Scholarly debate about the Warren Court casts a long shadow over modern constitutional law. The essential contours of this debate have now grown exceedingly familiar: where liberal law professors overwhelmingly heap praise upon the Warren Court, conservatives generally heap contempt. Although some liberals have begun contending that the Warren Court overstepped the bounds of judicial propriety, such concessions do not reconfigure the debate's fundamental terms. Conspicuously absent from scholarly discourse to date, however, is a sustained liberal argument contending that the Warren Court made substantial mistakes-not by going excessively far, but by going insufficiently far in its constitutional interpretations. This Article supplies that missing perspective by providing a historically contextualized critique of the Warren Court's jurisprudence, identifying significant opinions in which the Court issued conservative constitutional rulings even though plausible routes led to liberal outcomes. Examining the Warren Court's overlooked tradition of constitutional conservatism not only demythologizes that institution and brings sharper focus to the constitutional past; it may also help to inspire a progressive reenvisioning of the constitutional future.

As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a "marriage conscience protection" containing a series of religious exemptions in marriage equality legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriage obscures the root of the conflict. At stake is the central role of relationships in expressing one's sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality.

This Article argues for an antidiscrimination regime that protects same-sex relationships under the rubric of sexual orientation, and it resists the use of marriage equality legislation as a vehicle for undermining current sexual orientation-based nondiscrimination provisions. Even as the "marriage conscience protection" proposed by religious liberty scholars misapprehends the basis of the underlying conflict-that same-sex relationships are an expression of identity and that religious objections largely relate to that identity-its sweeping language threatens to undermine antidiscrimination protections and target lesbians and gay men based not primarily on their marriages but instead more generally on their same-sex relationships. It does so at a moment when antidiscrimination law is increasingly acknowledging the relational component of sexual orientation such that impermissible discrimination based on sexual orientation includes discrimination against same-sex relationships. By permitting religious organizations, as well as some employers, property owners, and small businesses, to discriminate against same-sex couples in situations far removed from marriage itself, the "marriage conscience protection" would threaten substantial progress made in antidiscrimination law. Worse yet, using the term "marriage conscience protection" to label instances of discrimination against same-sex relationships would hide an increasing amount of sexual orientation discrimination that antidiscrimination law is just beginning to adequately address.

The shackling of pregnant prisoners during labor and childbirth is endemic within women's penal institutions in the United States. This Article investigates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation. At a general level, this Article asserts that we cannot understand the persistence of the shackling of female prisoners without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use. More specifically, this Article contends that while shackling affects female prisoners of all races today, the persistent practice attaches to Black women in particular through the historical devaluation, regulation, and punishment of their exercise of reproductive capacity in three contexts: slavery, convict leasing, and chain gangs in the South. The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of these women as deviant and dangerous. In turn, as Southern penal practices proliferated in the United States and Black women became a significant percentage of the female prison population, these images began to animate harsh practices against all female prisoners.

Moreover, this Article asserts that current jurisprudence concerning the Eighth Amendment, the primary constitutional vehicle for challenging conditions of confinement, such as shackling, is insufficient to combat racialized practices at the structural level. Current doctrine focuses on the subjective intentions of prison officials at the individual level and omits any consideration of how race underlies institutional practices. Instead, this Article suggests an expanded reading of the Eighth Amendment and the "evolving standards of decency" language that undergirds the "cruel and unusual punishments" clause. Specifically, this Article argues that evolving standards of decency should be guided by other constitutional provisions, such as the Thirteenth Amendment. This expanded reading, which this Article refers to as the "antisubordination approach," draws upon Justice Harlan's oft- cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein. Under such a reading, conditions of confinement that result from or are related to repudiated mechanisms of racial domination should be deemed "cruel and unusual punishments." By challenging race and gender subordination at the structural level, this Article suggests that we can move from an aspiration to the actualization of humane justice.

The "harm principle," which suggests that the State should criminalize conduct only if doing so is necessary to prevent harm to others, has long been at the center of debates about the legal enforcement of morality through the law. This Essay presents a series of original experiments that investigate the psychological "plasticity" of harm in the context of criminalization-i.e., the extent to which people may recruit harm to achieve desired outcomes within the terms of a given legal constraint. In the first study, we identified various scenarios that induced defiance of the harm principle, such that the participants wanted to criminalize the conduct even if they did not think that it caused harm to others. We then used these scenarios in a second study to investigate how people would respond when they were told that the law requires a finding of harm in order to impose a criminal penalty. As predicted, the respondents who were presented with the necessity-of-harm constraint continued to criminalize at the same rate, but they imputed harm to the conduct where harm was not previously reported. The third study demonstrated the directionality and universality of the harm plasticity effect by showing that a legally extrinsic ideological factor exacerbated the recruiting of harm among people on both sides of a controversial issue (abortion), without their recognition. The final study provided evidence for the nonintentional nature of this effect and pointed toward a pathway to potential remedies. These experiments reveal motivated, outcome-driven perceptions of harm that are at odds with the objective, perception-driven outcomes toward which the legal system strives. We discuss the implications of our findings for the criminal regulation of morality, constitutional law, and theories of punishment and moral reasoning. Furthermore, we consider the application of our results to legal decision making by lay people and professional adjudicators in the context of two high- profile Ninth Circuit cases. We conclude with a discussion of how to potentially reduce motivated cognition in legal judgments.

Incidents of discrimination due to implicit bias, or an unconscious prejudice in favor of or against certain groups, are extremely difficult to challenge in court because plaintiffs alleging discrimination in violation of the Equal Protection Clause must prove that the discrimination was purposeful. Since our legal system often fails to provide relief where implicit bias has caused systemic discrimination, advocates for equity and inclusion should explore preventative measures that guard against the harms of this kind of systemic discrimination. This Comment argues that a new term “social pollution” should be used to properly classify systemic discrimination caused by implicit bias as a problem that should be regulated. First, this Comment discusses the pervasiveness of implicit bias. Then it discusses the Intent Doctrine in equal protection cases and explores reform proposals that ineffectively attempt to address the difficulty of proving implicit discrimination in Title VII disparate- treatment cases. Finally, this Comment uses environmental pollution to introduce the concept of social pollution and explores prospects for using environmental statutes as models for regulatory reform proposals that address the social pollution of systemic discrimination caused by implicit bias. 

The economic downturn of 2008 made the American consumer a focus of intense curiosity and concern. Responding to this concern, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, introducing a new standard for consumer financial protection: "abusive." This standard is distinct from existing standards because it recognizes the imbalance between consumers and lenders in terms of understanding contract terms, obtaining information, altering the terms of an agreement, and evaluating and bearing risk. In doing so, it pushes back against narratives that lay the blame for the financial collapse at the feet of consumers without taking into account the structure of the consumer financial products market.