Exploring the Limits of Qualified Immunity Under Harlow’s Discretionary...
Introduction Buried in Harlow v. Fitzgerald, the Supreme Court’s leading decision on qualified immunity, a largely overlooked phrase invokes a mostly forgotten distinction in the law of official...
View ArticleIndigenous Constitutionalism
Abstract By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental...
View Article“Alas”
Maps have potency. . . . For better or for worse. — Alan Moore & Eddie Campbell Introduction Whether written or unwritten, young or old, constitutions can’t compel the construction of institutions...
View ArticleThe Decline and Fall of the State Executive Council
“It seems a paradox, and yet it is true, that as a rule a citizen knows more of the national government, with which he may never come in actual contact, than he does of his own State, county, and...
View ArticleMaking the Rules of the Rules of the Game: The Use, Misuse, and Disuse of the...
Introduction On August 23, 1842, Congress quietly and quickly conferred a broad grant of rulemaking authority on the Supreme Court. The Act of Aug. 23, 1842 supplemented the Judiciary Act of 1789 and...
View ArticleThe Semantics of Jury Nullification: How Terminology Shapes (and Misshapes)...
Sometimes what we call a practice can matter just as much as the practice itself. Jury nullification has a storied history dating back to the seventeenth century; yet the term “nullification” gained...
View ArticleElam v. Early
Courts often consult entrenched, preratification sources such as Blackstone’s Commentaries and The Digest of Justinian when rendering decisions in common law actions. These authorities can help guide...
View ArticleThe First Criminal Procedure Revolution
Abstract Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights...
View ArticleState Enforcement of Section Three Disqualification:What McConnell Gets Right...
Leading originalist Professor Michael McConnell has written a thoughtful dissection of the Supreme Court’s pivotal decision last term in Trump v. Anderson, which denied the states their ability to...
View ArticleFighting Words at the Founding
“God hates you wicked baby killing whores,” “cocksucker,” “fucking cunt,” and “shut your fucking mouth, you bitch” are statements that start fights. In 1791, it was similarly inflammatory to call...
View ArticleConstructing Constitutional Rights
Introduction In his important article, Determining Rights, Professor Jud Campbell correctly observes that “[t]wo central problems in rights jurisprudence are figuring out who should make”...
View ArticleThe Forgotten History of Prison Law: Judicial Oversight of Detention...
Abstract Prison law is characterized by judicial deference to penal administrators. Despite the well-documented horrors that occur behind prison walls, federal and state courts often decline to...
View ArticleWhen Rational Basis Review Bit
Introduction Like many widows, Sandy Meadows faced economic uncertainty after her husband passed away. She, however, had a knack for arranging flowers and found a job in the floral department of her...
View ArticleThe Federal Reserve’s Forgotten Credit Mandate
In 2021, prices in the United States and across the globe rose rapidly, reintroducing a concern that had lain mostly dormant in U.S. politics since 1982: inflation. Inflation is when the price of...
View ArticleThe Law and Lawlessness of U.S. Immigration Detention
Abstract The United States operates the largest immigration detention system in the world. Immigrants and watchdog groups have reported poor conditions of confinement, including medical mistreatment...
View ArticleFederalism Rebalancing and the Roberts Court: A Departure from Historical...
One of the early lessons we learn in life is that things seek balance. When a parent pushes their child on a swing set, the child climbs high into the air but giggles as they swing back. When a high...
View ArticleDetermining Rights
Abstract This Article explores Founding-era views about the grounding of constitutional rights and how those rights obtained determinate legal content. Today, we typically view constitutional rights...
View ArticleFederal Tort Liability After Egbert v. Boule: The Case for Restoring the...
Abstract Throughout the nineteenth century and much of the twentieth, remedies for federal government misconduct were often predicated on rights to sue conferred by such common law forms as trespass,...
View ArticleThe Tradition of History at Harvard Law School
Introduction: The Rise of Historical Tests and the Required Legal History Course at Harvard Law School There has been a noticeable trend at the Supreme Court in the last half-century toward using...
View ArticleTaking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in...
Introduction When visitors enter the Grand Mosque (est. 1396 CE) — the center of communal Friday Prayers — of Bursa, Türkiye, they are greeted by a strange sight. In the center of the carpeted prayer...
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