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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 But in the context of qualified immunity, the non-precedential label dramatically impacts doctrine.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...