights advocacy. This is a particularly urgent endeavor, given the anti-immigrant measures of President Trump’s second term and a U.S. Supreme Court that is willing to reverse longstanding precedent. Even cases like Plyler v. Doe, with its guarantee of free public education to undocumented children, could be vulnerable. While U.S. Supreme Court opinions protecting immigrant rights are the gold standard because they apply nationwide, state courts and state constitutions provide critical alternative avenues for relief that should not be overlooked.

This Article considers some state constitutional provisions that may help …

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

Law Faculty Publications

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 and …

Liberty As Entitlement In The Common Law, Joshua C. Tate

Faculty Journal Articles and Book Chapters

In recent decades, some Justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process. In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” This Article will argue that such a narrow definition excludes many instances in which the common law used “liberty” as a synonym for “privilege” or “entitlement.” Treatises that were well-known to the Framers …

Adequate Representation In Group Litigation, Elizabeth Chamblee Burch

Scholarly Works

This article examines the inherent tension between the legal system's desire for "global peace" (finality) and the constitutional requirement for adequate representation in collective lawsuits. While Rule 23 class actions provide structural safeguards—such as judicial oversight of counsel and settlement, and opt-out rights—alternative mechanisms like multidistrict litigation (MDL) and parens patriae suits often lack these protections . Using the In re National Prescription Opiate Litigation as a primary case study, the article illustrates how informal, "backroom" leadership selection in MDLs empowers a small circle of elite "repeat players" at the expense of marginalized groups, such as Native American tribes and …

Qui Tam Legislation And Article Ii: State Constitutional Precursors To The “Take Care” Clause, Randy Beck

Scholarly Works

Anglo-American legislation since the fourteenth century has often authorized “popular” or “qui tam” enforcement, in which an uninjured “common informer” litigates to collect a forfeiture for violation of a statute. Popular enforcement has become considerably less common than in earlier centuries, but remains important because of the qui tam provisions of the federal False Claims Act (FCA). In Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Supreme Court rejected an Article III standing challenge to qui tam litigation, concluding that the long history of popular enforcement means qui tam suits present cognizable “cases and controversies of …

Abandoning Press Freedom, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

Among elected officials and the broader public, attitudes toward the press are deeply polarized along ideological lines. Polling shows that most liberals favor the press, while conservatives view it more negatively— a partisan divide that has widened significantly over the past decade. Conventional wisdom suggests that the same ideological split is also at work at the Supreme Court, with liberal Justices championing the work of the press while their conservative colleagues express more skepticism. This perception is reinforced by historical examples of liberal Justices advancing press rights alongside broader democracy-engagement and social-justice issues. Recent calls from some conservative Justices to …

Gienapp's Big Book: Conceptual Rupture, Modernism, And The End Of Originalism, Logan E. Sawyer Iii

Scholarly Works

For decades, we have lived in an age of partisan jurisprudence, in which nearly every Republican has embraced originalism, and nearly every Democrat has rejected it. One can mark the start of that era in multiple places, but one good choice is November 11th, 1977. That day, in the pages of National Review, William F. Buckley previewed Government by Judiciary, Raoul Berger’s originalist critique of the Warren Court’s rights revolution. The review, entitled “Berger’s Big Book,” was highly complimentary. Berger’s rebuke of Warren Court activism was, Buckley thought, “devastating.” And he was not alone. Following the publication of Government by …

Press Freedom's History And Tradition, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have …

Qui Tam Relators As Article Iv Officials, Chad Squitieri

Scholarly Articles

Since the earliest days of the republic, Congress has empowered private plaintiffs—called qui tam relators—to bring claims in court on behalf of the United States. Today, qui tam litigation accounts for billions of dollars in judgments and settlements each year. But despite qui tam’s modern significance and historical pedigree, its constitutionality has recently been questioned. To wit, several sitting Supreme Court Justices have suggested that qui tam violates the President’s Article II authority because it empowers private relators—who are neither appointed nor supervised by the President—to enforce federal law. Following similar logic, a lower federal court recently ruled a prominent …

Inside, Outside, And In Between: Black Homeplace As A Blueprint For Privacy Law, Nina-Simone Edwards

Library Scholarship

This essay reimagines the meaning of home and privacy for Black Americans by interrogating the legal and technological systems that routinely collapse the sanctity of the homeplace. Using the no-knock warrant as a central case study, this essay illustrates how state-sanctioned intrusions transform a space of rest, memory, and self-making into a site of violence. Although Fourth Amendment doctrine purports to guard against unreasonable searches, its prevailing binary framework–distinguishing only between “inside” and “outside” the home–renders Black domestic spaces uniquely vulnerable. Drawing from Critical Race Theory, particularly its social construction thesis, this essay shows how race, law, and technology co-produce …

Legislative Support Of Religious Policy In Ukraine Under Martial Law, Volodymyr Karpunets, Andrii Shevchuk, Oleksandr Bilchuk

Occasional Papers on Religion in Eastern Europe

The article examines the legislative framework of Ukraine's religious policy under the conditions of martial law caused by the full-scale armed aggression of the Russian Federation. The constitutional foundations of state-confessional relations are analyzed, particularly the provisions of Article 35 of the Constitution of Ukraine on freedom of conscience and religion, as well as Article 64, which provides for the possibility of temporary restrictions on religious rights under martial law. Key legislative acts are reviewed: the Laws of Ukraine "On Freedom of Conscience and Religious Organizations" (1991, with amendments in 2018 and 2019), "On the Legal Regime of Martial Law" …

Speaking Freedom: Black Liberation, Abolitionism, And Substantive Justice, Darren L. Hutchinson

Faculty Articles

Subordinate groups form social movements to contest societal norms and practices that sustain inequality. Social mobilization by subordinates can spark countermovements by privileged classes who perceive egalitarianism as a threat to their economic, political, and social power. Privileged-group countermovements often seek to suppress speech that challenges oppression, known as liberation speech. In the nineteenth century, defenders of enslavement suppressed “liberation speech” by legal and extralegal means in order to maintain Whites’ social dominance. Abolitionist resistance to speech suppression helped foster a culture of free speech that created a foundation for First Amendment doctrines developed in the twentieth century. Drawing from …

Ideology And Law In Tension: The Macedonian Socialist Model Of Secularism And Its Constitutional Legacy, Aleksandar Spasenovski

Occasional Papers on Religion in Eastern Europe

This article examines the constitutional and ideological foundations of church–state relations in socialist Macedonia (1945–1990), situating them within the broader framework of socialist Yugoslavia. It argues that the Macedonian model of secularism was shaped by a structural tension between Marxist atheism as an official ideological doctrine and formal constitutional guarantees of freedom of religion. While constitutional texts affirmed separation and religious liberty, statutory regulation and political practice constrained the public role of religion and marginalized religious communities within the socialist legal order.

By analyzing ideological premises, constitutional provisions, and legislative instruments, the article identifies the defining paradox of the Yugoslav …

Justice In Erotic Spaces, Elena L. Cohen

Cardozo Journal of Equal Rights & Social Justice

This Article posits that the concept of "erotic justice" could be used by courts to push back against the current cascade of anti-LGBTQ+ laws and meaningfully improve the lives ofgay and trans people. The beginning of the twenty-first century was widely seen as a time of great progress for LGBTQ+ people, with the legalization of gay marriage in countries across the world seen as the ultimate triumph. Yet there is a strong contemporary movement to re-criminalize the lives of LGBTQ+ people and to remove protections that have been granted by courts. In the U.S., the 2020s have seen an ongoing …

Data Sanctuaries: Rethinking Technological Progress To Preserve Federalism, Nathan S. Lee

Cardozo Journal of Equal Rights & Social Justice

Why are sanctuary states and cities in the present moment largely failing to protect immigrants and other vulnerable people from federal enforcement of an agenda based on mass deportation and fear? While federalism was painted during the Civil Rights Era as a weapon of states to protect policies of discrimination and segregation, federalism was also a powerful tool used by Northern States before the Civil War to resist Southern and federal laws enabling the dehumanizing capture and transport offugitive slaves (or suspected fugitive slaves). What has changed in the passing years to make federalism seem like such a thin concept, …

Anti-Zionism, Antisemitism, Antidiscrimination, Zalman Rothschild

Articles

This Article uses recent anti-Zionism cases as a case study in hostile environment causation. It briefly surveys the approaches to the causation element that courts have taken in other contexts and then examines the anti-Zionism decisions in detail. It finds that courts in these cases have consistently converged on the narrowest variant of the motive-based approach, treating proof of animus—subjective hostility toward Jews—as the operative route to causation. That approach has its attractions. It preserves breathing space for political speech and resists the claim that opposition to Zionism is necessarily hostility toward Jews. But it is not the only approach …

Activist Judicial Restraints, Michael Gentithes

Akron Law Faculty Publications

For decades, jurists and scholars have touted the virtues of judicial restraint—a characteristic of judges who only adjudicate issues they are competent to resolve, thereby avoiding political thickets and preserving their authority. Judicial restraint is ingrained in justiciability doctrines that emanate from Article III of the Constitution. When applied evenhandedly, standing requirements, the political question doctrine, and prudential manageability prerequisites to litigation help the Court maintain an appropriately restrained docket.

The Roberts Court falls well short of this restrained ideal in potentially dangerous and destructive ways. The Court has changed justiciability doctrines into “activist judicial restraints” that, rather than avoiding …