Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft, dangerous working conditions, or human […]
Looking to Hybrid Species for the Future of Coral Reefs
Although corals can hybridize and adapt to the threat of climate change, the existing legal framework in the United States is insufficient to ensure their protection. This regulatory gap leaves hybrid corals exposed to local and regional stressors. But legal protections, like the corals themselves, can adapt and evolve. If we value coral reefs, we should modify the legal framework that protects corals and related marine ecosystems to encompass naturally occurring resiliency tools such as hybrid corals. […]
Public Charge: The Beginning of the End for Nationwide Injunctions?
Immigrants would disenroll from Medicaid and federal housing assistance programs for fear that use of public benefits would weigh against them should they apply for a change in immigration status. This, in turn, would result in greater use of city and county health services and greater housing insecurity risking homelessness. Given these deleterious consequences, if the public charge rule—as multiple federal courts have found —appears to violate the Constitution, APA, and federal immigration laws, why shouldn’t it be enjoined uniformly nationwide? In this essay, I argue that it should, because nationwide injunctions are both a permissible exercise of judicial discretion and a desirable check on executive agencies. […]
The Law of Rescue
Diverse areas of law regulate acts of rescue, often inconsistently. For example, maritime law mandates rescue, immigrant harboring law prohibits it, and tort law generally permits it but does not require it. Modern legal scholarship has focused principally on mandatory and permissive forms of rescue. With humanitarian actors facing prosecution for saving migrants’ lives in […]
The Urban Environmental Renaissance
City governments were an important source of environmental protection in the United States from the 1800s until well into the 1900s. However, since Congress passed a series of landmark environmental statutes in the 1970s, scholars have primarily equated environmental law with federal law. To the extent that scholars consider subnational sources of environmental law, they […]
Resistance Lawyering
This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation […]
Trade and the Separation of Powers
There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second […]
The Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways: A Comment on Owen Fiss’s Brennan Lecture
At Yale Law School, I had the great fortune of studying with Owen Fiss, who provided a riveting introduction to constitutional law. He encouraged me to go into teaching at a time when there were scarcely any women on the faculty at Yale. His work on antisubordination—the group-disadvantaging principle—orients much of my work on inequality […]