Punitive school discipline procedures have increasingly taken hold in America’s schools. While they are detrimental to the wellbeing and to the academic success of all students, they have proven to disproportionately punish minority students, especially African American youth. Such policies feed into wider social issues that, once more, disproportionately affect minority communities: the school...
Against Endowment Theory: Experimental Economics and Legal Scholarship
Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, one finds appeals to a generic “endowment effect” throughout the legal literature. Recent experimental results, however, suggest that the...
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case
Crucial to the U.S. Supreme Court’s disposition of the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which the U.S. Congress never had considered and nobody thought would ever be enacted. For the five justices who concluded that the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to...
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence
Article III of the U.S. Constitution requires standing to sue for federal subject matter jurisdiction over a case. Under the modern test for standing, plaintiffs must show that they suffered some concrete and imminent injury-in-fact as a result of the illegal conduct of the defendant. While many scholars and judges have critiqued the U.S. Supreme Court’s development and application of the injury...
“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices
The Fourth Amendment’s border search doctrine has historically given the U.S. government the right to search, without individualized suspicion, the belongings of any individual crossing the U.S.border. Courts have traditionally justified this power by citing the government’s paramount interest in preventing the smuggling of dutiable goods and contraband such as illegal drugs. In the twenty-first...
Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles was cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question was whether it would do any good for the over 2000 juveniles who had previously been so sentenced. The touchstone of Miller’s retroactivity...
A Legal “Red Line”? Syria and the Use of Chemical Weapons in Civil Conflict
This Essay analyzes the prohibition on the use of chemical weapons in civil conflicts and applies its findings to the Syrian civil war. We find that international humanitarian law and international criminal law provide a clear ban on the use of chemical weapons in international armed conflict. This prohibition is less clear in noninternational armed conflict, suggesting the need for legal reforms...
Fighting Unfair Credit Reports: A Proposal to Give Consumers More Power to Enforce the Fair Credit Reporting Act
Credit reports play a central role in some of our most important transactions, such as buying a house or car, or even getting a job. Yet an alarming number of credit reports contain damaging inaccuracies. The primary purpose of the Fair Credit Reporting Act (FCRA) is to protect consumers against these inaccuracies, but the FCRA also makes it very difficult for consumers to force creditors to fix...