Misgendering

Pronouns are en vogue. Not long ago, introductions were limited to exchanges of names. Today, however, they are increasingly enhanced with a recitation of the speaker’s appropriate gendered forms of address: he/him/his, she/her/hers, they/them/theirs, or neopronouns like zie/zir/zirs, xe/xem/xirs, or sie/hir/hirs. This development—like every other dimension of progress for LGBTQ+ people—has been met with fierce […]

Copyright and Disability

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright […]

The False Promise of Peña-Rodriguez

In Peña-Rodriguez v. Colorado, the Supreme Court recognized that racial bias influencing jury deliberations violates the Sixth Amendment’s impartial jury guarantee and is incompatible with the Fourteenth Amendment’s anti-discrimination principles. The Court therefore created a racial bias exception to the centuries-old no-impeachment rule, claiming the decision reflected “progress” in the effort to overcome race-based discrimination […]

Voting for Welfare

For over a century, the Supreme Court has characterized the franchise as instrumental—a right that is preservative of all other rights. Statistics confirm that federal protection of the right to vote has produced higher levels of minority electoral participation and greater shares of minority politicians over the past half century. To voting rights advocates, indicators […]

Harm-Avoider Constitutionalism

How does the Supreme Court decide difficult questions of constitutional law? Standard accounts point to a range of interpretive approaches such as originalism, common law constitutionalism, political process theory, interest-balancing, and constitutional pluralism. And once the list of commonly used interpretive approaches is set, normative debates often follow over which is best. In this Article, […]

The Legality of Ranked-Choice Voting

With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that create incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). RCV allows voters to rank candidates in order of preference: first, second, […]

Democratizing the Supreme Court

Progressives are taking Supreme Court reform seriously for the first time in almost a century. Owing to the rise of the political and academic left following the 2008 financial crisis and the hotly contested appointments of Justices Neil Gorsuch and Brett Kavanaugh, progressives increasingly view the Supreme Court as posing a serious challenge to the […]

Rethinking Disorderly Conduct

Disorderly conduct laws are a combination of common law offenses aimed at protecting the public order, peace, and tranquility. Yet, contrary to common legal conceptions, the criminalization of disorderly conduct is not just about policing behavior that threatens to disrupt public order or even the public’s peace and tranquility. Policing disorderly conduct reflects and reinforces […]

The End of School Policing

Police officers have become permanent fixtures in public schools. The sharp increase in the number of school police officers over the last twenty years has generated a substantial body of critical legal scholarship. Critics question whether police make students safer. They argue that any safety benefits must be weighed against the significant role the police […]

Fair Use as Cultural Appropriation

Over the last four decades, scholars from diverse disciplines have documented a wide variety of cultural appropriations from Indigenous peoples and the harms these have inflicted. Copyright law provides at least some protection against appropriations of Indigenous culture—particularly for copyrightable songs, dances, oral histories, and other forms of Indigenous cultural creativity. But it is admittedly […]