Volume 94, Number 1

Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ultimately deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to challenge the growth of the mass deportation regime effectively. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.

A large body of scholarship has debated the constitutionality of criminalizing travel to seek abortions—an issue with new salience in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade. Increasingly, however, antiabortion activists are turning to civil remedies as a supplement or alternative to criminal prosecution in cases involving out-of-state abortions. In contrast to criminal jurisdiction, where the outer bounds of states’ authority to punish out-of-state conduct is highly uncertain, the extraterritorial application of state law in civil litigation is a common, routine effect of choice-of-law analysis that is unlikely to raise constitutional difficulties. As a result, it is reasonable to expect that courts in antiabortion states may give broad geographical effect to abortion-restrictive laws and policies in at least some civil litigation. The resulting decisions are likely to create substantial friction between states, as abortion-permissive states try to protect their own citizens from liability even as the Full Faith and Credit Clause demands recognition of foreign-state judgments that courts may be reluctant to give. Similar clashes between state policies have, to be sure, happened before, and this Article explores their outcomes in the areas of divorce liberalization, cannabis legalization, and the enforceability of noncompete clauses. At the same time, abortion is likely to give rise to broader and more intractable conflicts than any other issue courts have confronted in the recent past. Although individual judges can reduce occasions for interstate friction by applying restrained, conduct-focused conflicts principles, the states’ fundamental disunity on the underlying issue of abortion may prove to be a problem that our choice-of-law
system is simply not equipped to resolve.

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.

This Article offers an in-depth analysis of the core legal issues concerning abortion related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and economic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and economic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states’ efforts to conscript them into a war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from warrants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care.

Neoliberalism and its accompanying austerity measures are shrinking local and
national government budgets, even though constituent needs remain pressing. In
desperation, public officials sometimes replenish public coffers through illicit
extraction from segments of the population poorly positioned to fight back. In
Detroit, for example, city officials inflated property tax assessments in violation of
the Michigan Constitution, leading to illegally inflated property taxes that many
homeowners could not afford to pay. Consequently, since 2009, one in three homes
have completed the property tax foreclosure process, the highest number of property
tax foreclosures in American history since the Great Depression. These
unlawful practices are not just occurring in Detroit, but also in other American
cities such as Ferguson, Philadelphia, and New Orleans.

Nevertheless, because corruption is universally defined as corrupt acts that are for
private or personal gain, there is currently no lexicon to describe illegal acts that
principally benefit the public treasury. I have coined the term “stategraft” to
describe this overlooked phenomenon: when state agents transfer property from
persons to the state in violation of the state’s own laws or basic human rights. To
establish stategraft as an essential theoretical framework, this Article elaborates its
definitional elements, demonstrates its conceptual value, and shows how it extends
existing discourses on corruption, state crime, and the predatory state.

In the battle for market supremacy, many firms are employing pricing software that
removes humans from price-setting decisions. These pricing algorithms fundamentally
change the dynamics of competition and have important implications for antitrust
law. The Sherman Act has two operative provisions. Section One condemns
agreements between firms that unreasonably restrain trade, such as price-fixing
agreements. Section Two prohibits monopolizing a relevant market through
anticompetitive conduct. Although a considerable body of excellent scholarship
explains how pricing algorithms can collude to fix prices in violation of Section
One, no scholarship discusses how algorithmic pricing could violate Section Two.

This Article addresses how pricing algorithms can facilitate illegal monopolization
through predatory pricing. Predatory pricing is a two-stage strategy. First, in the
predation phase, the predator charges a price below its costs, reckoning that its
rivals will exit the market because they cannot make profitable sales at that price.
The predator willingly incurs losses in order to force its rivals from the market.
Second, during the recoupment phase, after its rivals have exited the market, the
predator recovers its earlier losses by charging a monopoly price.

Theorists have asserted that predatory pricing claims are inherently implausible for
three reasons: (1) The predator must suffer disproportionately outsized losses
because it controls a larger share of the market; (2) predatory pricing threats are
not credible because a firm cannot believably commit to below-cost pricing; and
(3) firms that exited the market during the predation phase will simply reenter the
market during the recoupment phase. Based on these theoretical arguments, federal
judges consistently reject predatory pricing claims.

This Article explains how algorithmic pricing undermines all three theoretical arguments
claiming that predatory pricing is not a credible route to monopoly. First, a
predatory firm can use pricing algorithms to identify and target its rivals’ customers
for below-cost pricing, while continuing to charge their own existing customers a
profitable price, which minimizes the predator’s losses during the predation phase.
Second, algorithms can commit to price predation in ways humans cannot. Third,
pricing algorithms present several new avenues for recouping the losses associated
with predatory pricing, including algorithmic lock-in and price manipulation. In
short, even if one believed that predatory pricing was implausible in the past, the
proliferation of algorithmic pricing changes everything. Because pricing algorithms
invalidate the theories behind the current judicial skepticism, this evolving technology
requires federal courts to revisit the letter and spirit of antitrust law’s treatment
of predatory pricing claims.

This Article reinvigorates the case for abolishing strict liability in the criminal law.
Undertaking an intellectual history of mens rea policy, I spotlight two assumptions
that have fueled strict liability’s historic rise and current deprioritization in criminal
justice reform. One assumption is that eliminating culpable mental states from
criminal statutes is an effective means of reducing crime. The other assumption is
that adding culpable mental states to criminal statutes is an ineffective means of
lowering prison rates or promoting racial justice. This Article argues that these
assumptions are unsupported by available evidence and have no place in criminal
policymaking. Synthesizing decades of social science research, I first explain why
there is little reason to believe that strict liability promotes public safety. Next,
building upon the first-ever legal impact study of mens rea reform, I explain how
adding culpable mental states to criminal statutes could alter charging practices and
conviction rates. I then demonstrate the racial justice benefits of universal mens rea
standards by highlighting the concentration of strict liability in offenses disparately
enforced against people of color. Through this deeper understanding of mens rea
policy, the Article reveals the strength of the case against strict liability, and why
culpable mental state requirements are an important tool in the fight against mass
incarceration.

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it in Kansas v. Carr. According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context, and moral questions—“Are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decisionmaking, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the public interest and establish just, reasonable, and nondiscriminatory rates, charges, and practices. Throughout the Article, we challenge the longstanding narrative that utility regulators are engaged solely in a technical ratemaking exercise in setting utility rates. We argue that rate setting is and always has been social policy implemented within a legislative framework designed to promote the public interest. As we explain, when regulators and advocates expressly recognize this fact, it creates new opportunities for the regulatory system to achieve energy justice goals.

Through our reexamination of energy system governance, we evaluate new approaches to advance the public interest and set just and reasonable rates for energy consumers. These new approaches consider system benefits as well as costs, enhance universal and affordable access to utility service, alleviate income constraints on residential energy consumption as an economic development tool, increase equitable access to distributed energy resources such as energy efficiency upgrades and rooftop solar, and enhance procedural justice in ratemaking proceedings. We argue that over the long run, these pathways to a more just energy system align the interests of all system stakeholders by creating community wealth and collective prosperity.

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt. This Article proposes developing an international “war torts” regime, which would require states to pay for both lawful and unlawful acts in armed conflict that cause civilian harm. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing war torts and creating a route to a remedy would not only increase the likelihood that victims would receive compensation, it would also create much-needed incentives for states to mitigate or reduce civilian harms. Ultimately, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.

Policing agencies in the United States are engaging in mass collection of personal data, building a vast architecture of surveillance. License plate readers collect our location information. Mobile forensics data terminals suck in the contents of cell phones during traffic stops. CCTV maps our movements. Cheap storage means most of this is kept for long periods of time—sometimes into perpetuity. Artificial intelligence makes searching and mining the data a snap. For most of us whose data is collected, stored, and mined, there is no suspicion whatsoever of wrongdoing.

This growing network of surveillance is almost entirely unregulated. It is, in short, lawless. The Fourth Amendment touches almost none of it, either because what is captured occurs in public, and so is supposedly “knowingly exposed,” or because of the doctrine that shields information collected from third parties. It is unregulated by statutes because legislative bodies—when they even know about these surveillance systems—see little profit in taking on the police.

In the face of growing concern over such surveillance, this Article argues there is a constitutional solution sitting in plain view. In virtually every other instance in which personal information is collected by the government, courts require that a sound regulatory scheme be in place before information collection occurs. The rulings on the mandatory nature of regulation are remarkably similar, no matter under which clause of the Constitution collection is challenged.

This Article excavates this enormous body of precedent and applies it to the problem of government mass data collection. It argues that before the government can engage in such surveillance, there must be a regulatory scheme in place. And by changing the default rule from allowing police to collect absent legislative prohibition, to banning collection until there is legislative action, legislatures will be compelled to act (or there will be no surveillance). The Article defines what a minimally acceptable regulatory scheme for mass data collection must include and shows how it can be grounded in the Constitution.

The Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution
would permit multistate or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a foreign defendant, no such state may exist.

This issue potentially implicates a range of difficult and unsettled doctrinal, practical, conceptual, and theoretical questions—about both personal jurisdiction and class actions. This Article, however, proposes a clean solution that coheres with existing case law while retaining the vitality of class actions to provide meaningful remedies in cases where systemic wrongs have nationwide consequences. On this approach, specific jurisdiction would be proper in any case where (a) there is specific jurisdiction over the named plaintiff’s claim against the defendant; and (b) a class action led by that plaintiff would satisfy the certification requirements of Rule 23. This solution finds support not only in longstanding practice prior to Bristol-Myers, but in the more fundamental principles and policies underlying specific jurisdiction. The impact of these underlying values has been further bolstered by the Supreme Court’s most recent decision on personal jurisdiction—Ford Motor Co. v. Montana Eighth Judicial District Court. The upshot is that personal jurisdiction can exist over a class action even if the forum state would not have personal jurisdiction over a hypothetical separate action by an out-of-state individual who is an unnamed member of the class.

Moreover, this Article’s proposal makes it unnecessary for courts to confront thornier questions that would otherwise arise. Those questions include: the proper timing and procedural mechanism for objecting to personal jurisdiction with respect to the claims of unnamed class members; whether the jurisdictional constraints apply differently in federal courts and state courts; whether they apply differently to claims based on substantive federal law as opposed to state-law claims; the precise scope and justification for pendent personal jurisdiction; and the extent to which post-service events in federal court (such as class certification) are subject to the more expansive Fifth Amendment test for federal court personal jurisdiction. Under this Article’s solution, courts have a straightforward way to examine personal jurisdiction over class actions that does not hinge on or implicate these other issues.

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.

This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

As they carry out their decennial redistricting duties, those in power sometimes audaciously manipulate district lines to secure an electoral advantage. In other words, they gerrymander. Often, however, the existing map already gives those in power a significant edge, and they may see little need for an overhaul. For them, the name of the game during redistricting is continuity rather than change.

This Article introduces the concept of “gerrylaundering” to describe mapmakers’ efforts to lock in their favorable position by preserving key elements of the existing map. Gerrylaundering and gerrymandering both serve anti-competitive ends, but they do so through different means. Unlike gerrymandering, gerrylaundering requires no conspicuous cracking and packing of disfavored voters. Instead, it involves what this Article dubs locking and stocking: Mapmakers lock in prior district configurations to the extent possible and stock each new district with one incumbent. Based on a review of redistricting practices in all fifty states, this Article concludes that gerrylaundering is widespread and that self-serving mapmakers commonly combine gerrylaundering and gerrymandering techniques in varying proportions to achieve their preferred results.

Recognizing gerrylaundering as a phenomenon enriches existing redistricting discourse by spotlighting the insidious nature of continuity strategies: They serve to advantage those in power, yet, since they appear more restrained than radical redesigns, they come with a veneer of legitimacy. This Article concludes that the veneer is thin. As a legal matter, efforts to preserve district cores and protect incumbents do not stand on the same footing as efforts to comply with traditional geographic districting principles. As a policy matter, gerrylaundering is more likely to subvert core democratic values than to foster them. At least two significant takeaways follow: First, courts should approach continuity criteria skeptically both when they review challenges to redistricting plans and when they draw maps themselves. Second, and more broadly, minimizing the legacy of prior maps has the potential to inject healthy dynamism into our system of district-based representation.

Memes are the paradigm of a new, flourishing creativity. Not only are these captioned images one of the most pervasive and important forms of online creativity, but they also upend many of copyright law’s fundamental assumptions about creativity, commercialization, and distribution. Chief among these assumptions is that copying is harmful. Not only does this mismatch threaten meme culture and expose fundamental problems in copyright law and theory, but the mismatch is even more significant because memes are far from an exceptional case. Indeed, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. This is not to say that the traditional creativity that copyright has long sought to protect is dead. Far from it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be sensitive to the misfit between the new creativity and existing copyright law if we want the new creativity to continue to thrive.

Our deregulated campaign finance system has a race problem. In this Article, we apply innovations in statistical methods to the universe of campaign contributions for federal elections and analyze the racial distribution of money in American politics between 1980 and 2012. We find that white people are extremely over-represented among donors. This racial gap in campaign contributions is significantly greater than the gap between white and nonwhite voter participation and white and nonwhite officer holders. It is also relatively constant across time and elected offices.

This result is an important missing piece in the conversation about equity in political participation. We argue that the courts and Congress should take steps to address the racial gaps in campaign finance participation. The participation and representation problems that flow from racial inequality in deregulated campaign finance could inform claims under the Voting Rights Act (VRA), and politico-financial inequalities certainly bear on the normative problems that the statute intends to address. But the most politically viable way to address the campaign finance racial gap lies in adoption of public financing for political campaigns, which offer the promise of increasing the racial representation of campaign contributions. When racial representation in contributions is improved, improved equality in the distribution of resources and power in electoral and political systems should follow.

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable outcomes. But some judges—movement judges—bring more to the bench than just empathy, raging against systemic injustice with an understanding of its burdens on real human lives. This Article argues that we need movement judges to realize the abolitionist and democracy-affirming potential of the Constitution. Although the judiciary is often described as the “least democratic” of the three branches of government, it has the potential to be the most democratic. With movement judges, the judiciary can become a force for “We the People.”

The United States Internal Revenue Service (IRS) has repeatedly taken the position
that because the IRS does not ask taxpayers to identify their race or ethnicity on
submitted tax returns, IRS enforcement actions are not affected by taxpayers’ race
or ethnicity. This claim, which I call “colorblind tax enforcement,” has been made
by multiple IRS Commissioners serving in multiple administrations (both
Democratic and Republican). This claim has been made to members of Congress
and to members of the press.

In this Article, I refute the IRS position that racial bias cannot occur under current
IRS practices. I do so by identifying the conditions under which race and ethnicity
could determine tax enforcement outcomes under three separate models of racial
bias: racial animus, implicit bias, and transmitted bias. I then demonstrate how such
conditions can be present across seven distinct tax enforcement settings regardless
of whether the IRS asks about race or ethnicity. The IRS enforcement settings ana-
lyzed include summonses, civil penalty assessments, collection due process hear-
ings, innocent spouse relief, and Department of Justice (DOJ) referrals.

By establishing that every major enforcement function of the IRS remains vulner-
able to racial bias, this Article also challenges the IRS decision to omit race and
ethnicity from the collection and analysis of tax data. The absence of publicly avail-
able data on IRS enforcement activities by race should not be interpreted as evi-
dence that no racial disparities exist. I conclude by describing alternative
approaches to preventing racial bias in tax enforcement other than the current IRS
policy of purported colorblindness.

Structural constitutional law regulates the workings of government and supplies the
rules of the political game. Whether by design or by accident, these rules sometimes
tilt the playing field for or against certain political factions—not just episodically,
based on who holds power at a given moment, but systematically over time—in
terms of electoral outcomes or policy objectives. In these instances, structural con-
stitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases,
with a focus on biases affecting the major political parties. Recent years have wit-
nessed a revival of political conflict over the basic terms of the U.S. constitutional
order. We suggest that this phenomenon, and a large part of structural constitu-
tional conflict in general, is best explained by the interaction between partisan
polarization and structural bias, each of which can intensify the other. The Article
also offers a typology of structural biases, keyed to the contemporary United States
but potentially applicable to any system. To date, legal scholars have lagged social
scientists in investigating the efficiency, distributional, and political effects of gov-
ernance arrangements. The concept of structural bias, we aim to show, can help
bridge this disciplinary gap and thereby advance the study of constitutional design
and constitutional politics.

In the current model of federal-Indian relations, the United States claims a plenary
legislative power, as putative guardian, to regulate Indian tribes. Under this model,
tribes are essentially wards in a state of pupilage. But the federal-tribal relationship
was not always so. Originally, the federal government embraced, even promoted, a
more robust model of tribal sovereignty in which federal-Indian treatymaking and
diplomacy figured prominently. Through treaties, the United States and tribes nego-
tiated territorial boundaries, forged alliances, facilitated trade, and otherwise man-
aged their relations. In 1871, Congress attempted to put an end to federal-Indian
treatymaking by purporting to strip tribes of their status as legitimate treaty part-
ners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties.
Since that time, the 1871 Act and the plenary power-pupilage model it entrenched
have grown deep roots in federal Indian law and the policies of the United States.
Congress has aggrandized its role in tribal life at the expense of tribal sovereignty,
and the coordinate branches of the federal government have acquiesced in this
foundational shift.

The literature of federal Indian law has wrestled with the doctrine of plenary power,
contemplated the fate of the federal-tribal treaty relationship, and questioned the
constitutionality of the 1871 rider. This Article posits new arguments for the uncon-
stitutionality of the 1871 Act, uprooting the presumptions underlying the Act and
revitalizing the prospect of federal-Indian treatymaking. Two recent developments
provide an opportunity for such a transformation. In Zivotofsky v. Kerry, the
Supreme Court held that the President alone possesses the power to recognize for-
eign states and governments. While Zivotofsky was a landmark case for U.S. for-
eign relations law, its potential significance for federal Indian law has gone
underappreciated. Zivotofsky did not directly address the locus of power to recog-
nize tribal sovereignty to enter treaties, but it prompts the question and provides a
blueprint for arriving at an answer. Engaging that blueprint, this Article argues that
the President possesses the exclusive power to recognize tribes’ sovereign capacity
to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to
limit that power. In our view, the President can and should unilaterally reengage in
federal-Indian treatymaking, revitalizing treatymaking and reanimating the sover-
eignty model of federal-Indian relations.

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates.

The authors find that textual gerrymandering—suppressing some relevant texts while picking apart others, as well as cherry-picking context—has been pervasive. Texts and contexts are chosen to achieve particular results—without any law-based justification. Further, this Article shows that, by adopting the seemingly benign “we are all textualists now” position, liberals as well as conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) even as the Court rejects the production economy (the legislative authors’ meaning).

Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean John F. Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.” This Article concludes by affirming the republican nature of Madisonian constitutional design and situating the Court’s assault on republican evidence as part of a larger crisis posed by populist movements to republican democracies today.

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of their employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique the law’s interactive requirements. The process does not appear in the statute, but is an agency’s conceptualization of the mandate as an idealized exchange. By evaluating new empirical evidence relating to race, class, and gender outcomes against the meso-level theories underlying the mandate, this Article argues that the process disempowers employees through deficits of information, individuated design, and employers’ resistance to costs. Nonetheless, momentum to replicate the mandate to accommodate pregnancy and other workers’ needs continues apace.

As the workplace is increasingly deemed essential to societal well-being, this new frame reveals the law’s design flaws and unfulfilled potential. In response, this Article proposes reallocations of power so that the state may gather and publicize organizational precedent to facilitate structural analysis, regulation, and innovation at scale; legally recognize that antidiscrimination work, particularly dismantling ableist environments, is a collective endeavor; and expand the social insurance model for accommodations. Perhaps, then, the ADA’s original vision of institutional transformation may become possible.

In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.

In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.

With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting, but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.

What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order.

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals—an us versus them—where the judges vote in blocs aligned with the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this Article, we test whether en banc review is now or has ever been weaponized. We make use of an original data set—the most comprehensive one of which we are aware—that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule-of-law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018–2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc review. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule-of-law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean.

This Article is the first to frame a right of the public to benefit from our consumer big data. Drawing on insights from property theory, regulatory advances, and open innovation, the Article introduces a model that permits controlled access and the use of big data for public interest purposes while protecting against privacy harms, among others. I propose defining a right of access to pooled personal data for public purposes, with sensitive information safeguarded by a controlled-access procedure akin to that used by institutional review boards in medical research today. To encourage companies to voluntarily share data for public interest purposes, the Article also proposes regulatory sandboxes and safe harbors akin to those successfully deployed in other domains, such as antitrust, financial technology, and intellectual property law.

When it comes to combating structural racism, representation matters, and this is true for criminal defense as much as it is for mental health services and education. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches. First, it connects indigent representation to existing literature from other fields—clinical therapy and education—both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients. To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust, factors that the American Bar Association identifies as integral to criminal defense. Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine. The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to people who qualify for appointed counsel.

Abusive tax avoidance and tax evasion by high-income taxpayers pose unique threats to the tax system. These strategies undermine the tax system’s progressive features and distort its distributional burdens. Responses to this challenge generally fall within two categories: calls to increase IRS enforcement and “activity-based rules” targeting the specific strategies that enable tax avoidance and evasion by these taxpayers. Both of these responses, however, offer incomplete solutions to the problems of high-end noncompliance.

This Article presents the case for “progressive tax procedure”—means-based adjustments to the tax procedure rules for high-income taxpayers. In contrast to the activity-based rules in current law, progressive tax procedure would tailor rules to the economic circumstances of the actors rather than their activities. For example, under this approach, a high-income taxpayer would face higher tax penalty rates or longer periods where the IRS could assess tax deficiencies. Progressive tax procedure could also allow an exception for low-value tax underpayments, to avoid excessive IRS scrutiny or unduly burdensome rules for less serious offenses.

Progressive tax procedure could address the unique challenges posed by high-end tax noncompliance and equalize the effect of the tax procedure rules for taxpayers in varying economic circumstances. It could also complement the alternative approaches of increasing tax enforcement and activity-based rules while avoiding the limitations of relying exclusively on these responses.

After developing the normative case for progressive tax procedure, the Article illustrates how it could be applied in three specific areas: accuracy-related tax penalties, the reasonable cause defense, and the statute of limitations. These applications illuminate the basic design choices in implementing progressive tax procedure, including the types of rules that should be adjusted and the methods for designing these adjustments.

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films. Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online. This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable—both consented to in fact and consensual in nature—it should not be deprived of constitutional protection.

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, former U.S. President Trump and others have suggested suing China for damages. This “lawsuit approach” draws on a deep-seated conception of international law: States have a sovereign “right to be left alone”; the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit approach—not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments made using the lawsuit approach (based on the International Health Regulations and the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit approach faces difficulties stemming from the lack of deep normative agreement in international law on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit approach leads back to the global conversation about the allocation of losses that it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”), making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit approach relies on international law as a means to achieve corrective justice while denying its implications for distributive justice. We argue that this is conceptually impossible. Allocating responsibility for the pandemic implicates inherently distributive concepts: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and expense countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independent of its content. The misfortunes derived from the pandemic are not conceptually different from the mis- fortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit approach might be unpleasantly surprised by where that road leads them.

The Federal Trade Commission Act’s ban on “unfair . . . acts and practices” would, on its face, seem to give the FTC an awesome power to define proper treatment of consumers in changing conditions. But even in a world of widespread corporate surveillance, ongoing racial discrimination, impenetrably complex financial products, pyramid schemes, and more, the unfairness authority is used rarely, mostly in egregious cases of wrongdoing. Why?

The standard explanation is that the more expansive notion of unfairness was tried in the 1970s, and it failed spectacularly. The FTC of this era was staffed by bureaucrats convinced of their own moral superiority and blind to the self-correcting dynamics of the market. When the FTC finally reached too far and tried to ban television advertising of sugary cereals to children, it undermined its own legitimacy, causing Congress to put pressure on the agency to narrow its definition of unfairness.

This Article argues that this standard explanation gets the law and the history wrong, and, thus, that the FTC’s unfairness authority is more potent than commonly assumed. The regulatory initiatives of the 1970s were actually quite popular. The backlash against them was led by the businesses whose profit margins they threatened. Leaders of these businesses had become increasingly radicalized and well-organized and brought their new political clout to bear on an unsuspecting FTC. It was not the re-articulation of the unfairness standard in 1980 that narrowed unfairness to its current form, but rather the subsequent takeover of the FTC by neoliberal economists and lawyers who had been supported by these radicalized business leaders. The main limitation on the use of the unfairness authority since then has been the ideology of regulators charged with its enforcement. In fact, the conventional morality tale about the FTC’s efforts in the 1970s are part of what keeps this ideology dominant.

A reconsideration of the meaning of unfairness requires situating the drama of the 1970s and 80s in a longer struggle over governance of consumer markets. Since the creation of the FTC, and even before, an evolving set of coalitions have battled over what makes markets fair. These coalitions can be divided roughly into those who favor norm setting by government agencies informed by experts held accountable to democratic publics and those who favor norm setting by business leaders made accountable via the profit motive. The meaning of “unfair . . . acts and practices” has been defined and redefined through these struggles, and it can and should be redefined again to reconstruct the state capacity to define standards of fair dealing.

The American public is slowly recognizing the criminal justice system’s deep defects. Mounting visual evidence of police brutality and social protests are generating an appetite for something different. How to change this system is still an open question. People across the political spectrum vary in their conceptions of the pressing problems and how to solve them. Interestingly, there is one consequential and overlooked area of the criminal justice system where there is broad consensus: police quotas.

Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a certain number of arrests. Although law enforcement leadership typically denies implementing quotas, courts, legislators, and officers have all confirmed the existence of this practice and linked it to odious criminal justice problems such as racial profiling, policing for profit, and overcriminalization. These problems have led legislators in many states to implement statutory prohibitions on quotas. Some of these statutes are of recent vintage and others are decades old. Nevertheless, these prohibitions and their attendant litigation have escaped sustained analytical scrutiny. Legal scholars typically overlook police quotas, subsume them within other categories (e.g., broken windows policing), or give pat acknowledgment of their existence without explaining how they work.

This Article corrects these omissions and makes two arguments. First, it contends that police quotas are a significant but undertheorized feature of criminal law and procedure. Quotas make police rewards and sanctions significant features of punishment in ways that can trump criminal offending and pervert due process principles. Second, it argues that quota-based policing is a unique area where there is widespread agreement and possibilities for change. Liberals, libertarians, conservatives, police officers, police unions, and racial minorities have all criticized police quotas. These vastly different constituents have argued that quotas distort police discretion and produce unnecessary police-civilian interactions. This Article supplements these arguments with a novel descriptive, statutory, and jurisprudential account of police quotas in the United States. It offers a framework for under- standing the arguments for and objections to quotas, and proposes some normative strategies that could build on statutory and litigation successes.

Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to it—MDL is finally in public view. State attorneys general have resisted the opioid MDL’s intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law, and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases. Moreover, even as resistance to Opiates has dispersed some of the MDL’s early power, that resistance itself has come in the form of unusual procedural mechanisms.

MDL is designed for individual cases—giving similar suits filed in different districts an efficient pretrial process before sending them home for trial. In reality, that is pure fiction. Few cases ever return. And the MDL’s mode of coordination—from its anti-federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules—chafes at almost every aspect of procedure’s traditional rules and values. MDL is not-so-secretly changing the face of civil procedure.

This Article weaves together for the first time these exceptional features of MDL and their disruption of procedure’s core assumptions. Is MDL a revolution? Or simply a symptom of a larger set of modern procedural tensions manifesting in many forms? Either way, it begs the question: What do we expect of litigation on this scale?

We recognize that MDL fills important gaps by providing access to courts but argue for some return to regular order to safeguard due process, federalism, and sovereignty. We suggest specific shifts—from more pretrial motions to new paths for appellate review, attorney selection, and jurisdictional redundancy—where the normative balance seems particularly out of whack; shifts we believe are in line with the spirit of Federal Rule 1’s own inherent paradox—the ideal of “just, speedy and inexpensive procedure.”

We also offer the first comprehensive analysis of the historic suits over the opioid crisis. Opiates is the first MDL that pits localities against their own state attorneys general in a struggle for litigation control. Its judge has publicly stated that solving a national health crisis that Congress dumped in his lap is different from ordinary litigation. Opiates has even invented a new form of class action. It is hyper-dialectical, jurisdictionally competitive, outcome-oriented, repeat-player-rich, fiercely creative procedure.

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half Terms. The Article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The Article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third compare statutes that regulate entirely unrelated subject areas. Moreover, more than a few of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.

This Article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural choices. The Article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

This Article considers when optional case citations may do more harm than good. There are valid reasons for citing to non-binding precedent—to promote consistency in the law, for example, or to avoid wasteful redundancy. But unconsidered invocations of non-binding authority may also introduce error into individual opinions and distort the path of the law over time. This Article catalogues such dangerous citations as used in particular by federal district courts citing to other federal district courts with three goals in mind: to help judges use non-binding authority constructively, to help law clerks think critically about their citation practices, and to help readers of judicial opinions question the rhetoric of constraint.

In mapping these problematic uses of non-binding authority, the Article distinguishes between poorly conceived citations and poorly implemented citations. Poorly conceived citations are those for which non-binding precedent is simply not a useful authority. Examples of poorly conceived citations include reliance on prior opinions to establish facts or the content of another sovereign’s laws. Poorly implemented citations are those for which non-binding precedent may be relevant but should be selected and applied with care. Examples of poorly implemented citations include over-extended analogies and reliance on judge-made tests that are misaligned with the question being evaluated. This catalogue of poorly conceived and poorly implemented citations surfaces some common themes, including the need for better-designed tests and the challenges posed by modern research methods. But dangerous citations are not simply a matter of inadvertence, carelessness, or mistake; they may also be deployed for rhetorical purposes, in particular to signal legitimacy and restraint. The Article thus ends with a warning against “performative judging,” or the use of excessive citations to suggest greater constraint than the law in fact provides. Such citations are dangerous not just for the error they may introduce, but also because they obscure judicial choice and the inherently discretionary nature of judging.

Medicaid’s cooperative federalism structure gives states significant discretion to include or exclude various categories of noncitizens. This has created extreme geographic variability in noncitizens’ access to health coverage. This Article describes federalism’s role in influencing state policies on noncitizen eligibility for Medicaid and its implications for national health policy. Although there are disagreements over the extent to which public funds should be used to subsidize noncitizen health coverage, this Article reveals that decentralized policymaking on noncitizen access to Medicaid has weakened national health policy by increasing wasteful spending and exacerbating inequities in access to healthcare. It has failed to incentivize the type of state policy experimentation and replication that justifies federalism arrangements in other contexts. Rather, federalism has (1) enabled states to enact exclusionary policies that are ineffective and inhumane and (2) created barriers for states to enact inclusionary policies that advance the normative goals of health policy. This Article concludes that noncitizen access to health coverage is best addressed through centralized policymaking.

This Article contributes to scholarly conversations about federalism and healthcare by providing a case study to test the efficacy of federalism arrangements in achieving equity for those who were left behind by health reform. More broadly, it adds to the federalism literature by synthesizing insights from three fields that rarely comment on one another: health law, immigration law, and federalism theory.

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively.

In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Congress’s Article III power are profound. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. Compared with judicial review, the political constraint is, of course, less formal and predictable. But that does not mean that the political constraint is weak. A successful exercise of its Article III power will require a majority in Congress, and, in most instances, a President, who agree both on the substantive policy at issue and on the political viability of overriding the public expectation that Congress should face a judicial check. In such instances, we should welcome the exercise of Congress’s Article III power. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

Racial disparities in maternal mortality have recently become a popular topic, with a host of media outlets devoting time and space to covering the appalling state of black maternal health in the country. Congress responded to this increased societal awareness by passing the Preventing Maternal Deaths Act at the tail end of 2018. The law provides states twelve million dollars annually, for five years, to fund maternal mortality review commissions—interdisciplinary collections of experts that evaluate and investigate the causes of every maternal death in a jurisdiction. Fascinatingly, although activists, journalists, politicians, scholars, and other commentators understand that the maternal health tragedy in the United States is a racial tragedy, the Preventing Maternal Deaths Act completely ignores race. Indeed, the term “race” does not appear anywhere in the text of the statute. The irony is striking: An effort to address a phenomenon that has become salient because of its racial nature ignores race entirely.

The racial irony embodied by the Preventing Maternal Deaths Act serves as an invitation to investigate not only the Act itself, but the national conversation that is currently taking place about racial disparities in maternal deaths. Indeed, in important respects, if the general discourse that surrounds racial disparities in maternal mortality is impoverished, then we should expect that the solutions that observers propose will be impoverished as well. This is precisely what this Article discovers. The analysis proceeds in four Parts.

Part I provides an overview of racial disparities in maternal mortality, identifying the various elements that have made pregnancy, childbirth, and the postpartum period much more dangerous for black women than their white counterparts in the United States. Part II then offers critiques of the national conversation around racial disparities in maternal mortality and warns of both the marginalizing effects it may have on black women and the possibility that it will lead to blaming black women for dying on the path to motherhood.

Part III describes the Preventing Maternal Deaths Act in some detail. Part IV follows with a critique of the Act, identifying three deficiencies. First, it notes the racial erasure contained in the Act—the fact that the Act nowhere mentions the racial dimensions of the nation’s maternal health debacle. It then observes the predicament created by the fact that erasing race likely was essential to the very passage of the Act. Second, it notes that because the Act does not direct the state maternal mortality review commissions to investigate the structural and institutional forces that produce excess maternal deaths in the United States, it leaves space for maternal mortality review commissions to simply blame the dead for dying. Third, it notes that the Act does no more than fund the gathering of more data about pregnancy-related deaths. However, it observes that there is a strong argument to be made that we do not need more data. We already know why women are dying, and we already know how to save them. In this way, the tragedy of maternal mortality in the United States is not a problem of information; it is a problem of political will. To the extent that Congress chose to intervene in the maternal health debacle not with policy changes, but rather with an attestation that we need more information, the Preventing Maternal Deaths Act demonstrates that we still lack the political will to make the concrete changes that will make pregnancy and childbirth safe.

There is a widely held belief that, in order to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour. After all, the logic goes, the incentives for prisoners who face the death penalty differ from those who do not. Noncapital prisoners typically try to move the terminal point of a sentence (release) forward, and capital prisoners typically try to push that point (execution) back. This theory of litigant behavior—what I call the “Strategic Delay Account,” or the “SDA”—underwrites an extraordinarily harsh institutional response. It primes courts to discount real constitutional grievances and to punish participating lawyers, and it spurs legislatures to restrict crucial remedies.

In this Article, I explain that the SDA inaccurately describes condemned prisoner behavior, both because it assumes a non-existent incentive structure and because it ignores the major structural causes of delayed litigation. First, deferred litigation is risky, and fortune disfavors the bold. Procedural doctrines that operate across post-conviction law strongly incentivize the promptest conceivable presentation of claims. Second, prisoners often omit challenges from early rounds of litigation not because they have done so strategically, but instead because some claims are inherently incapable of being asserted at that time. Third, the volume of end-stage litigation reflects the comprehensive failure of American jurisdictions to provide adequate legal services; condemned prisoners are often functionally unrepresented from the moment early-stage proceedings conclude until the state sets an execution date.

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, the pace and direction of innovation for accessible design.

This Article argues that two of the most important drivers of innovation for accessible design have been social welfare laws and antidiscrimination laws. Both were responsible, in part, for the revolution in accessibility that occurred in the second half of the twentieth century. Unlike standard innovation incentives, however, these laws operate on the demand side of the market. Social welfare laws and antidiscrimination laws increase the ability and willingness of parties to pay for accessible technology, ultimately leading to greater supply. But in doing so, these laws generate a different distribution of the costs and benefits of innovation than supply-side incentives. They also produce their own sets of innovation distortions by allowing third parties to make decisions about the designs that people with disabilities have to use.

The law can promote innovation, and it can hinder it. For example, the law’s relationship to the wheelchair, the most important accessibility innovation of the twentieth century, produced both results. Policymakers have choices about which legal incentives doctrines they can use and how they can use them. This Article evaluates those tools, and it provides guidelines for their use to encourage accessible technology in particular and innovation generally.

Conversations about police reform in lawmaking and legal scholarship typically take a narrow view of the multiple, complex roles that policing plays in American society, focusing primarily on their techniques of crime control. This Article breaks from that tendency, engaging police reform from a sociological perspective that focuses instead on the noncriminal functions of policing. In particular, it examines the role of policing in the daily maintenance of racial residential segregation, one of the central strategies of American racial inequality. Unlike previous work that touches on these issues, this Article argues that police reformers and police leaders should adopt an anti-segregation approach to policing. It also offers legal frameworks and policy prescriptions that flow from an anti-segregation ethic in police governance.

This Article begins by setting forth a rich account of residential segregation, clarifying the distinction between easily measurable proxies for segregation and the type of segregation with which law and policy should be concerned: the spatial separation that confines, subordinates, and dominates. It then identifies and illustrates six mechanisms through which American policing perpetuates residential segregation, drawing from sociological research, including qualitative narratives collected in Dallas County, Texas; Cuyahoga County, Ohio; and Baltimore, Maryland. Next, the Article sketches the architecture of anti-segregation policing, offering legal frameworks based on fair housing law and federal and state consent decrees, as well as a non-exhaustive set of practical approaches police departments could take to advance an anti-segregation agenda. Finally, the Article engages a fundamental question central to police transformation movements today: Is meaningful police reform, including anti-segregation policing, possible in a society that is structured through race?

Recent, robust research makes clear that childhood trauma, such as abuse or neglect in the home or the chronic lack of basic necessities, is common and can cause and exacerbate disabilities in learning and behavior. These disabilities prevent many children from making educational progress, but evidence-based strategies now exist to give these children access to education. To appropriately implement these strategies, the nation’s educational disability rights laws—the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (together, “Section 504”)—must become “trauma-responsive” or “healing centered.” The imperative to make education for children with trauma-induced disabilities trauma-responsive is not just moral, however; it is also legal. IDEA’s “Child Find” and Section 504’s “Locate and Notify” mandates require public school systems to identify and provide an evaluation and individualized education to all children with disabilities. This is the first article in the legal literature to describe the need to make IDEA, Section 504, and their implementation trauma-responsive. This article is also the first to propose three ways to meet this need: 1) requiring assessment of trauma’s impact when trauma is suspected to be a cause of disability in a child; 2) amending IDEA to add a stand-alone, trauma-specific disability category through which children can become eligible for special education and recognizing that trauma causes disability under Section 504; and 3) putting trauma-responsive specialized instruction, related services, and accommodations into individualized educational programs developed under IDEA (“IEPs”) and programs developed under Section 504 (“504 plans”).

A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation. 

It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism. 

These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies. 

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decisionmaking rights of parents. 

Because parents have constitutionally protected authority to make important decisions for their children, litigation brought on a child’s behalf presents a collision of rights and obligations between parents, children, and “the state,” here, the federal courts. Court doctrine interpreting Rule 17(c) is tangled and inconsistent and fails to offer clear guidance regarding what preference, if any, parents should have to represent their children’s interests in litigation. This Article proposes for the first time that constitutional doctrine establishing parents’ protected decisionmaking authority should make parents the default representatives for their children in federal civil litigation. The Article presents an account of court practices and an analytical framework to guide courts’ application of Rule 17(c), which implements the general constitutional rule of parent priority while upholding the courts’ responsibility to protect children’s interests. 

A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences. In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe. Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States is car-dependent by choice. But it is also car-dependent by law. This Article conceptualizes this problem and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: Law not only inflames a public health crisis but legitimizes it, ensuring the continuing dominance of the car. The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity. 

All punishment comes to an end. Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison. Though it is tempting to think of the “end” in concrete, factual terms—for example, as the moment when the prisoner is released—this concept also has normative dimensions. Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society. Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community. The “practices of incarceration”—including the prison environment and prison programs—are thus critically important because they can either facilitate or impede a prisoner’s reentry into society. However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny. 

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return. Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates. The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return. 

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly. Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society. This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm—what might be termed “punishment-plus.” The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups. 

Finally, the Article recommends institutional design changes to mitigate “us-versus- them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison. These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity. 

Policymakers on both ends of the political spectrum have been looking for ways to reduce prescription drug prices. Democrats have also been working on expanding healthcare coverage, including different versions of Medicare for All. All these proposals have been framed as issues of access and spending. If innovation incentives come up at all, it has primarily been because pharmaceutical companies claim that reducing drug prices will threaten innovation by lowering the returns from their patents. 

In fact, however, pharmaceutical access and innovation incentives are intimately related. Health insurance can change the structure of market demand. And Medicare in particular does so in a way that gives a very large subsidy to patented drugs, such that current U.S. pharmaceutical profits are often higher than they would be in an unsubsidized market. Medicare reimbursement rules thus can lead to greater-than-monopoly pricing of patented drugs, dramatically expanding the incentive U.S. policy provides to pharmaceutical companies. By not recognizing the Medicare innovation subsidy, policymakers have ignored one of the largest sources of innovation incentives. That extra incentive might be a good thing or a bad thing, depending on how much incentive pharmaceutical developers need. It may well be good for some classes of drugs and bad for others. But it is important for policymakers to understand how access policies like Medicare also serve as innovation incentives. This extra innovation subsidy may open the policy space for hybrid proposals that combine expanded government insurance like Medicare for All with lower drug prices while preserving or even increasing current returns to innovation. 

As of January 1, 2019, the federal government held more than 51,000 noncitizens in immigration detention. Over the course of a year, nearly half a million noncitizens will pass through Department of Homeland Security custody within the interior of the United States while the government initiates proceedings to remove them from the country. Many of those detainees pursue immigration relief and contest both their detention and removal. However, numerous reports from the Office of the Inspector General and immigration practitioners consistently observe substantial barriers to effective communication from detention: Detainees are frequently held in or transferred to isolated locations, detention facilities often do not provide adequate telephone access or even alternative forms of communication, and facilities often deny or substantially delay in-person meetings with attorneys or other visitors. These barriers significantly affect the ability of unrepresented detainees to gather and present relevant evidence critical to litigating their removal claims. They also undermine essential communication between legal counsel and the detainees they represent in those proceedings. 

This Article argues that due process imposes affirmative obligations on the government to facilitate evidence gathering and communication with legal counsel for those noncitizens that it detains. While previous scholarship has advanced arguments for “immigration Gideon”—i.e., suggesting noncitizens should have a right to appointed counsel at state expense—our intervention instead focuses on how conditions of confinement that impair communication with counsel and evidence gathering may themselves run afoul of noncitizens’ Fifth Amendment due process rights. 

We offer a novel interpretation of recent Supreme Court and circuit court precedents on civil detention in order to ground noncitizens’ right to communicative access in the Fifth Amendment and propose a new framework for evaluating noncitizens’ rights to effective communication. Importantly, we also argue that the scope of noncitizen detainees’ rights to communicate with counsel should not be determined by the stark division between criminal and civil detention precedents. Rather, noncitizens’ access to counsel rights should encompass the procedural protections due process requires whenever the government acts as both initiator of adverse legal proceedings and jailor, including those protections traditionally associated with the Sixth Amendment. Our analysis finds that the scope of governmental obligation to provide communicative access derives from the noncitizens’ liberty interest in avoiding both detention and deportation and, in particular, follows from the government’s dual role in immigration proceedings as both initiator of adverse proceedings and jailor. The obligation to ensure a “full and fair” hearing requires that the government not impose barriers to communication that provide it with an unfair advantage in the litigation of noncitizens’ removal claims. 

We conclude that the Fifth Amendment’s Due Process Clause imposes affirmative obligations for the government to facilitate evidence gathering and communication between noncitizen detainees and their counsel. While the scope of the state’s affirmative obligations may vary in accordance with the immigration status of the detainee, we argue that in all cases the Fifth Amendment requires the federal government to provide detained noncitizens adequate means to solicit legal representation, meet privately with retained counsel, communicate with potential witnesses, access necessary records, and prepare evidence and testimony. Conditions of confinement that frustrate these basic guarantees offend the Fifth Amendment’s protection of a full and fair hearing and should be held unconstitutional. 

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts have done almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right is now approaching a tipping point. Either it evolves, or risks becoming irrelevant. 

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the equally important question of why states refuse to provide the necessary resources. As a result, states have never stopped engaging in the behavior that leads to the funding failures in the first place.

This Article argues that states refuse to fully fund low-income students’ education because they have ulterior aims and biases—maintaining privilege for suburban schools, lowering taxes for wealthy individuals, and not “wasting” money on low-income kids. States go to extraordinary lengths to manipulate school funding formulas to achieve these ends. Thus, the various policies that produce inequality and inadequacy are not just benign state failures; they are intentional efforts to gerrymander educational opportunity. Understood this way, school funding manipulations violate federal equal protection and state constitutional rights to education. Reframing school funding failures as gerrymandering can both create a much-needed federal check on educational inequality and reinvigorate the enforcement of state constitutional rights to education.