The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.

Professor David Strauss attributes the U.S. Supreme Court’s reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper “victims” of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Under such elite “polarization,” Strauss worries the jurisprudential approach that emerged from Carolene Products allows for judicial intervention on behalf of groups loaded with political power. Even then, he insists on the classic liberal defense of the courts: that courts serve as an important if imperfect check against the majoritarian domination of minorities.

In Dobbs v. Jackson Women’s Health Organization and Obergefell v. Hodges, the Justices who attack substantive due process law equate it with Lochner. Today, crying “Lochner” has so much force that it is often unclear what the objection itself entails. “Lochner” warns federal judges to defer to a legislature’s judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases do not concern such legislation. In modern substantive due process cases, judges invoke Lochner to express a far-reaching objection: to warn judges against protecting unenumerated rights and second-guessing the decisions of democratic bodies.

Among law students, lawyers, jurists, and legal academics, the reasoning contained in Supreme Court opinions forms the indispensable object of examination. The centrality of those opinions is instilled from the very first moments of law school, as professors direct their students to scrutinize this key paragraph, that critical sentence, even the odd momentous footnote. The rationales undergirding various Supreme Court opinions receive not mere study, but valorization, worship, and occasionally even ridicule.

Once upon a time, not that long ago, we had a pretty good explanation for why judicial review exists. The premise is that, for the most part, important decisions in a nation like ours should be made by politically accountable officials, not by courts. Unavoidably, though, there will be defects in the democratic political process. The role of the courts is to correct those defects, to the extent they can. One such defect is that some groups may not have their fair share of political power. If that is true, then the courts should intervene to protect that group.

Efforts to ratify the Equal Rights Amendment have resurged, and for the first time in nearly forty years, three new states have ratified the ERA. But there are several reasons to reconsider these efforts. Most importantly, the ERA’s substance is insufficient to address ongoing inequities. This Article argues that advocates should instead focus efforts on writing a new amendment constitutionalizing equality aimed at rectifying the constitutional Founding Era’s treatment of people of color, women, and other subordinated groups.

Data breach—the improper exposure of consumers’ personal information held in corporate databases—costs consumers and businesses hundreds of billions of dollars each year. Despite scrutiny, the scale and severity of breaches has rapidly increased. This Note lays out a policy framework for overcoming the intense industry opposition and political paralysis that has consistently derailed data breach reform efforts over the past decade.

The Pregnant Workers Fairness Act entitles many workers to “reasonable accommodations” for pregnancy-related medical conditions—so long as they do not impose an “undue hardship” on their employer. This Article addresses how the chaotic Americans with Disabilities Act doctrine will impact the PWFA’s implementation. The Article proposes a framework for litigants and courts assessing claims under the PWFA.

Scholars’ framing of Section 1983 as a “constitutional tort” and their focus on the qualified immunity doctrine miss the fundamental issue of Section 1983's transformation into a fault-based tort. This Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’ intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.

Past-due child support debt cannot be forgiven or discharged in bankruptcy. This policy is grounded in the assumption that all child support debt goes to a parent taking care of a child. However, billions of dollars of unpaid child support debt are instead owed to the government. Welfare debt often leads to a cycle of incarceration and criminal fines. This Article argues that for the bankruptcy system to uphold its normative principle of forgiving burdensome debt for the most economically vulnerable individuals, welfare debt must be forgiven.

“Suicide by cop” refers to encounters in which civilians intentionally provoke a lethal response from law enforcement. Police and their advocates have developed suicide by cop into junk science that serves as a broad defense against liability. This Article explores the origins and use of suicide by cop, and argues that police should be required to exercise a higher duty of care to protect people from excessive use of force.

The federal government has a well-documented history of discrimination against women in American agriculture. And the government now has many compelling reasons—from remedying past discrimination to shoring up food security—to provide targeted support to women farmers. But the Biden Administration’s attempts to provide targeted financial support to Black farmers through the American Rescue Plan Act were halted by federal courts that view affirmative action with increasing suspicion, as evidenced by the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA). Does the Supreme Court’s upending of decades of precedent governing race-based affirmative action in SFFA also spell the end for gender-based programs in agriculture?

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order.

Most people agree that the institution of contract serves autonomy—or that it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle, such as the authority of the individual will, promissory morality, or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale, and market determination of contract terms—facts to which both the common law and statutory regulation have long adjusted. This Article proposes a different approach to contract theory.

This Article employs recent philosophical advances in action theory and moral responsibility to critically examine the traditional purpose-knowledge-recklessness-negligence (PKRN) mens rea hierarchy of the Model Penal Code. It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm ought to be subject to greater criminal liability than actions that foreseeably result in risk of those same harms. The Article critically rethinks the standard mens rea hierarchy and show how we might amend current homicide doctrine (and the PKRN mens rea regime more generally) to allow more criminal liability for non-intentional police homicides like Derek Chauvin’s killing of George Floyd, relative to reluctant purposeful defendants.

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society. This Article explores the fundamental tension between scraping and privacy law. With the zealous pursuit and astronomical growth of AI, we are in the midst of what we call the “great scrape.” There must now be a great reconciliation.

Although ADA protections are ensured in the federal legislative branch and in state courthouses, this pivotal disability rights statute does not cover the federal judiciary. ADA claims are consequently litigated in federal courthouses that may be inaccessible to disabled people, yet there is little scholarship on the topic. This Note aims to fill this gap by exploring the implications of the lack of accessibility in the federal judiciary. Without ADA protections, disabled people do not have recourse when faced with discrimination and inaccessible spaces. This lack of protection threatens disabled people’s access to justice, access to the workplace, and representation both on juries and within the federal judiciary.

California has a housing crisis. Despite the state government’s best efforts to build more homes, local governments and local voters are finding new ways to circumvent those requirements. One such loophole allows California voters to propose non-compliant housing plans through the ballot initiative process or effectively veto their local governments’ housing allocation decisions through a referendum. Although voters rarely use this loophole, the California Supreme Court should step in and prevent it from growing in popularity. The court can do so by simply making a small change to a legal test that determines when local initiatives and referenda are preempted by state law.

Environmental law has an animal problem. It lacks an account of whether and how animals’ interests matter. Case in point: The agencies tasked with protecting wild animals cannot stop killing them. The National Oceanic and Atmospheric Administration slays sea lions to reduce predation on endangered salmon. The Fish and Wildlife Service shoots barred owls to curb competition with northern spotted owls. These widespread “removals” reflect a tension between safeguarding ecological collectives, such as species and ecosystems, and protecting individual animals.

“Social justice” is everywhere in public law. Scholars and activists are calling for racial justice, climate justice, and health justice, among other claims. When commentators speak about multiple different social justice claims, it is often through an intersectional lens that views these claims as co-constitutive with one another, such as, “There is no climate justice without racial justice.” These justice claims are important and long overdue. But conflicts between different social justice claims—what this Article calls “justice conflicts”—are inevitable in policymaking. Justice conflicts occur when the multiple social justice claims involved in a policy issue point to opposing outcomes.