CategoryDiscourse

Abstract It is no secret that public defenders across the country struggle with arguably excessive caseloads that limit the effectiveness of the representation they can provide. Excessive caseloads force public defenders to triage cases, a practice which is regarded as unethical because it creates a conflict of interest among a lawyer’s existing clients. In order to avoid excessive caseloads...

Abstract This Article employs the Law Review’s Discourse symposium on my book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, as a starting point to foreground and elaborate on an idea that I reference in that text: police power abolition. The Article begins by describing the central insight that motivates Unreasonable—namely, that simply limiting the frequency with which the...

Abstract On the day he was sworn in for a second term, President Donald Trump issued pardons and commutations to all of his supporters who attacked the U.S. Capitol on January 6, 2021. This sweeping act of clemency gave legal effect to a longstanding grievance: since the attack, which disrupted congressional certification of his 2020 election defeat, President Trump has consistently glorified the...

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...

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...

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...

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...

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...

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...

Abstract The Fifth Amendment equal protection doctrine has never been effective at curtailing racialized harm in immigration law. While not expressly drafted to address racially differential impact, the administrative law doctrine known as arbitrary and capricious review has the potential to enable courts to set aside discretionary immigration enforcement decisions as arbitrary and capricious...

Abstract To every court to consider its merits, Donald Trump’s order purporting to end birthright citizenship for children born to undocumented parents violates the Fourteenth Amendment. But in Trump v. CASA, the U.S. Supreme Court vacated a “universal” injunction that had shielded all children from the order’s enforcement. The federal courts had issued dozens of universal injunctions before...

Abstract The Reconstruction Era has garnered renewed attention from legal historians and scholars of the critical race tradition. Yet Reconstruction’s central institutional actor, the Freedmen’s Bureau—a federal agency created to aid emancipated persons’ transition to freedom—has largely eluded theoretical scrutiny. Building upon legal scholarship on Reconstruction, this Essay pans focus away...