This essay explores interpretive debates over constitutional powers and rights. It aims to explain how opposing viewpoints about power/rights and moral reading/originalism could both accurately reflect the theories on which the nation was founded. The essay proposes that the Constitution itself is a bifurcated text created by the existence of America’s two foundings establishing state governments...
A Successful Experiment: California’s Local Laboratories of Regulatory Innovation
This Article looks to local California jurisdictions’ experiences in regulating electronic smoking devices to examine the mechanisms by which state and local policies converge. It concludes that, over time, California jurisdictions tended to adopt broader and more effective regulations of such devices, and that the experiences of localities may have shaped policy at the state level as well.
Enforcing Stereotypes: The Self-Fulfilling Prophecies of U.S. Immigration Enforcement
This article illustrates the present-day impact of racialization of U.S. immigration law through a critical analysis of Section 240A(b)(1) of the Immigration and Nationality Act, which governs relief from deportation for undocumented immigrants. Immigration scholars have discussed the amorphous, unworkable nature of this provision, but the article delves a step further to consider its secondary...
The Reliable Application of Fingerprint Evidence
In State v. McPhaul, the North Carolina appellate panel found error in admitting expert testimony on latent fingerprinting based on the lack of evidence of reliability. The panel did not reverse the defendant’s conviction, finding the error to be harmless. This essay describes the scientific status of fingerprint evidence, the facts and the judicial reasoning in McPhaul, and the implications of...
Insuring Breast Reconstruction
The article posits that the proper interpretation of the Women’s Health and Cancer Rights Act includes breast cancer-suffering women’s right to insurance coverage for reconstruction after partial, as well as full, mastectomies. Additionally, the article argues that the question of whether the Act contains a private right of action separate from ERISA should be revisited.
Distributive Justice and Donative Intent
The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. This article argues that formalistic wills doctrines should be reformed because they harm those who attempt to engage in estate...
Deal Momentum
In private mergers and acquisitions deals, parties enter into non-binding preliminary agreements, such as term sheets and letters of intent. These agreements are not contracts—rather, they are signposts for when enough momentum has accumulated that a deal is likely to go forward. Using interviews with deal lawyers, this article provides a rich and layered account of how sophisticated parties use...
Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery
This article presents the first comprehensive treatment of the basic and officially “open” question whether Section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. Members of the Thirty-Ninth Congress agreed that Section 1 banned at least some of the badges and incidents; they parted company over which ones. The article argues for embracing the Republican broad...