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.

Is Roe the New Miranda?

Roe v. Wade and Miranda v. Arizona are among the most notable decisions handed down by the Supreme Court. Issued less than a decade apart, these two opinions are widely recognized as being foundational to our legal system. This year, Roe finds itself in the legal crosshairs. Two cases, Whole Woman’s Health v. Jackson and […]

Arthrex and the Politics of Patents

This article is being co-hosted by Fed Circuit Blog for an online symposium entitled “Patent Law and Institutional Choice.” The full symposium can be found here. The Supreme Court’s decision in Arthrex is the latest in a growing set of decisions regarding administrative patent law. A close look at this entire series suggests that Arthrex […]

The New Supreme Court

[…] For conservatives, what I have described is an occasion for great celebration. They have succeeded in their goal of a very conservative Court. For liberals, like me, the challenge is enormous. No longer can we imagine the Court as a possibility for progressive change. We must look to state courts and the political process for that, while fearing how the Court will strike down progressive federal, state, and local laws. We also must consider reforms of the Supreme Court—such as increasing its size—if we want an alternative to a far-right Supreme Court for a long time to come.

What We Can All Learn from Ruth Bader Ginsburg

Tracing the arc of someone’s life and examining their choices, relationships, education, and career path are our usual reactions to the death of someone notable. In RBG’s case, the results of such study are almost overwhelming, but I focus in this essay on five lessons I learned from her. […]

U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19

This Essay will connect the persistent strategies, logics, and identities created by settler colonialism to the disparate health impacts of COVID-19 in Indigenous, Black, and immigrant of color communities in the United States. By offering a framework that uncovers the root causes of ongoing patterns of systemic oppression, this Essay hopes to inspire reform efforts that seek to alter such patterns by advancing reform efforts that are grounded in truth, justice, and reconciliation. […]

The Counter-Majoritarian Difficulty of a Minoritarian Judiciary

Popular selection of judges offers a partial answer to the charge that the judiciary has usurped the role of the People in constitutional governance. Particularly in today’s intensely polarized environment, whether judges are selected through a process that actually reflects popular preferences is thus of critical importance to the democratic legitimacy of the constitutional order. […]

The Supreme Court and the 117th Congress

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses. […]