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The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran May 2024

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …


The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba Apr 2024

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …


Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker Mar 2024

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …


The Ideology Of Press Freedom, Hannah Bloch-Wehba Mar 2024

The Ideology Of Press Freedom, Hannah Bloch-Wehba

Faculty Scholarship

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …


Charging Abortion, Milan Markovic Mar 2024

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …


Four Futures Of Chevron Deference, Daniel E. Walters Mar 2024

Four Futures Of Chevron Deference, Daniel E. Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …


First Amendment Fetishism, John M. Kang Jan 2024

First Amendment Fetishism, John M. Kang

Faculty Scholarship

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium

• a White skinhead’s cross burning on the front lawn of a Black family’s house

• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …


Reclaiming Personal Privacy Rights Through The Freedom Of Intimate Association, Nancy C. Marcus Jan 2024

Reclaiming Personal Privacy Rights Through The Freedom Of Intimate Association, Nancy C. Marcus

Faculty Scholarship

The United States has entered a new constitutional era where substantive due process, under attack by the Supreme Court itself, can no longer be viewed as a solid foundation for the securing of personal privacy rights. In a post-Dobbs v. Jackson Women’s Health Organization world, the right to personal privacy, long understood to be protected under the Fifth and Fourteenth Amendments’ Due Process Clauses, is in need of a new doctrinal home. The evisceration of modern substantive due process in the context of abortion rights implicates and endangers LGBTQ+ rights and other personal privacy rights as well. As such, …


When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette Jan 2024

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …


The Automated Fourth Amendment, Maneka Sinha Jan 2024

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …


The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters Jan 2024

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …


False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin Jan 2024

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …


Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias Jan 2024

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Faculty Scholarship

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would …


Courting Censorship, Philip A. Hamburger Jan 2024

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …


Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore Dec 2023

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 …


Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson Nov 2023

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …


Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill Oct 2023

Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill

Faculty Scholarship

Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of …


Firearm Contagion: A New Look At History, Rachel Martin, Michael Ulrich Oct 2023

Firearm Contagion: A New Look At History, Rachel Martin, Michael Ulrich

Faculty Scholarship

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while …


Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll Oct 2023

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 …


Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain Sep 2023

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …


Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton Sep 2023

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 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, another effect of originalism that I identify is 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 …


Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman Aug 2023

Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …


Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell Aug 2023

Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell

Faculty Scholarship

Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …


Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman Jul 2023

Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).

This Article offers an explanation for the difficulty in supporting this historical claim: Because …


Balkinization Symposium On Christian G. Fritz, Monitoring American Federalism: The History Of State Legislative Resistance, Christian G. Fritz Jun 2023

Balkinization Symposium On Christian G. Fritz, Monitoring American Federalism: The History Of State Legislative Resistance, Christian G. Fritz

Faculty Scholarship

Balkinization, the blog founded by Knight Professor of Constitutional Law and the First Amendment Jack Balkin (Yale Law School), hosted a symposium on Christian Fritz's book Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023) June 14-26, 2023. Six scholars from law schools across the United States discussed the book and the symposium concluded with Professor Fritz's response to the commentators.


Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz Jun 2023

Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz

Faculty Scholarship

Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

http://commonplace.online/article/interposition/


Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran Jun 2023

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, …


Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz May 2023

Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz

Faculty Scholarship

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

http://50shadesoffederalism.com/case-studies/monitoring-american-federalism-the-overlooked-tool-of-sounding-the-alarm-interposition/#more-1574


Pro-Choice Plans, Brendan S. Maher May 2023

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 …


The Problem Is The Court, Not The Constitution, Jonathan Feingold Apr 2023

The Problem Is The Court, Not The Constitution, Jonathan Feingold

Faculty Scholarship

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.