Constitutional Law
Retroactive Adjudication
This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead through well-recognized limitations on rights of action.
Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius
This Essay criticizes Justice Sotomayor’s concurring opinion in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. for offering a one-sided and misleading explanation of the island’s constitutional status, and thereby taking sides in Puerto Rico’s decolonization debate.
Condemning Worship: Religious Liberty Protections and Church Takings
This Note explores how courts interpret religious liberty protections when the government seeks to condemn property owned by faith communities (“church takings”), revealing how judges discriminate between types of religious property. While protecting houses of worship, courts allow condemning authorities to take other properties integral to communities’ religious missions.
Expounding the Constitution
This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary debates about how to interpret statutes and expound the Constitution.
The Attorney General’s Settlement Authority and the Separation of Powers
Can the federal government make policy when it settles litigation? Surprisingly, yes. This Note offers a comprehensive account of the Department of Justice’s authority to enter into policymaking settlements, and a new separation-of-powers defense of that authority. Ultimately, policymaking settlements can fit comfortably within existing administrative-law norms.
The First Amendment and the Right(s) of Publicity
First Amendment analysis in right of publicity cases is notoriously troublesome. To remedy this nettlesome conflict, this Article disaggregates the distinct interests that support publicity laws, and then analyzes how these intersect with First Amendment values. By doing so it offers a navigational map for this tumultuous terrain.
Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination
This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community entitled to self-governance.
The Law of Presidential Transitions
Presidents-elect and presidential transition teams wield exceptional power, from nominating cabinet secretaries to drafting policies that often become law. This Note argues that, despite these powers, presidential transitions are essentially ungoverned. It highlights the governance and ethical risks created by lawless transitions and offers several solutions to resolve them.
Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences
Because bodily liberty is a fundamental right, the government may confine someone only to the extent necessary to further a compelling interest. Courts limit pretrial detention and civil commitment accordingly but exempt criminal sentences without explanation. This Note argues that carceral sentences are likewise unconstitutional unless they satisfy strict scrutiny.
Respect, Individualism, and Colorblindness
The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalence and regret.
Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners
Current First Amendment doctrine permits courts to judge a claimant’s religious sincerity in a free-exercise suit but prohibits them from adjudicating religious questions. This Note challenges that understanding by explaining and evaluating how courts treat Muslim prisoner accommodation claims in practice.
A Federal Builder’s Remedy for Exclusionary Zoning
This Note argues that when a local zoning body blocks construction of low-income housing in order to exclude the poor, courts should provide a constitutional remedy. After articulating a doctrinal path through the Due Process Clause, this Note makes the normative case for this “builder’s remedy” for exclusionary zoning.
Probable Cause Pluralism
According to the Supreme Court, the most important phrase in the Fourth Amendment, “probable cause,” is not possible to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement, while avoiding the perils of doctrinal rigidity.
After Suffrage: The Unfinished Business of Feminist Legal Advocacy
This Essay chronicles Pauli Murray’s intersectional feminist legal advocacy, which transformed post-suffrage women’s citizenship and continues to shape an ambitious and urgent agenda for universal enfranchisement in the Nineteenth Amendment’s second century.
The Nineteenth Amendment and the Democratization of the Family
Women’s claim to vote advanced a broader effort to democratize the family. This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history might guide the Constitution’s interpretation in courts and politics today.
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”
Timbs v. Indiana reaffirms the Constitution's role in determining the bounds of licit punishment. This Essay weaves together doctrines that are often siloed but answer the same question: what can't governments do as punishment? I argue that the law has begun to build the principle that governments not set out to cause debilitation when they punish.
A Proposal to Stop Tinkering with the Machinery of Debt
In the wake of the Supreme Court’s 2019 decision in Timbs v. Indiana, which applied the Excessive Fines Clause to the States, this Essay argues that defendants are better protected by replacing the clause’s “gross disproportionality” standard with the more rigorous proportionality guarantee of the Excessive Bail Clause.
Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs
This Essay sketches the outlines of a forfeitures jurisprudence under the Eighth Amendment’s Excessive Fines Clause in which the effect of property deprivations on individuals and their families—in particular, the infliction of financial hardship—is a core criterion in assessing a forfeiture’s severity.
Bans
Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.
Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants
New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, counter-productive, and unlawful regime.