I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the provisionality of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems…

The Constitution emerged from a convention—a convention of the states. State popular conventions, by ratifying it, made it law. Though it was meant to “form a more perfect union,” no one could have supposed the Philadelphia Convention’s proposal was anything close to perfect. Indeed, the Constitution’s terms refute any blithe confidence in its flawlessness. Article…

In this Essay, I identify several shifts in focus that might further illuminate the intersection of constitutional conventions and judicial review: first, attending to the role of internal executive-branch conventions, which are distinct in important ways from settlements between the political branches that are Issacharoff and Morrison’s primary focus; second, widening the lens to include…

We are told that we live in the era of textualism. Inspired by the commanding presence of Justice Antonin Scalia, many accounts of American constitutional law focus on, and stress the preeminence of, the written word. On this view, the contractual sense of the constitution as a defined pact means that the intentionality of the original…

Forensic DNA databases have received an inordinate amount of academic and judicial attention. From their inception, numerous scholars, advocates, and judges have wrestled with the proper reach of DNA collection, retention, and search policies. Central to these debates are concerns about racial equity in forensic genetic practices. Yet when such questions arise, critics typically just…

Since the Ferguson and Baltimore uprisings, legal scholarship has undergone a profound reckoning with police violence. The emerging structural account of police violence recognizes that it is routine, legal, takes many shapes, and targets people based on their race, class, and gender. But legal scholarship remains fixated on investing in the police to repair and…

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the…

We empirically examine whether and how the doctrine of enhanced judicial scrutiny that emerged from Revlon and its progeny actually affects M&A transactions. Combining hand-coding and machine-learning techniques, we assemble data from the proxy statements of publicly announced mergers between 2003 and 2017 into a dataset of 1,913 unique transactions. Of these, 1,167 transactions were…

Unlike the debate on the ethics of sandbagging, the economic consequence of a default rule is an empirical question with a right and wrong answer. This Note argues that the only other scholarly article on the issue got it wrong…

Although corals can hybridize and adapt to the threat of climate change, the existing legal framework in the United States is insufficient to ensure their protection. This regulatory gap leaves hybrid corals exposed to local and regional stressors. But legal protections, like the corals themselves, can adapt and evolve. If we value coral reefs, we should modify the…

The FDA’s oversight of food retail has not kept pace with modern legislation’s move toward standardized guidelines across the food industry. Instead, the FDA’s feeble attempt at a command-and-control model has crumbled into a system that is de facto deregulated and lacks uniformity…

Two potential solutions that have been proposed for addressing the fiscal disparity among states are (1) following the lead of other federal nations and adopting a system of interstate fiscal equalization or (2) ending federalism and fully nationalizing key programs. As I will discuss, neither of these polar solutions is feasible or desirable. Instead, drawing on…

The epidemic of PSV [police sexual violence], both in scale and in concept, is startlingly underanalyzed. Sexual assaults committed by police against members of the public operate at the intersection of two vital national conversations about police brutality and sexual violence and harassment…

In articulating a new explanation of Powell’s motives in Bakke, this Article not only calls into question the prevailing understanding that Powell was motivated by his commitment to racial justice, it also complicates a more critical view of the diversity rationale that locates the Court’s endorsement of “the educational benefits of diversity” in a recognition that exposure to racial minorities confers…

Rather than continue this pattern of punishing veterans for having mental health conditions—commander kicks them out and the discharge review board kicks them again—veterans deserve the opportunity for true relief in recognition of their service and the mental health condition they developed due to that service…

This Note argues that it is a mistake to classify domestic violence as a primarily “private” crime given its widespread and gendered nature. Further, in some cases, the infliction of domestic violence is ignored—if not condoned—by state actors, casting doubt upon Attorney General Jeff Sessions’s claim in Matter of A-B-that such violence does not involve…

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception. Scholarship and public debate about law’s role in protecting health care providers’ conscience rights…

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars…

Corporations have something to say about some of the most important social and economic issues of our time—and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies comprising what we call “shadow governance.” These non-charter, non-bylaw governance documents express a corporation’s commitment to and process…

When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual…