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…

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…

Recent developments in biotechnology have opened new avenues not only for research but also for patenting. However, recent United States Supreme Court decisions such as Association for Molecular Pathology v. Myriad Genetics demonstrate the interpretive difficulties these new technologies raise in patent law. Many scholars, for example, have argued that rather than using the “product…

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court attempted to eliminate racial discrimination in jury selection by prohibiting the use of peremptory challenges to intentionally strike prospective jurors based on their race. Today, more than thirty years later, Batson’s now-familiar three-part framework is widely considered to be a toothless and inadequate…

Until recently, the disgorgement of profits remedy in US design patent law garnered little attention from scholars or practitioners. Congress created this remedy in the late nineteenth century to overrule two Supreme Court decisions that awarded nominal damages as the sole compensatory remedy for infringements of design patents. Under the new remedy, a design…

Between 2011 and 2015, the Wayne County Treasurer completed the property tax foreclosure process for one in four properties in Detroit, Michigan. No other American city has experienced this elevated rate of property tax foreclosures since the Great Depression. Studies reveal that the City of Detroit systematically and illegally inflated the assessed value of most…

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially…

In recent years, there has been a massive influx of unaccompanied minors (UMs) crossing the southern border. Under the Trump administration, migrant children are being held in detention centers at unprecedented levels, with a five-fold increase in the last year alone. Without legal representation, UMs have little to no capability to defend against removal charges and to advocate for any existing statutory…

The story that James Forman Jr. tells in his superb book, Locking Up Our Own, is local and nuanced. Forman explains that mass incarceration resulted from many small decisions made in many different places. Although all of those decisions were shaped by the legacies of racism and racial oppression, Forman shows that mass incarceration was…

Mass incarceration in America is a story of race discrimination. On the one hand, this means our knowledge about discrimination helps explain why our criminal system looks the way it does. On the other hand, mass incarceration can also teach us something profound about the nature of discrimination itself. In Locking Up Our Own, James Forman Jr. does a masterful job excavating, analyzing…

I was a prosecutor in the District of Columbia during the era of Locking Up Our Own. I was a trial attorney in the U.S. Department of Justice in the early 1990s. Most of my work was in the Public Integrity Section at Main Justice, but for approximately one year I was detailed to the misdemeanor section of the U.S. Attorney’s Office for the District of Columbia. The U.S. Attorney’s Office serves as the…

James Forman, Jr.’s Locking Up Our Own is that rare nonfiction work that is a page turner even when you know the ending. That is the product of exceptional writing, meticulous historical research, and the deep empathy of the author that gives the book its voice throughout. That is why it was both a worthy recipient the Pulitzer Prize and a feature on The Daily Show with Trevor Noah. It is as…

Thank you. It’s a real honor to be at any event that is sponsored by the Brennan Center. I read your tweets, your emails, your policy reports, and your articles in the Atlantic. You are a vital institution. Thank you for doing the work that you are doing. I had a chance to spend some time with Tom Jorde earlier this afternoon, and Tom, I want to tell you how much I appreciate you putting your name…

Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs—meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation…

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever…

In its two most recent decisions regarding the Alien Tort Statute (ATS)—Jesner v. Arab Bank and Kiobel v. Royal Dutch Petroleum—the US Supreme Court failed to answer the specific question upon which it granted certiorari: whether the ATS permits suit against corporate defendants. These two cases reveal only that the ATS does not permit suits…

Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a “shield” and not a “sword” leaves…

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation…

The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public…

The resource limitations of legal nonprofit organizations force staff attorneys to make difficult choices about whom to serve. Nowhere are the consequences of lawyers’ case selection decisions starker than in the immigration context, where individuals face deportation if unable to successfully advocate for themselves before legal authorities. Based on three years of qualitative research within…