This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself.
In light of Hively, Evans, and Zarda, this Feature argues that Title VII’s bar to discrimination “because of sex” applies to LGBT individuals. This interpretation follows from Title VII's ordinary meaning, particularly in light of its purpose to entrench a merit-based workplace, in addition to its statutory history.
The existing approaches to conflicts of state search-and-seizure laws are either theoretically or practically flawed. When a search implicates multiple states’ laws, courts should undertake a two-step analysis. First, they should determine whether a conflict exists; and second, they should apply the law of the officer who performed the search.
The orthodox view is that statutory captions and titles should not inform interpretation. However, a more nuanced method distinguishes between Congress’s codification choices and those that the Office of the Law Revision Council makes. While the latter are rightly disregarded, judges should use the former to determine congressional intent.
This Essay explores the agency costs associated with equal treatment clauses, which require all share classes to receive equal consideration in the event of an acquisition. Despite these clauses’ benign appearance, they actually create another hurdle to the sale of a controlled company to the potential detriment of minority shareholders.
This Collection provides a series of Responses to David Schleicher’s Article, Stuck! The Law and Economics of Residential Stagnation, published in Issue 1. Naomi Schoenbaum, Sheila Foster, Sara Pratt, and Michelle Anderson engage with Schleicher’s central ideas regarding declining interstate mobility.
This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases.
America has become a nation of homebodies. This Article advances two central claims. First, declining interstate mobility rates create problems for federal macroeconomic policymaking. Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of legal barriers to interstate mobility.
Originalism is not about the text. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. What originalism generally is about is our present constitutional law and its dependence on a crucial moment in the past.
Climate change presents unique governance problems. The Obama Administration attempted to allay some of these challenges through procedural requirements throughout the federal bureaucracy that entrenched scientific analysis and expertise. This Note documents those requirements and posits that they might prove more durable than President Obama’s more visible environmental policies.
This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define their local government.
This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.
This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation. Doing so would protect rural gun culture while permitting cities to address urban gun violence.