Abstract Constitutional law is the lodestar for law teaching in the United States and is often referred to as the supreme law of the land. But how are this and related bodies of law to be taught? And what should law students learn when ideological shifts in the Supreme Court lead to radical shifts in Constitutional interpretation? This Essay uses the Dobbs case as the epitome of the Supreme...
Constitutional “Law” in a Lawless Court: Restoring the Sources and Methods of Principled Interpretation
Abstract The Fourteenth Amendment’s equality and liberty clauses have been subjected to more judicial review, and opining, than most others. In this still-ongoing interpretative process, successive generations of (mostly) white male federal judges have exploited the unenumerated review power based chiefly on their personal ideological predilections to dismantle reconstructive laws for more than a...
Legal Violence and 303 Creative LLC v. Elenis: A Partial, yet True, History of Public Accommodation Law in the U.S. Supreme Court
Abstract Law professors, particularly those who teach Property or Constitutional Law in the United States, should center public accommodation law in our pedagogy. In 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), the Supreme Court has provided new impetus and fresh material by which to guide our students to contemplate, and join in, the intergenerational struggle over law’s meaning and its...
Finding the Courage to Once Again “Enter”: Managing Faculty Classroom Dynamics in a Period of Doctrinal Upheaval
Abstract A recent shift in the constitution of the personnel on the U.S. Supreme Court has resulted in a “supermajority” of conservative justices that have significantly shifted key constitutional doctrines in a manner not seen in recent history. This shift is illustrated by at least three significant cases: Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), Students for Fair...
Teaching Constitutional Law in Polarized Times: Rights and Structure
Abstract Teaching constitutional law today has been impacted by two trends reflecting a polarized electorate and politics: first, recent restrictions targeting education prohibiting the use of critical race theory, critical legal theory, feminist theories, intersectionality, and other critical legal perspectives in the classroom; and second, recent U.S. Supreme Court opinions abandoning well...
The National Termination of Pediatric Gender Affirming Care: A Study in Illegal, Anticipatory Compliance
Abstract Prohibitions on gender-affirming care for minors in the United States came to a head in the last few months, with the issuance of an Executive Order by the Trump Administration that threatens to penalize institutions that provide such care. While about half of all American states ban such care, the Order seeks to ensure that such care becomes unavailable nationwide. On cue, numerous...
Dependency Law: The Punishment of Performance
Abstract What does a family look like? In recent years, societal understandings have generally grown more inclusive of different kinds of familial structures, including queer families, blended families, interracial families, working mothers, and caregiving fathers. But traditional notions of family roles and expectations still loom large in public consciousness. Critical drivers of this...
The Objective Batson Standard: Can a New Step Three Address the Problem of Implicit Bias?
Abstract Washington courts have attempted to prevent the issues created by implicit bias in jury selection by adopting an objective Batson standard. However, since its adoption, Washington courts have failed to apply this “objective standard” in either (1) a consistent manner or (2) in a manner in line with the standard’s plain text and purpose. In fact, recent Washington appeals court decisions...