Legal History
Reconstruction State Constitutional Conventions and the Rebirth of American Schooling
In the state constitutional conventions of the Reconstruction South, biracial coalitions of delegates constitutionalized universal public-school systems and kept their constitutions free from mandatory segregated schooling. These oft-overlooked constitutional actors illuminate the true legal relationship between our nation’s history and the current educational landscape.
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.
Piety Police
This Note uncovers the history of how the Brigham Young University Police Department blurred the boundaries between criminal law and church doctrine. These practices included sting operations that used students as undercover agents to target morals offenses. Such tactics illustrate the risks of religiously affiliated policing as it spreads nationwide.
Railroad Regulation Reinterpreted
Freight railroading today is profitable but fails workers, consumers, and communities in serious ways. This Note argues that both the railroad industry’s financial success and its operational shortcomings are legacies of deregulation in the 1970s and 1980s and considers alternatives, some old and some new.
Resurrecting the Trinity of Legislative Constitutionalism
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.
To Be Given to God: Contemporary Civil Forfeiture as a Taking
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.
The Lost English Roots of Notice-and-Comment Rulemaking
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.
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It
This Article offers the first legal history of the Comstock Act from its enactment to its post-Dobbs reinvention. From conflicts over Comstock’s enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty.
Externalist Statutory Interpretation
This Article introduces a new, historically grounded “externalist” perspective for understanding the possibilities and limits of statutory interpretation as a tool for democratic participation and collective power building.
Supply-Chain Wage Theft as Unfair Method of Competition
This Note argues that wage theft in the fissured economy is a competition problem, not just a labor problem. It first recovers a historical understanding of substandard wages as an unfair method of competition. It then proposes FTC action against supply-chain wage theft using Section 5 of the FTC Act.
Auto Clubs and the Lost Origins of the Access-to-Justice Crisis
A century ago, auto clubs offered an astonishing array of legal services, representing members in civil and criminal cases, on both sides of the proverbial “v.” But in the 1930s, bar associations decimated these clubs, alongside other group-legal-service providers—and, we argue, sowed the seeds of the current access-to-justice crisis.
Reconstructing Critical Legal Studies
Had the critical legal studies movement never existed, it would have to be invented today. That movement framed law as a forceful instrument of domination but one compatible with both functional and interpretative underdeterminacy. Its discoveries are indispensable to any successor venture, including the current law-and-political-economy movement.
The Eyes-On Doctrine
Across the germinal period of American constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: the judicial power includes supervisory authority over prison government and conditions of confinement. This Note argues for a witting revival of that commonsense regime.
The Political Economy of Arbitration Law
The prevalent academic critique of arbitration, the access-to-justice critique, fails to account for arbitration’s influence on how firms organize themselves. This Note offers a new critique of arbitration from a political-economy perspective, arguing that today’s highly restrictive arbitration law greatly benefits firms organized as gig platforms.
Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era
Relying on insights from Critical Race Theory and feminist legal theory, this Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. The Note argues that our shared constitutional memory has been artificially narrowed by underconsideration of freedpeople’s constitutional theories and claims.
Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.
The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”
The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.
Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power
What is the source of jurisdictional power, or the power to say what the law is and give it force in a territory? This Article examines how this fundamental attribute of sovereignty historically arose, in America, from property and property institutions, especially the local, mundane, overlooked and bureaucratic title registry.