Constructing Separate and Unequal Courtrooms

Federal reform transformed civil and criminal litigation in the early 1940s. The new civil rules sought to achieve adversarial balance as it afforded litigants, virtually all white, with powerful discovery tools. In contrast, the new criminal rules denied defendants, often litigants of color, any power to discover information. Instead, the new criminal rules emboldened the prosecutor to bring charges and control what facts to withhold from or share with the defendant. An essential feature of th…

Read more

Of Crosses and Confederate Monuments: A Theory of Unconstitutional Government Speech

This Article uses controversies over government-sponsored religious symbols and Confederate monuments to consider the appropriate constitutional limits on the government’s symbolic expression. It contrasts two types of constitutional harm that can arise from the government’s expressive acts. “Expressions that harm” refers to denigrating or exclusionary government speech that causes material harm to members of the community. “Expressive wrongs” describes constitutional violations that arise when…

Read more

Choice Building

Default rules, which apply only if parties opt not to bypass them, are a common and consequential phenomenon in law. These rules fill gaps, serve as the backdrop against which parties make alternative arrangements, and formalize majoritarian social preferences. Through these roles, default rules affect the behavior and outcomes not only of those parties subjected directly to them, but also those who opt out of their reach. Because of this, the construction of default rules is an important polic…

Read more

Equality of Autonomy? Physician Aid in Dying and Supported Decision-Making

The legalization of physician aid in dying (“PAID”) has been spreading across the United States and is currently legal in ten jurisdictions. Meant to respect autonomy at the end of life, PAID legislation is modeled after the Oregon Death with Dignity Act, which permits only terminally ill adults with contemporaneous decisional capacity to choose to hasten death with PAID. Right-to-die advocates and legal scholars have critiqued the strict eligibility requirements, which although meant to functi…

Read more

Reconceptualizing Revenge Porn

Revenge porn has become an epidemic in the United States in recent years. A debate among legislators has emerged, focused primarily on the question of whether to criminalize the phenomenon, with most states having already done so, based on the grave harm that revenge porn inflicts on victims and the ease of distributing it. However, the conceptual questions of how to categorize the offense, and why, have not received much attention. Contrary to the prevailing approaches in the United States, wh…

Read more

Property Rights in a Vacuum: A Moon Anarchist's Guide to Prospecting

Soon there will be private industry on the moon, but the question of how property rights will be apportioned, transferred, and adjudicated is still unanswered. Further complicating the matter is the founding document of space law, the Outer Space Treaty, which disallows sovereign appropriation of space resources but remains silent on whether the same prohibition extends to private companies. Since the ratification of this seminal document, no major legislation has been passed except for the “Sp…

Read more

“Forever Chemicals" Are in Our Bodies, Drinking Water, and the Environment: Now is the Time To Hold Polluters Accountable and Ramp Up Regulation in the United States

Since per- and polyfluoroalkyl substances (“PFAS”) were created in the mid- twentieth century, they have made their way into all aspects of the environment, including drinking water sources. Humans, and all living creatures, are repeatedly exposed to these chemicals just by going about their daily lives. Even if a person were able to cut out all consumer products containing PFAS, that person would continue to be exposed through food, water, soil, and other pathways. Science has demons…

Read more

Current Issue

A More Complete Look at Complexity

The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This…
Read More