Despite ongoing disagreement about how the Constitution allocates powers among the different branches, the two dominant schools of thought in American separation-of-powers debates—formalism and functionalism—agree on three premises: Certain powers inhere in certain government branches, some powers are vested exclusively in one or another branch, and the judiciary is the final arbiter of separation-of-powers disputes. Disagreement is largely about how powers should be parsed and which should be shared. Yet over the long lifespan of our constitutional tradition, momentous doctrinal upheavals are relatively commonplace. This Article describes four tectonic shifts in separation-of-powers doctrine: Founding-era debates about how to define and blend powers, nineteenth-century debates about the constitutionality of the nascent civil service, Lochner-era debates about legislatures’ authority to define and regulate public utilities, and mid-nineteenth-century debates about the sources of international law.

Amazon’s dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention—the Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon’s Brand Registry serves as a shadow trademark system that dramatically affects businesses’ incentives to seek legal registration of their marks. The result has been a surge in the number of applications to register, which has swamped the U.S. Patent and Trademark Office (PTO) and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners.

In 2022, the Biden Administration finalized regulations that overhauled procedures for asylum claims for the first time since 1996. These regulations transferred the duty to decide asylum claims in expedited removal from immigration courts to the Asylum Office. While advocates criticized the proposal for its extreme procedural deficiencies, they supported its basic premise: Expanding the jurisdiction of the Asylum Office would be a positive development for asylum seekers. This Article argues the Asylum Office has failed policymakers’ original vision for the asylum system, asylum seekers, and its own asylum officers (AOs) and that any expansion of the office, in its current form, is unwise.

Department of State v. Muñoz was a critically important successor to Dobbs v. Jackson Women’s Health Organization. In Muñoz, the Court continued efforts to shrink the protective force of the Due Process Clause. Even more significantly, the Court launched another attack on the equality principle undergirding cases including Loving v. Virginia. Through its rejection of substantive due process protections, the Court is intentionally weakening a broad swath of antidiscrimination protections and procedural due process rights.

The Students for Fair Admissions, Inc. v. President & Fellows of Harvard College majority opinion has been widely misunderstood as a victory for those who believe in the “colorblind Constitution.” By juxtaposing the opinion’s main rule with the exception for admitting students based on essays that discuss students’ lived experiences with race, Robinson reveals the opinion’s fundamental incoherence, as well as its furtive race-consciousness. This examination reveals the chasm between colorblind rhetoric and the inescapability of racially-forged realities.

This Essay connects Students for Fair Admissions to two earlier moments in equal protection history. The first is Japanese American internment during World War II and the Supreme Court’s creation of the strict scrutiny doctrine. The second is the affirmative action wars that occurred in the 1980s and 1990s, which resulted in the current doctrine requiring strict scrutiny even for “benign” affirmative action. In all three moments—internment, affirmative action wars, and SFFA—Asian Americans were curiously exploited.

Implicit in inquiries about Students for Fair Admissions v. Harvard’s relationship to precedent is an assumption about the affirmative action cases that preceded SFFA—namely, that Regents of the University of California v. Bakke and its progeny represented a victory for proponents of affirmative action. This Essay complicates that view. Our central claim is that Bakke contained many losses for proponents of affirmative action and that the specific nature of those losses set the stage for precisely the outcome SFFA instantiates.

Since the Supreme Court struck down race-conscious university admissions in 2023, magnet school admissions have become the next constitutional battleground for diversity in education. Harpalani illustrates how Asian Americans’ positioning intersected with litigation strategy and constitutional issues in Coalition for TJ v. Fairfax County School Board—an important recent ruling that deals with race-neutral public magnet school admissions policies. Harpalani aims to convince progressives to take anti-Asian animus more seriously, even as they support the admissions reforms that Asian American plaintiffs in several cases have challenged.

The Court’s unprecedented decision in Dobbs v. Jackson Women’s Health Organization relegated abortion regulation to a highly heterogeneous state institutional landscape. For lawyers, this institutional heterogeneity poses new questions of orientation, skill-building, and collaboration. In this Essay, Abrams examines the challenges facing lawyers in this new institutional landscape by focusing on one promising strategy for protecting abortion rights in conservative states: the initiative petition to amend a state’s constitution.

This Note explores the idea of paying Americans to cast their ballots as a mechanism to increase electoral participation among lower income voters and rebalance the influence that wealthy Americans have on policy outcomes. The Note begins by exploring the rationale behind the idea, drawing on political science, economic, and legal literature to argue that subsidizing the franchise could help rebalance elected officials’ perception of the “median voter” away from the wealthy.

Hatred and disinformation on the internet have ushered in a state of emergency for gender-variant people. Among other effects, they have generated political will to enact sweeping regulations that threaten to eradicate gender variance “from public life entirely,” as one political commentator has announced. This Note turns to history—specifically the history of the sex/gender binary and cross-dressing laws—to understand why false and inflammatory representations of gender variance are so prolific in our digital milieu.

Occupational licensing has been under attack from across the political spectrum. Economists argue that it is inefficient and costly; policymakers argue that it limits employment opportunities and hurts consumers; and antitrust regulators argue that it limits competition and creates cartels. Politicians, regulators, and courts have come to a rare consensus that licensing regimes must be restricted or repealed. This Article reimagines licensing in the twenty-first century as a source of opportunity rather than a pure barrier to entry.

It’s widely understood today that inequality is a major social problem that in turn contributes to other crises. By most accounts, tax systems are supposed to be our engines of equality. Yet in today’s United States, state and local tax systems mostly do the opposite: They take a greater percentage of the resources of the poor and middle class than of the rich. This Article argues that a truly progressive state tax system is possible and outlines how it could operate.

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. Given these concerns, this Article asks: What would happen if consent were eliminated from criminal procedure doctrines?

The two primary goals of consumer class actions are to provide relief to those who have been harmed and to deter similar behavior in the future. Yet, in many class actions, claims rates are so low that only a small fraction of class members actually receives their share of a settlement, leaving remaining unclaimed funds subject to judicial discretion. This allows for reversion to the defendant, pro-rata distribution, or escheat by the state. While distribution to charities via the cy pres doctrine is often deemed the “next best” use of these funds, inadequate oversight of recipient charities results in distributions that may not effectively address the harms caused by the defendant’s conduct.

Pharmaceutical drugs are pillars of modern medicine and enshrined in the human right to health. Upholding the right to access such essential medicines requires systems that not only incentivize drug development, but that also audit new drugs for adequate safety and efficacy. Amidst a growing antibiotic resistance crisis, current approaches to both patent protection and clinical trial design are failing to adequately support new antibiotic development while upholding the human right to health.

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.