CategoryPrint

This Comment confronts the mounting challenges of antitrust jurisprudence. Modern courts struggle to enforce the Sherman Act—an 1890 statute increasingly strained by the realities of contemporary markets. These difficulties are compounded by a shifting regulatory landscape: a Trump administration that champions free-market ideals, legislation aimed at curbing corporate dominance, and a judiciary...

In recent years, the Supreme Court of the United States has expressed profound skepticism of congressional action that risks intruding upon the operation of state governments. Simultaneously, the Court has taken a dim view of federal efforts to protect the right to vote. Th is Comment argues that both doctrinal shift s are in tension with the Constitution’s requirement that the federal government...

Resurgent rhetoric equating border crossing with invasion and migrants with criminality has fueled a new wave of state criminal-immigration legislation. Although scholars have extensively critiqued crimmigration—the long-running fusion of immigration enforcement and criminal law—this Article identifies a distinct escalation. Invoking dehumanizing notions of “illegality,” states are directly...

Institutional reform litigation (IRL) includes lawsuits brought to reform dysfunctional government bureaucracies. These cases attempt to improve prison conditions, the operation of child welfare systems, the provision of indigent defense, and other policy regimes whose incompetent administrations inflict systemic harm on groups of vulnerable people. IRL originated in school desegregation...

Article III standing is supposed to shut the courthouse doors to ideologically motivated plaintiff s with no personal stake in their litigation and open its doors to good-faith plaintiff s with a real risk of future injury—but the doctrine sometimes does the opposite. Th at malfunction is due to three inconsistencies in standing’s imminent injury requirement: (1) courts make erratic evidentiary...

The United States oft en styles itself a haven for the freedom of religion and equal justice. In spite of these lofty ideals, U.S. courts oft en apply the Free Exercise Clause of the First Amendment unevenly, protecting Old World religions but not Native American religions in the context of sacred sites. These issues recently took center stage in Apache Stronghold v. United States, but the case...

Federal appellate courts label most opinions as “non-precedent.” The label is supposed to have no doctrinal impact. But in the context of qualified immunity, the non-precedential label dramatically impacts doctrine. Th is Article first examines the tension between qualified immunity doctrine and core common law values of predictability, consistency, and perceived integrity of the judicial process...

Attention to the trial of Luigi Mangione has renewed debate about nullification—the jury’s inviolate power to acquit a defendant contrary to the evidence presented. Jury nullification proponents hold that it is a mechanism of last resort for refusing to apply laws that conflict with the public conscience. Opponents, by contrast, argue that nullification undermines the law by diminishing its...

The opioid epidemic has killed hundreds of thousands of people and decimated many communities. Investigative reporters and litigation have uncovered that the consulting firm McKinsey & Company drove prescription opioid use through the advice that it gave to Purdue Pharma. To add insult to injury, while McKinsey was consulting for Purdue, McKinsey was also working as a government contractor...

In most circumstances, when constitutionally protected autonomy rights are at issue, the law balances the individual’s constitutional right of control against the countervailing power of the state. How these two competing claims to control are resolved can be highly contested, but the task of balancing one against the other is a coherent inquiry well captured in constitutional doctrine. Early...

Abstract When federal courts possess both the authority and the obligation to halt ongoing constitutional violations yet refuse to act, they do not merely step aside. They become complicit. This Article introduces a complicity framework for analyzing “judicial bystanding”: the phenomenon by which courts deploy self-imposed doctrinal barriers—standing requirements, abstention doctrines, malleable...

Abstract The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For...

Abstract The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law—it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics...

Abstract An important conversation is happening in U.S. politics about the appropriate role of the U.S. Supreme Court and about the Court’s increasing involvement in highly politicized, controversial policy areas. Many scholars agree that the Court increasingly engages with important national policy issues. What happens when the Court addresses significant policy questions and, equally...