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...
Abstract The Roberts Court’s embrace of the conservative Christian agenda—from religious liberty to the erosion of the separation of church and state—has been well documented. This Article contributes to this growing body of scholarship by coining and developing the concept of judicial zealotry: an approach to judging, precedent, and the Court’s self-conception that mirrors the moral and...
Abstract In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today’s liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms...
Abstract Autocratic regimes, now governing 70 percent of the world’s population, often come into power by democratic means but then use their authority to undermine the very institutions that sustain democracies, including representation and participation in elections, protection of minority rights, the rule of law, and checks and balances. This erosion of structural guardrails is known as...
Abstract As policy proposals for tenant protections are debated nationwide and often struck down, tenants continue to live in dangerous conditions that our legal system is ill equipped to redress. Code enforcement is ineffective, and depending on the state, the implied warranty of habitability leaves tenants without recourse to compel their landlord to make necessary repairs. In response to...
Abstract American prisons are a black box: remote, austere, and cruel. Although basic demographic data about the people confined in prisons are common—that is, data on the number of people incarcerated, their age, or their race—there is little information available to the public regarding conditions of confinement. A natural response to this data deficit is to advocate for more of it. This...
Abstract Criminal law and environmental law share a central question: How should the state respond to harm? Despite their common concern, these fields approach state power in sharply divergent ways. Criminal law scholars increasingly question the legitimacy of policing and punishment, while environmental law scholars and activists often embrace expanded enforcement and call for harsher penalties...
Abstract Federal law has long prohibited insider trading in securities such as stocks and bonds. Yet many other financial assets—particularly derivatives and commodities—have historically fallen outside those rules. This Article asks why insider trading is penalized for some assets but not others. It argues that the goals of insider trading law are often pursued through alternative mechanisms...
Abstract Criminal defendants increasingly face the risks of digital evidence. These risks include intentional manipulation, accidental alteration, and even the threat that visual displays like footage or data visualizations lure viewers into an unquestioning acceptance of events as they seem to have unfolded. Some scholars have deemed the U.S. evidence system responsive to issues like intentional...
Abstract This Article argues that today’s anti-CRT statutes, book bans, and “divisive concepts” laws are not isolated culture-war skirmishes but the latest chapter in a long campaign—dating back to the Lost Cause and the United Daughters of the Confederacy—to legislate white innocence as national identity. By sanitizing slavery, suppressing discussions of systemic racism, and threatening...