The Perils of Supreme Court Intervention in Previously Technical Immigration Cases

The post-Kennedy Court has altered its approach to immigration law issues that the Court previously treated as technical. Surveying cases from 2001 through 2018 of technical issues related to the deportability and relief eligibility of noncitizens with past criminal convictions, this Article shows that the Court often ruled unanimously either for or against the noncitizen and that relatively few cases were decided on conventional ideological grounds. Since Justice Kennedy’s retirement, however,…

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Hobbes & Hanging: Personal Jurisdiction v. Choice of Law

When conduct in one state causes injury in another state, and the law at the place of injury is more favorable to the victim than the law of the place of conduct, what law applies? Where can suit be brought? The traditional answers are that the law of the place of injury applies but that it may be unconstitutional to sue the tortfeasor in the courts at the place of injury because all the tortfeasor’s conduct took place outside the forum. Scholars have long criticized this contradiction, and thi…

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The Constitution, Coronavirus, and Care: How the ACA Trilogy and the COVID-19 Pandemic Created New Bases for Medicare-for-All

American healthcare is expensive. Despite decades of attempts to make care affordable, many people in the United States remain uninsured or otherwise experience high out-of-pocket costs. H.R. 1976, the Medicare for All Act of 2021, provides a solution where the federal government directly covers medical care for all residents. Medicare for All is popular, sensible, and humane, especially in the wake of the COVID-19 pandemic. But if the Act were to pass, it would face a similar fate to that of t…

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Race to Property: Racial Distortions of Property Law, 1634 to Today

Race shaped property law for everyone in the United States, and we are all the poorer for it. This transformation began in the colonial era, when demands for Indian land annexation and a slave-based economy created new legal innovations in recording, foreclosure, and commodification of property. It continued in the antebellum era, when these same processes elevated nationalized property transactions over other rights; and gained new tactics after the end of slavery through the early twentieth c…

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Estimating the Earnings Loss Associated with a Criminal Record and Suspended Driver’s License

As states pass reforms to reduce the size of their prison populations, the number of Americans physically incarcerated has declined. However, the number of people whose employment and related opportunities are limited due to their criminal records continues to grow. Another sanction that curtails economic opportunity is the loss of one’s driver’s license for reasons unrelated to driving. While many states have “second chance” laws on the books that provide, e.g. expungement or driver’s license …

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New Originalism: Arizona’s Founding Progressives on Extreme Punishment

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly regarding constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its Constitution. 

Yet, the Arizona state courts have not…

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Breaking the Monopsony Mirror: Evaluating the Collateral Market Procompetitive Justification in the Context of NCAA v. Alston

For over a century, the American universities that comprise the National Collegiate Athletic Association (“NCAA”) have agreed to regulate and restrict athlete compensation. Meanwhile, these universities, along with the coaches and administrators they employ, have secured enormous profits generated by the athletes’ labor. Over the last decade, current and former athletes have brought various lawsuits challenging the NCAA’s compensation restrictions under § 1 of the Sherman Act. The athletes have…

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Current Issue

Federal Rule 23–The Early Years

As Professor Yeazell has shown, present Federal Rule 23 has a surprisingly long lineage, but it remains a work in progress. One of its "roots," the aptly named "Bill of…
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