Federal Courts
The Forgotten Face of “Our Federalism”
Younger v. Harris is canonical in the field of federal courts, but its origins remain largely unknown. Examining diverse sources, this Article reconstructs that story. In doing so, this Article democratizes our constitutional memory, recovering the erased history of Black political resistance and state oppression underlying Younger v. Harris.
Refining Constitutional Torts
Constitutional torts allow victims of governmental misconduct to seek redress. But the doctrinal regime is in disarray because it vacillates between two conceptions of constitutional rights: rights that “nullify” changes to subconstitutional law and rights that impose “duties” on officers. The Feature defends a regime that embraces constitutional duties.
The New Standing Doctrine, Judicial Federalism, and the Problem of Forumless Claims
The Supreme Court’s new standing cases have further narrowed the class of claims justiciable in federal court. Some state courts have followed suit, leaving valid federal claims without any viable forum. We argue that the Supremacy Clause requires state courts to vindicate federal rights by hearing some of these claims.
The Invention of Immigration Exceptionalism
Everyone believes that immigration law has been exceptional since its late nineteenth-century birth—insulated from judicial review by the Court’s creation of the “plenary power doctrine.” But early immigration law was actually ordinary public law. Recovering this reality has profound implications for scholars of immigration and public law alike.
The Past and Future of Universal Vacatur
Universal vacatur is a legitimate part of administrative law’s remedial scheme, not a judicial invention. This Feature traces universal vacatur from the pre-APA period through Abbott Labs. It also juxtaposes the case against universal vacatur with the new major questions doctrine, showing that both centralize power in the Supreme Court.
Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony
This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial management, construct and reconstruct the integrity-autochthony balance.
Equity’s Constitutional Source
This Article uncovers the federal equity power’s constitutional source. It argues that, as originally understood, Article III vests the federal courts with inherent power to grant equitable remedies and to adapt the federal system of equity in ways beyond what the Supreme Court’s current cramped, statute-based equity jurisprudence permits.
The Constitution as a Source of Remedial Law
This Essay responds to Owen Gallogly’s Equity’s Constitutional Source. It argues that it is implausible to locate the federal courts’ authority to afford equitable relief in Article III, but it defends a constitutional default rule applicable to legal as well as equitable remedies having its source in the Supremacy Clause.
Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy
Texas’s patently unconstitutional Senate Bill 8, which effectively bans abortions and assigns enforcement to private individuals, has forced the question whether states can insulate their laws from pre-enforcement review. This piece offers a roadmap for the Court to hold that states may not engage in such procedural trickery.
Equal Supreme Court Access for Military Personnel: An Overdue Reform
Federal law currently provides for direct Supreme Court review of criminal convictions from almost all American jurisdictions, but not of most court-martial convictions. For them, an Article I court can veto access to the Supreme Court. This Essay argues for elimination of that veto.
Supreme Court Reform and American Democracy
The current crisis of the Supreme Court is inextricable from the question of the Court’s role in our democracy. We identify three strategies for ensuring the Court maintains its proper role—internal restraint, external constraints, and structural reform—and argue that internal restraint and external constraints suffer from serious drawbacks.
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.
Island Judges
Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two separate castes among federal district-court judges.
Fidelity and Construction
Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.
The Point Isn't Moot: How Lower Courts Have Blessed Government Abuse of the Voluntary-Cessation Doctrine
Should government defendants be able to more easily moot a case than private defendants? This Essay argues that a strong voluntary-cessation doctrine is important to protecting individual rights and explains why—based on both precedent and policy—government and private defendants should be subject to the same strict standard.
Supreme Court as Superweapon: A Response to Epps & Sitaraman
Daniel Epps and Ganesh Sitaraman propose radical reforms to restore a moderate Supreme Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. A Court unbound by legal principle is too powerful a weapon to leave around in a democracy; we should start thinking about disarmament.
How to Save the Supreme Court
The Supreme Court faces an impending legitimacy crisis. This Feature explains why structural reform is necessary to save what is good about the Court, and identifies criteria that effective reform should satisfy. The Feature then proposes two alternative reforms to the Court’s structure: the Lottery Court and the Balanced Bench.
The Present Crisis in American Bail
This Essay reviews the recent rise of systemic injunctions against money bail systems and a major question they raise: what level of scrutiny applies to allegedly unconstitutional bail systems. It concludes that, in light of history and precedent, strict scrutiny is the appropriate standard.
Nonmajority Opinions and Biconditional Rules
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. This Essay identifies the complications that arise in addressing this question when biconditional rules are involved and proposes a way to coherently resolve those difficulties.