Deciding how and whom to protect during this crisis is a quintessentially political choice—among the most central of the current moment. But as these cases show, relief funding during a crisis not only can’t avoid First Amendment scrutiny—the newly expanded funding might actually be what prompts scrutiny of programs that previously spent decades flying under courts’ radar…

The rule of law, arguably the most cherished political ideal, remains elusive in many corners of the world. Since its formation in the mid-eighteenth century, Afghanistan has experienced episodes of “rule by law,” “rule of man,” and “rule of gun” much more so than the rule of law. This Article contributes to the literature by exploring the nexus between the rule of law and legal education in developing…

Waiting to appoint a Supreme Court justice until after an election is just another way to tie the Court’s makeup to majoritarian and democratic processes. But is this sentiment right—is the Court, in fact, procedurally majoritarian? To answer this question, I explored the appointment and confirmation process behind each of the nine sitting Justices…

Because American families’ finances are unlikely to recover as soon as the crisis ends, debt collection brought by the COVID-19 crisis also will not dissipate anytime soon. Even after the crisis ends, the need to implement comprehensive, longer-lasting solutions will remain. As we detail below, these solutions largely fall on the shoulders of the federal government, though state attorneys…

On multiple fronts, Americans are pursuing President Trump’s tax returns: a senator through legislation, a district attorney and congressional committees through investigation, and voters through protest and persuasion. None have succeeded.

Do lower-income parts of the U.S. have more mobile homes than higher-income ones? One might think so, based on a 2013 report from BBC News. This report found that “comparing the top 10 mobile home states with the 10 most deprived states suggests a loose correlation,” although it does not provide a way of substantiating such a claim at the sub-state level…

To provide a roadmap for federal vote-by-mail lawsuits related to COVID-19, this Article outlines many of the possible claims that advocates can bring in federal court to challenge states’ failure to provide mail ballots to voters. Where clear tests and guidelines for necessary evidence are absent from the case law, we propose our own…

While lawmakers have long known that Native American women experience gender-based violence at higher rates than any other population, lawmakers historically have addressed these harms by implementing jurisdictional changes: removing tribal jurisdiction entirely, limiting tribal jurisdiction, or returning jurisdiction to tribes in a piecemeal fashion. The result is a “jurisdictional maze” that law…

President Donald Trump frequently argues that confirming federal appellate judges constitutes his quintessential success. The President and the Republican Senate majority have dramatically eclipsed appeals court records by appointing fifty-one conservative, young, and capable appellate court nominees, which leaves merely one vacancy across the country. Nonetheless, these approvals…

The modern #MeToo movement started in late 2017 and immediately had an impact on many aspects of society, bringing down over 200 powerful men in the first year and sparking swift legal change regarding the use of nondisclosure agreements to silence victims. But no research has been conducted into how the #MeToo movement has affected juror decision making in sexual assault…

Affirming that a transgender woman is a woman legitimizes her identity, signals she is worthy of equal dignity, and helps the court better grasp her vulnerability to and experience of discrimination as a woman…

With Neil Gorsuch recently confirmed to the Supreme Court, this is a good opportunity to make some predictions about how Justice Gorsuch is likely to impact bankruptcy law. Why should we care about bankruptcy law in particular? First, as I explain in a forthcoming law review article, bankruptcy law is one of…

The rise of cost-benefit analysis (CBA) in the administrative state has been one of the most important administrative developments over the past few decades. Today, regulatory agencies proposing significant new rules must perform a CBA for review by the White House’s Office of Information and Regulatory Affairs (OIRA). This institutionalization of CBA can enhance the legitimacy of agency…

Scholars and judges have long debated whether antitrust law requires dominant firms to share so-called “essential facilities” with rivals. In her final paper, the late Professor Suzanne Scotchmer and coauthor Stephen M. Maurer argue that the doctrine should return to its historic focus on industries where sharing promises important — and otherwise unachievable…

In this article, Professor Tracy Thomas examines the various ways in which states address same-sex divorce, and highlights the different reasoning that courts have employed to allow same-sex couples to dissolve their unions, even in states that do not recognize same-sex marriage.

In Masculinity As Prison: Sexual Identity, Race, and Incarceration, Professor Russell Robinson explores the creation of the KG6 unit of the Los Angeles County Jail. Robinson describes how this unit, designed to protect prisoners who may be targets because of non-normative gender and sexual orientation, operates as a site for the enforcement of racialized and classed norms about sexual…

California once led the country in sterilizations of mentally disabled people. In the first half of the twentieth century, this practice, inspired by the then-socially-acceptable “science” of eugenics, was considered progressive. Such sterilizations became common around the country and were authorized by state law in California and many other states…

On January 23, 2012, the Supreme Court held unanimously that the installation and use of a GPS tracker on a suspected drug dealer’s Jeep constituted a search under the Fourth Amendment. The outcome had been fairly well foreshadowed: At oral argument, the Justices had seemed perturbed by the thought that police could put trackers on cars—even the Justices’s own cars—seemingly at will…

We are sympathetic to the institutional innovations Leib and Elmendorf propose, and to the concept of democracy at the heart of their recommendations. They resist the opposition of “popular democracy” and “party democracy,” and their models of reform ingeniously blend the two. Popular democracy tries to make real the injunction that “the people should rule” by engaging “the people”…

Russell Robinson has done it again. With “Masculinity as Prison: Sexual Identity, Race, and Incarceration,” he has given us another provocative Article, which illuminates a phenomenon in the world and, indirectly, in ourselves.The Article represents much of what…