The Institutional Design of Community Control

A growing set of social movements has in recent years revived interest in “community control,” the idea that local residents should exercise power over services like the police, infrastructure, and schools. These range from a call from the Partnership for Working Families, a grassroots coalition, to build community control through the direct democratic governance of […]

Bankruptcy Hardball

On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered […]

Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid-1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity […]

Regulating Implicit Bias in the Federal Criminal Process

Like other supervisory lawyers, federal judges have twin responsibilities. They must comport with ethical and professional rules that govern their own behavior while simultaneously monitoring other attorneys to ensure they are not violating similarly controlling rules. The judicial robe, however, adds an extra dimension of responsibility in the trial oversight process. Specifically, as our understanding […]

Iron-ing out Circuit Splits: A Proposal for the Use of the Irons Procedure to Prevent and Resolve Circuit Splits Among United States Courts of Appeals

Part I of this Article discusses the problems circuit splits pose and how the circuit courts’ growing caseloads, combined with the Supreme Court’s shrinking docket, are perpetuating the potential for increasing circuit splits. Part II discusses the informal en banc procedures currently in place in the courts of appeals. Part III provides an overview of […]

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 […]

The Elastic Meaning(s) of Human Trafficking

What is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts—like domestic violence, sexual assault, labor exploitation, and prostitution—with which it often overlaps? These questions have become increasingly salient after the U.S. Congress defined the crime of human trafficking in the Victims of Trafficking and Violence Protection […]

Judging Risk

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process—from policing to pretrial detention, sentencing, corrections, and parole. As efforts to reduce mass incarceration have led to the adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid, and […]

Politics, Indian Law, and the Constitution

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong. When it comes to Indian affairs, the Constitution is not colorblind. I […]