From 1919 to 1969, the Offices of the Legislative Counsel in the Senate and House drafted precedential opinions to advise lawmakers on constitutional and subconstitutional questions. This Article lifts the curtain on this institution, revealing a hidden system that worked to reify congressional power and stymie a rising juristocracy.
This Article introduces “antiracist expert evidence,” an underutilized tool to prove racism in court. Based on a nationwide survey of defense attorneys, it explores the evidence’s utility, identifies barriers to use, and offers strategies to overcome them, aiming to begin to level the evidentiary playing field for criminal defendants.
Prevailing constitutional interpretation sees Congress’s role as legislative, but members of Congress frequently exert nonlegislative influence on agencies by intervening directly on individual claimants’ behalf. This Feature provides an empirical portrait of congressional intervention in veterans’ appeals through internal administrative data and discusses its implications for constitutional and administrative law.
Civil asset forfeiture was once a law-enforcement tool. Today, however, police and prosecutors use forfeiture to fundraise, not to fight crime. This Note challenges the constitutionality of these profit-motivated government confiscations. It argues that these “contemporary civil forfeitures” are not forfeitures at all—they are compensable takings.
After several decades, the Supreme Court has revised its interpretation of employment-discrimination law requiring religious accommodations, creating waves of new litigation. Latent in the doctrine, principles of nondisparagement, reciprocity, and proportionality can guide courts in resolving these claims while also anchoring nonjudicial strategies to protect employees’ basic rights.
Using new archival research, this Article argues that notice-and-comment rulemaking emerged from a series of American transplantations of English rulemaking procedures. Yet, as this Article emphasizes, during the 1930s and 1940s Americans only partially adopted the English framework. The rejection of laying procedures implicates the legitimacy of our rulemaking system.
This Feature revisits the widely held assumption that pharma needs patents to sustain innovation. By analyzing the information goods underlying drugs, this Feature demonstrates that innovation in this sector can proceed without patents. Replacing patents with a tailored form of regulatory exclusivity would reap large gains in social welfare.
Textualists have yet to explain how to interpret codified positive-law text, which is revised by bureaucrats then enacted by Congress, where it differs from original text. This Note’s proposed solution is the “two texts canon.” When applied to Section 1983, the two texts canon demands that qualified immunity be abolished.
After the Supreme Court’s decision in Regents, courts have intensified their scrutiny of agency reversals that upset the expectations of regulatory beneficiaries. This Note defends that development and situates it within an underexplored history of courts calibrating the stringency of their review of agency action to distributional concerns.
“Democracy’s Distrust” explores how the Supreme Court has eroded voting rights and weakened democracy. It argues that the Court prioritizes candidates and legislatures over voters, fostering public distrust. The Essay examines historical and contemporary cases, highlighting the need for legislative reforms and civic action to protect democracy.
This Collection critically examines legal issues in the U.S. territories and explores pathways for reform. These four Essays challenge the emerging “Law of the Territories” framework, document the ABA’s discrimination against territorial lawyers, address reproductive and economic injustices rooted in colonialism, and analyze Congress’s historical role in territorial taxation.
This Collection explores how to better protect workers against the harms of an expanding gig economy and an increasingly automated workplace. It offers three distinct and interconnected perspectives on the legal, regulatory, and policy interventions that could empower workers to navigate the shifting landscape with flexibility, security, and dignity.
In this Exchange, Daniel S. Harawa and Michael R. Ulrich examine the implications of United States v. Rahimi for the future of Second Amendment rights. Together, these pieces reveal how Rahimi exposes deep tensions and inconsistencies within the Roberts Court’s Second Amendment jurisprudence.