Jurisprudence Commons^™

Geduldig's Footnote: Five-Plus Decades Of State Courts Reckoning With Federal Pregnancy Discrimination Doctrine, Martha F. Davis

Northwestern University Law Review

In Geduldig v. Aiello (1974), the U.S. Supreme Court held that pregnancy discrimination does not constitute sex discrimination. The decision’s constitutional logic has recently been applied in Dobbs v. Jackson Women’s Health Organization and United States v. Skrmetti. Yet over five decades, state courts have overwhelmingly rejected Geduldig’s rationale—both in construing state employment discrimination statutes and in interpreting state constitutional equality provisions. Courts in at least sixteen states have rejected Geduldig’s rationale in construing state employment discrimination laws, while only four states have followed it. Of the ten states with Equal Rights Amendments that have addressed whether …

State Greenhouse Gas Emissions Disclosure Laws And The Dormant Commerce Clause: Leveraging The State Interest In Protecting Residents From Deception To Pass The Pike Balancing Test, Matthew Macphail

Northwestern University Law Review

Misleading corporate claims about greenhouse gas emissions pose a high risk of consumer deception, as there is currently no uniform federal standard governing how companies must measure or disclose those emissions. Without a national regulatory scheme, firms can selectively report, use inconsistent methodologies, or market vague “carbon neutral” claims, making it difficult for consumers to assess accuracy or compare companies’ representations.

In 2023, California introduced legislation requiring companies doing business in the state to disclose their greenhouse gas emissions in an effort to bring transparency to this area. But such state-level mandates face a constitutional obstacle: the Dormant Commerce Clause, …

Textual (In)Difference In State Search-And-Seizure Provisions, Quinn Yeargain

Northwestern University Law Review

Over the past 250 years, state constitutional drafters have refined the scope of rights and liberties protected by their constitutions’ texts. Today, all state constitutions include a search-and-seizure provision—and though only a minority follow the layout, text, and context of the Fourth Amendment to the U.S. Constitution, most of them bear a striking resemblance to it. However, textual variations abound. Some of them may seem minor, like using the word “possessions” instead of “effects,” or mandating that warrants describe their intended targets “as nearly as may be” instead of requiring that they “particularly describ[e]” them. But others, like the addition …

The New Economic Liberties, Daniel B. Rodriguez

Northwestern University Law Review

Despite the lack of serious interrogation at the federal constitutional level of economic regulations, there continues to be a fairly robust, energetic attention at the level of state constitutional law to so-called economic liberties. In a number of key cases, including, for example, matters involving occupational licensing, state courts have looked to unique features of their respective state constitutions to assess whether and to what extent regulations undertaken under the police power go too far. The rationales for evaluating and, in some cases, invalidating regulations under economic liberties principles are creative, and also controversial. The development of new interpretive approaches …

Child Labor And State Constitutionalism, Andrew Hammond, Helen Hershkoff

Northwestern University Law Review

Almost ninety years after Congress banned “oppressive” child labor as part of the Fair Labor Standards Act, employers are pushing state legislatures to let them put children to work in dangerous poultry plants, at hazardous construction sites, and during late shifts on school nights. Perversely, calls to rollback federal protections are camouflaged in the rhetoric of parents’ rights, casting child labor regulation as intrusive, paternalistic, and even socialist—echoing the same corporate arguments used a century ago when the Child Labor Amendment to the U.S. Constitution went down in defeat. These arguments mask the desperate economic circumstances of a parent claiming …

Court Reform And State Constitutions, Bryna Godar, Miriam Seifter

Northwestern University Law Review

State legislatures regularly propose and enact laws that seek to shape the substantive outcomes of state courts. These maneuvers, including court-packing, jurisdiction-stripping, and more creative changes to judicial selection or authority, would amount to legal earthquakes at the federal level. At the state level, these efforts often receive virtually no attention.

This Essay brings the potent category of outcome-shaping state court reform measures into focus and evaluates it as a question of state constitutional law. We argue that state constitutions, organized around principles of popular sovereignty, do not bar measures that align state courts with popular preferences or the public’s …

State Constitutionalism's Fragile Wall, Adam B. Sopko

Northwestern University Law Review

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 …

State Constitutional Rights And Judicial Power, Zachary D. Clopton

Northwestern University Law Review

On the one hand, we are in a moment when interest in state courts and state constitutional law is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasing calls for state supreme courts to rely on state constitutions to expand rights. On the other hand, we are in a moment when interest in reducing the power of the courts is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasingly calls for reining in judicial power.

This Essay is not an …

Foreword: Fifty-One Constitutions In An Evolving Federal Order, Misha Bogdanov, Olivia Christ

Northwestern University Law Review

On November 6 and 7, 2025, the Northwestern University Law Review, along with the Brennan Center for Justice and State Court Report, convened for its annual symposium, titled The Power of State Constitutional Rights. The symposium brought together judges, practitioners, and scholars to consider the substantive rights protected by state constitutions, the institutions charged with enforcing them, and the democratic processes through which state constitutional law changes. Across conversations about reproductive freedom, criminal procedure, labor, economic liberty, LGBTQ+ rights, voting, federalism, and judicial design, one proposition repeatedly, and emphatically, came into view: American constitutional law is not exhausted by the …

A Tale Of Two Credits: The Post-Nestlé Alien Tort Statute And Carbon Credit Externalities, Stephanie Mao

Northwestern University Law Review

As companies increasingly embrace carbon-neutrality commitments, many rely on the voluntary carbon market to offset their emissions rather than reduce them directly. Regulatory and consumer scrutiny has focused on the widespread use of “phantom” carbon credits, i.e., credits that fail to produce meaningful climate benefits. But less attention has been paid to what this Note terms “colonial” carbon credits: those that may technically reduce emissions but do so at the expense of communities abroad. These projects may contribute to land dispossession, human rights abuses, and threats to public and environmental health. Yet, current regulatory and legal frameworks, with their focus …

Disproportionate Influence: Rethinking Control In American Corporate Governance, Dhruv Aggarwal, Ofer Eldar

Northwestern University Law Review

Corporate law has undergone a gradual transformation. Founding chief executive officers (“founder-CEOs”) and activist hedge funds increasingly dominate leading American corporations despite owning well short of a majority of shares. Founder-CEOs, through personal brands or dual-class voting structures, control firms despite having minority stakes; activist hedge funds, with single-digit holdings, press for major governance changes. We argue that these two types of shareholders, often treated as opposites, both dominate corporations through disproportionate influence rather than majority ownership. We describe these investors who dictate corporate policy through disproportionate influence as high-influence shareholders.

Delaware’s doctrinal response to high-influence shareholders has been inconsistent, …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Northwestern University Law Review

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Ex Parte Young Cause Of Action: A Riddle, Wrapped In A Mystery, Inside An Enigma, Andrew S. Oldham, Adam I. Steene, John W. Tienken

Northwestern University Law Review

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte …

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Northwestern University Law Review

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin Pyle

Northwestern University Law Review

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

The Vanishing Enforcer: Consumer Protection In An Era Of Dual Retrenchment, Alisher Juzgenbayev

Northwestern University Law Review

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws …

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 …

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 Role Of The U.S. State Department As An Amicus In Foreign Policy Abstention Analysis, Sarah Kurpius

Northwestern University Law Review

Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.

This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in 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 …

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 …

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

The Search Of A Search: Moderating Reverse Internet Keyword Warrants, Tui Rademaker

Northwestern University Law Review

Statistics show that Americans consistently turn to Google and other search engines to answer their most personal and private concerns, yet a new investigative tool risks law enforcement having vast discretion in the access of this data. With a keyword warrant, law enforcement can request from a search engine provider (usually Google) a list of probative search queries that users made over a specified time period. Such warrants are beginning to face legal challenges, and so far, courts seem reluctant to recognize the constitutional implications—instead leaving law enforcement with greater potential discretion over their use.

This Note assesses the constitutionality …

First Amendment Exceptions To Otherwise Valid Laws: A Doctrinal And Meta-Doctrinal Perspective, Richard H. Fallon Jr.

Northwestern University Law Review

When do the First Amendment’s Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases––such as United States v. O’Brien and Employment Division v. Smith—insist that First Amendment exceptions should be rare.

In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to …

Malapportionment: A Murder Mystery, Daniel Wodak

Northwestern University Law Review

Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, one person, one vote, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed, but by what exactly? This Article seeks an answer by focusing on the Supreme Court’s commitments about the scope and strictness of one person, one vote: it …

Control As A Constitutional Threshold: Moody V. Netchoice And The Case For Human Authorship, Giselle Goad

Northwestern University Law Review

The Supreme Court’s 2024 decision in Moody v. NetChoice, LLC left a critical question unanswered: when do algorithmic outputs on social media platforms, such as recommended posts and videos, constitute the platform’s protected speech under the First Amendment? This Note contends that courts and litigants should borrow from the First Amendment’s speech-promoting partner, copyright law, and its authorship framework when answering that question. Copyright doctrine has already begun to grapple with how much human control is required over expressive outputs generated with the aid of technology, including AI, in order for an author to receive copyright protection over those outputs. …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

What On Earth Is A Burden On Interstate Commerce?, Andrew Jordan

Northwestern University Law Review

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court …

Promising The First Amendment: (De)Regulating Speech In Higher Education, Max M. Schanzenbach, Kimberly A. Yuracko

Northwestern University Law Review

The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article …

Constitutional Futurisms, Jeremiah Chin

Northwestern University Law Review

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …