Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally relevant reliance interests.
The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment in our criminal justice system.
Cases involving schools have implicated nearly every major civil right. In this Review of Justin Driver’s The Schoolhouse Gate, however, Professors Michelle Adams and Derek Black demonstrate that the right to equal educational opportunity is the tie that binds together the Supreme Court’s many disparate precedents involving public schools.
The ability of peremptory strikes to contribute to impartial juries has long been debated. This Note argues that both defenders and critics have overlooked an important value served by peremptory strikes beyond impartiality: democratic legitimacy. Just as elections help legitimate the state’s coercive power, jury selections help legitimate the trial’s coercive power.
A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood, marriage, or adoption.
Most states require compact legislative districts, but courts have no framework to judge when contorted districts are legally suspect. This Essay proposes a “Predominance Test” that limits the most egregious gerrymanders by comparing challenged maps to maximally compact plans to test whether compactness predominates over lower-tier and discretionary criteria.
This Essay looks at married same-sex couples who, pre-Obergefell, spent time in nonmarital relationships while awaiting the right to wed. In discussing how courts now count those pre-equality years toward the length of couples’ relationships—a decision relevant to adjudicating many benefits—the Essay illuminates weaknesses in current nonmarriage law.
In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quasi-sovereigns into the hands of only two legitimate sovereigns.
New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy that relies on laws and markets.
The Fourth Amendment allows police to perform warrantless searches of individuals if they give consent to be searched and that consent is voluntary. Based on original laboratory research, this Essay posits that fact-finders assessing voluntariness underappreciate the extent to which suspects feel pressure to comply with requests to be searched.
Mixed framing juxtaposes the positive and negative attributes of a product. For example, a label using mixed framing might characterize food as “90% fat-free / 10% fat.” This Note advocates that regulators embrace mixed framing as a middle ground in the battle between paternalistic and libertarian approaches to consumer-protection law.
Charles Black’s Impeachment: A Handbook has become the authoritative guide on the subject of presidential impeachment. This year, the Yale University Press published a new edition of the classic, incorporating new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in this Essay.
The DoubleJeopardy Clause prohibits the government from prosecuting or punishing adefendant multiple times for the same offense. Double jeopardy protections, however, come with a major exception. Under the dual sovereignty doctrine, different sovereign states can prosecute a defendant multiple times for thesame offense. This Note argues that the due process
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and temporary appointments, as well as the employee/officer distinction.