Law Commons^™

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Smith's Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer

Faculty Publications

Part I first situates Fulton [Fulton v. City of Philadelphia] within two broader contexts—the clash between social equality rights for sexual minorities and religious freedom, and a pattern of eliding children from legal contests over their lives. It then explains why the standard constitutional framing of social equality versus religious freedom contests is improper when the state is acting as guardian and proxy for children or other non-autonomous persons. Part II sets out a proper framework for analyzing these conflicts, elucidating the scope and nature of the state’s parens patriae authority—a lacuna in constitutional jurisprudence. Part III applies …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa

Faculty Publications

This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of …

Developing Police, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Disaggregating Legislative Intent, Jesse M. Cross

Faculty Publications

In statutory interpretation, theorists have long argued that the U.S. Congress is a “they,” not an “it.” Under this view, Congress is plural and nonhierarchical, and so it is incapable of forming a single, institutional intent. Textualists contend that this vision of Congress means interpreters must move away from concerns about intent altogether, and that they instead should speak in the register of textualism and its associated constitutional values, such as notice and congressional incentivization.

However, even if legislators’ intentions never coalesce into an institutional intent, a disaggregated-intent theory of legislation remains possible. Under this theory, statutes are understood as …

The New Disestablishments, Marc O. Degirolami

Faculty Publications

(Excerpt)

The individual has the autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the policy preferences of that class in this domain, should be imposed on everyone. These propositions reflect two central creeds of what this Article calls the "new establishment." They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, science, healthcare and medicine, and more.

Whether these propositions constitute a "religious" establishment turns out to be an irrelevant distraction. To …

The Emergency Next Time, Noa Ben-Asher

Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Law, Religion, And The Covid Crisis, Mark L. Movsesian

Faculty Publications

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor …

Big Bad Roe, B. Jessie Hill

Faculty Publications

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued …

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

Uprooting Roe, B. Jessie Hill, Mae Kuykendall

Faculty Publications

The U.S. Supreme Court is likely poised to overturn Roe v. Wade in a matter of months. Yet, the roots of Roe run both wide and deep, and to uproot Roe would be to uproot the Constitution’s promise of gender equality in a radical way. Just as the Supreme Court’s jurisprudence of reproductive liberty freed people with reproductive capacity from having their destinies and status tied to their biology, an uprooting of Roe and its companion principles will restore the iron rules of gender difference and return women to their common-law status as lacking self-ownership and equal citizenship.

Response To Wasserman And Rhodes: The Texas S.B. 8 Litigation And “Our Formalism”, B. Jessie Hill

Faculty Publications

In Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: The Limits and Opportunities of Offensive Litigation, Professors Howard Wasserman and Rocky Rhodes explain why the U.S. Supreme Court correctly rejected the pre-enforcement legal challenge brought by abortion providers challenging Texas’s draconian abortion law, S.B. 8, which was specifically designed to evade such challenges. Wasserman and Rhodes also provide grounds for hope on the part of future similarly situated challengers to S.B. 8 copycat laws, outlining a route by which the clinics could have engaged in offensive federal-court litigation against “any person” plaintiffs who seek to …

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Faculty Publications

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …