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A Modern Poll Tax: Using the Twenty-Fourth Amendment to Challenge Legal Financial Obligations as a Condition to Re-enfranchisement

The Twenty-Fourth Amendment to the United States Constitution has received little attention from federal courts since its ratification. The Amendment’s language is broad and far-ranging, prohibiting conditioning the right to vote on payment of poll taxes or “any other” tax. Although the Amendment’s text, its legislative history, and early Supreme Court decisions strongly indicate that […]

“Title Zero”: Ending the Infinite Loop of Classifications for Broadband via a Technology-Agnostic Definition

This Note proposes the creation of “Title Zero,” a broadband-specific addition to the 1996 Telecommunications Act that provides the Federal Communications Commission (FCC) with a specific definition and clear regulatory mandate for broadband. Since the enactment of the 1996 Telecommunications Act, the FCC has classified, and reclassified, broadband as either a Title I information service […]

Unaccommodated: How the ADA Fails Parents

In 1990, Congress passed the Americans with Disabilities Act (ADA) to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Thirty years after this landmark law, discrimination and ingrained prejudices against individuals with intellectual disabilities—especially poor Black and Brown parents with disabilities—continue. This ongoing discrimination is on stark […]

Reparative Justice in the U.S. Territories: Reckoning with America’s Colonial Climate Crisis

This Article links the climate crisis with the ongoing colonization of the U.S. territories. It explores how the U.S. territories’ political status—rooted in U.S. colonialism—limits their ability to develop meaningful adaptation efforts to combat the climate crisis in their islands. It offers a developing conceptual framework that draws upon “climate reparations” insights, as well as concepts of […]

Privacy, Practice, and Performance

Privacy law is at a crossroads. In the last three years, U.S. policymakers have introduced more than fifty proposals for comprehensive privacy legislation, most of which look roughly the same: they all combine a series of individual rights with internal compliance. The conventional wisdom sees these proposals as groundbreaking progress in privacy law and explains […]

The Pennhurst Doctrines and the Lost Disability History of the “New Federalism”

This Article reconstructs the litigation over an infamous institution for people with disabilities—Pennhurst State School & Hospital—and demonstrates that litigation’s powerful and underappreciated significance for American life and law. It is a tale of two legacies. In U.S. disability history, Halderman v. Pennhurst State School & Hospital is a celebrated case. The 1977 trial court […]

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A Brief Reflection on the Doctrinal Entrenchment of Inequality: Brach v. Newsom

In the spring of 2020, many parents of children in California schools closed during the global pandemic had had enough. They filed a lawsuit challenging the executive orders requiring compliance with state public health directives that in turn mandated the shuttering of schools. A majority of the three-judge panel recognized compelling constitutional interests in education for the parents likely to be more privileged—because of their ability to pay for private education—and denied such protection to parents whose children attended public schools. It is perhaps no wonder that as of this writing, the case is headed for en banc review. This brief essay explores the path taken in the appellate opinion to provide a critique of the different doctrinal treatment of the parents whose children attend public school relative to those whose children attend private schools.

Prosecutors’ Ethical and Constitutional Duties to Criminal Defendants: It’s Time to Reel in the Zeal

When the police violate a person’s Fourth Amendment right, the Exclusionary Rule bars evidence resulting from that violation from being used against the person in trial. The rule is designed to deter police from engaging in illegal searches and seizures. Nevertheless, prosecutors often bring charges even when the initial police report and body-worn camera footage […]

Hindsight’s 2020

Throughout the coronavirus pandemic, strong executives emerged in the President and the country’s many Governors. While the situation required extraordinary measures, expanding executive powers evidence a worrying trend of unchecked, unilateral power. This piece calls for new legislation to automatically impose checks on emergency executive power after a brief interlude, as ‘emergencies’ must be viewed […]

Wrongful Imprisonment and Coerced Moral Degradation

Despite the ever-growing number of exonerations in the U.S.—and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We […]

The South African Sources of the Diversity Justification for U.S. Affirmative Action

This essay reveals that the “diversity justification” for affirmative action has its roots in part in the South African anti-apartheid movement of the 1950s, and that when Justice Powell wrote the controlling opinion in the Bakke case, placing diversity at the center of our discourse on race in America, he was relying on arguments developed in the anti-apartheid movement that the right to admit a racially diverse student body was a key element of academic freedom. When examined in this light, Justice Powell’s opinion was more concerned with academic freedom than racial justice.

Environmental Justice and the Tragedy of the Commons

In The Tragedy of the Commons, Garrett Hardin argues that those who can use a resource for free consume more of it than they would if they had to pay for it. Public resources eventually collapse because people overuse them. Hardin’s widely accepted argument seems correct as far as it goes, but he focuses on […]