The Supreme Court is well-known to favor granting review in cases implicating circuit splits. When, for example, two federal appeals courts disagree over the meaning of a federal statute, the Supreme Court is likely to step in and resolve the confusion to ensure uniformity in federal law.

But the Court is also increasingly likely to let such splits languish for longer. It is taking fewer and fewer cases, year after year. And the Court dedicates much of the limited space on its docket to cases that do not involve circuit splits—cases that, say, present an opportunity to overrule precedent or that implicate patent matters.

Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent.

For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help. In 2018, this changed. A series of Ninth Circuit Court of Appeals decisions gave homeless individuals a right to occupy public spaces with some of their belongings. The surprising source of the right was the Eighth Amendment. The courts held that for people with no way of complying with laws banning public sleeping, punishing them for doing so constituted cruel and unusual punishment.

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect’s will. Even if the law adequately safeguards those interests, something is missing: reliability.

Lawyers do not know as much about Black English as they should, and people’s freedom hangs in the balance. Differences between language varieties in sounds and grammar can change and have changed the outcome of cases: “He at work” and “He be at work” mean two completely different things. To reduce misinterpretation and therefore wrongful outcomes, this Article provides a primer on the sounds, words, grammar, and social context of Black English targeted directly at legal practitioners. It begins by explaining key concepts in linguistics and making the case for why lawyers must foreground accurate description over normative prescription when facing nonstandard language.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun rights advocates have responded to Bruen with a wave of Second Amendment challenges, most employing a three-part argument: (1) X firearms-related issue has existed since the Founding; (2) the Founders did little or nothing about it; and, therefore, (3) we cannot do anything about it, either. Legal scholars are engaged in critical work on parts (2) and (3) of that argument. As a professional historian involved in several ongoing Second Amendment cases, I have the disciplinary expertise to offer a critique of part (1). This Article explains why the argument for continuity in American gun culture is largely a myth and offers a case study of the role that historical research can play in Second Amendment cases in the Bruen era.

In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But, in fact, Counterman was not convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the Counterman case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence.

Section 9-609 of the Uniform Commercial Code, which has been enacted in every U.S. state, authorizes a secured lender to seize the property of a debtor in default without judicial process. The only limit to this power is that the lender cannot “breach the peace” in the process of repossession. This expansive right of self-help has spawned a $1.7 billion “asset recovery” industry in the United States that undertakes hundreds of thousands of repossessions every year. Many of these repossessions lead to violence. Lawyers, judges, and scholars justify the powerful right of self-help by pointing to its roots in the ancient common law right of recaption. The early cases they rely on, however, share little in common with the modern world of self-help repossession. This analysis also leaves out a more relevant history—the history of American slavery.

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment.

Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law.

The child welfare system, more accurately referred to as the family policing system, employs extensive surveillance that disproportionately targets marginalized families and subjects them to relentless oversight. This Article provides a nuanced and novel analysis of the family policing system and its extensive surveillance targeted at disabled parents and their children.

Through an examination of the history, structure, jurisprudence, and theory of the Eighth and Fourteenth Amendments, the Article concludes that an Antisubordination Eighth Amendment is both possible and necessary to address the systemic racism of the criminal legal system.

This Article examines the history and legal status of inmate trust accounts and the vulnerability of these funds. The Article places prison banking within the broader landscape of racialized wealth extraction through the criminal system and challenges the assumption that prisons and jails—subject to little regulation despite apparent conflicts of interest—should be permitted to operate a low-transparency banking system with exclusive control.

This Article proposes reforms to better align tax agency efforts with their revenue-generating mission and to protect immigrants caught in the crosshairs. Those reforms include redesigning criminal tax investigations, crafting interagency agreements, and providing immigration relief.

This Article interrogates the need for a right to be left dead and takes some preliminary steps towards defining its contours, chief among them an awareness that an individual right to prevent unauthorized reanimations of the dead must look very different than the existing privacy, consumer protection, and property laws marshalled against unauthorized invocations of the living.

Despite the widespread enthusiasm, after decades of implementation it is increasingly clear that information regulation largely fails to achieve its environmental goals. This Article makes two main contributions. By drawing on quantitative and qualitative case studies of information-forcing regulations, it first answers the question of whether this approach to environmental regulation is effective. This Article then analyzes the mechanisms behind information forcing in conjunction with these case studies to propose characteristics that determine the success, or failure, of information regulation.

This Article makes two interventions into existing legal scholarship. First, the Article identifies an intersectional nexus of hazard between environmental and reproductive justice, which is especially acute for women of color living in under-resourced communities. Second, the Article argues for a ground-up approach based on community power-building and interdisciplinary cooperation, which can inform legal and policy solutions at scale.

This Article provides the first comprehensive study of traffic courts. It makes four principal observations about their inner workings.

This Article examines police officers’ and deferential courts’ emerging reliance on the term “blading” or “blading away,” as a behavior supporting the reasonable suspicion constitutionally required for a stop and search. After conducting a comprehensive analysis of the term’s usage in state and federal courts over the past five years, the Article groups three contradictory categories of meaning and argues for the abolition of "blading" as a justification.

As the first exploration of this question, this Article tests the continuing application and rationale of the state action immunity doctrine to the evolving services that a utility provides as the grid becomes digitized.