Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.
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...
Abstract The disestablishment of religion, also commonly referred to as the separation of church and state or separation of religion and government, has been a salutary constitutional principle in the United States. The diminishment of the disestablishment of religion by the U.S. Supreme Court and accelerated superordination of (conservative) Christianity—like so much of the output of the Supreme...
Abstract In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way...
Abstract Unreasonable makes a number of important contributions to discourses on race, crime and justice. First, a central claim of the book is that within policing, race discrimination is not an individual phenomenon or a problem of bad police officers. Rather, bias is seamlessly built in to policing practices, training, accountability policies, and judicial approaches to evaluating police...
Abstract What can public health frameworks tell us about the causes of police brutality and possible remedies? Devon W. Carbado’s book Unreasonable: Black Lives, Police Power, and the Fourth Amendment offers compelling insight into how understanding law as a determinant of the poor health outcomes associated with policing might create new pathways for rethinking the ways that law authorizes...