Indigenous Resilience

The story of federal Indian law is the story of Indian tribal survival in the face of perpetual challenges to their legal and cultural existence, both in law and policy. These assaults have come from every quarter: federal, state, and private actors, as well as from the judicial, legislative, and executive branches. Tribes have often lost key contests challenging their rights and status. Among other challenges, they have overcome disease, starvation, and colonialism. Theirs is a story of striki…

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Making Too Much of Too Little?: Why "Motivating Factor" Liability Did Not Revolutionize Title VII

Although the correct causation standard for various employment discrimination statutes continues to be much debated, the most generous standard for plaintiffs—Title VII’s “motivating factor” rule for status discrimination claims—has not had much effect on the ground. In theory, and without much hyperbole, motivating factor seems to require finding a violation when even a smidgeon of bias is implicated in an adverse employment decision. While such a finding will not necessarily entitle the plain…

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A Dozen Landmark Nuisance Cases and Their Environmental Significance

Over four centuries, nuisance law has proved its versatility. Originally a near strict liability doctrine restraining uses that interfered with traditional agrarian and domestic uses, nuisance evolved to accommodate the Industrial Revolution, providing nuisance defendants with defenses like suitability of uses to their location; use of best available technology; and a high standing bar for private plaintiffs alleging public nuisances, making injunctive relief unlikely. In the mid-twentieth cent…

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Resolving the First Amendment's Civil War: Political Fraud and the Democratic Goals of Free Expression

This Article presents a timely reexamination of the relationship between the First Amendment and political fraud, defined as the use of knowingly false speech to achieve political goals. We extend core Meiklejohnian free-speech principles to show that political fraud presents an intra-First Amendment conflict because both regulating and not regulating political fraud presents some risk to the First Amendment’s goal of self-government. Further, we establish that the self-governance harm of polit…

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Cities as International Environmental Actors: The Case of Marine Plastics

As the impacts of marine plastic pollution become ever more apparent, a number of states have begun calling for the development of a new international agreement to address the problem. This Essay considers which jurisdictional entities should be engaged in the drafting of such an agreement if one should materialize. While nation states have traditionally been the main entities recognized as having the legal personality to make treaties, cities have the potential to substantially advance efforts…

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BDSM, Kink, and Consent: What the Law Can Learn from Consent-Driven Communities

Millions of Americans participate in consensual, mutually agreed-upon activities such as bondage, dominance, and submission—collectively referred to as BDSM or kink—yet the relationship between individual consent to such participation and consent as legally understood and defined is imperfect at best. Because the law has not proven adept at adjudicating disputes that arise in BDSM situations, communities that practice BDSM have adopted self-policing mechanisms (formal and informal) aimed at rep…

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States' Rights or States' Wrongs? The Constitutional Argument for Medically Accurate and Comprehensive Sex Education

Almost all states have some form of legislation governing sex education in public schools, but only 29 states and the District of Columbia mandate that sex education be taught, and only 17 of those 29 states require that the sex or HIV education provided be medically accurate. Furthermore, 29 states require that abstinence-only approaches to sex education are stressed, while only 20 states and the District of Columbia require sex education to include information about contraception. While this …

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Current Issue

A Common Law of Zoning

This Article for the first time identifies a common law of zoning, describes the typology of this essential and overlooked element of American land use law, and establishes the historical…
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Consultants, The Environment, and The Law

Conventional wisdom assumes that private-sector businesses will oppose, undermine, or distort government regulation. That assumption also underpins many areas of theoretical inquiry; theorists commonly assume that effective public-law regimes must…
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