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Most scholars who study felon disenfranchisement trace its roots back to Reconstruction. Southern states drew up laws to disenfranchise people convicted of felonies as an ostensibly race-neutral way to diminish the political power of newly freed Black Americans. Viewed against this historical backdrop, the onset of mass incarceration in the current era expands the impact of a practice intended to be both racist and punitive from the start.

This account is true, but it is incomplete. Non-criminal mass institutionalization has also played—and continues to play—a role in systematic disenfranchisement. Marshaling a wealth of archival and historical evidence, from newspapers, legislative debates, congressional hearings, and court cases, I reveal that institutional disenfranchisement is not just about mass incarceration—a singular phenomenon sparked by the Civil War that happens solely within the carceral state and targeted only freed Black people. Institutional disenfranchisement began much earlier, included more spaces than the prison, and initially targeted white men. Indeed, the more familiar prison disenfranchisement had a shadowy twin within the welfare state. Civil death includes more ghosts than previously imagined.

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the exclusion of immigrants from the political community because this exclusion compromises representational equality.

Many judges and scholars have read Section 2 of the Fourteenth Amendment as evidence of the Constitution’s commitment to universal representation—the idea that representation should be afforded to everyone in the political community regardless of whether they happen to be eligible to vote. Typically, this analysis starts and stops with Section 2’s first clause, the Apportionment Clause, which provides that congressional seats are to be apportioned among the states on the basis of “the whole number of persons in each State.” Partly for this reason, the Supreme Court’s lead opinion in Evenwel v. Abbott rejected the argument that “One Person, One Vote” requires states to equalize the number of adult citizens when drawing legislative districts, affirming that states can draw districts with equal numbers of persons.

But skeptics of the universal representation theory of the Fourteenth Amendment, most notably Justice Alito, have complained that this analysis is flawed because it ignores Section 2’s less-known and never-enforced second clause: the Penalty Clause. Under the Penalty Clause, states that deny or abridge otherwise qualified citizens’ right to vote are penalized with a reduction of their congressional representation. Any theory of representation drawn from the Fourteenth Amendment, the skeptics argue, must grapple with all of Section 2.

This Article takes up that call and explains how the Penalty Clause is not only consistent with but also reinforces the Fourteenth Amendment’s broader commitment to universal representation. Contrary to common misconceptions about the Penalty Clause, the Clause is structured so that the state as a whole loses representation in Congress, but no individual within the state is denied representation. In other words, the Penalty Clause does not operate by subtracting those wrongfully disenfranchised from a state’s total population prior to congressional apportionment. Rather, it imposes a proportional reduction derived from the percent of the vote-eligible population denied the vote that is scaled to an offending state’s total population. The Penalty Clause thus does nothing to upend Section 2’s advancement of universal representation. If anything, the Penalty Clause actually reinforces Section 2’s commitment to that idea. By reducing a state’s representation proportionally, it contemplates the representational interests of nonvoters, a key feature of the universal representation theory.

The right to vote is foundational to our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to meltdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.

To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to build, fund, and administer elections systems. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent management, and the right to democratic structures), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.

For nearly a century, the American Bar Association (ABA) has overseen the standards governing accredited law schools, which in turn constitute the primary pathway to the practice of law in the United States. ABA Standard 503 requires that all such schools use a “valid and reliable” examination to assess candidates for admission. Currently, the Law School Admission Test (LSAT) is the only examination that the ABA has officially recognized as satisfying the standard. However, the LSAT—now approaching its eightieth year—has strayed far from the purposes it was originally designed to serve. Once a simple tool to aid in the assessment of diverse applicants, it has in recent decades become a significant barrier to entry with disparate negative impacts on women, racial minorities, individuals of low socioeconomic status, and, perhaps most egregiously, those with disabilities. This Note argues that Standard 503 should be rescinded. Such a step is necessary both to stimulate innovation in law school admissions and to fulfill the ABA’s mandate of promoting diversity in the legal profession and serving the larger public good.

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.

New York City Housing Authority (NYCHA) deprives hundreds of residents of their housing every year without affording them due process. Based on the allegedly undesirable behavior of one household member, NYCHA can begin a termination of tenancy action against an entire family. Using the threat of termination as leverage, NYCHA coerces the tenant of record into permanently excluding the “undesirable” occupant, barring them from living with or visiting their family. The excluded family member is given no notice of the termination action and no opportunity to contest their permanent exclusion.

This Note contends that authorized occupants in NYCHA housing have due process rights which mandate notice and the opportunity to be heard before they lose their home. NYCHA does not currently recognize such rights. But, as this Note will show, authorized occupants have a property interest in public housing. NYCHA’s practice of permanent exclusion deprives them of that interest. This Note suggests alternatives for NYCHA to consider instead of relying on permanent exclusion as a means of crime reduction. Ultimately, the goal of this Note is to push NYCHA to live up to its mission: to provide decent and affordable housing to low-income New Yorkers.

In 2018, the Ninth Circuit ruled in Martin v. City of Boise that the city’s ordinance criminalizing individuals for sleeping or camping outdoors in public space—an increasingly popular method for cities to regulate the homeless—is unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause. Martin was not the first case in which a court struck down an anti-homeless ordinance under the Eighth Amendment. However, it was the first to deem it unconstitutional for a city to punish a homeless person for sleeping outside when shelters are not “practically available,” even if they technically have available beds. The court in Martin said the shelters at issue were not practically available because they were religiously coercive. This Note argues, however, that courts reviewing criminalization measures should consider whether shelters are practically available to homeless individuals for reasons beyond religious coercion. Many functional barriers to shelter deprive homeless individuals of a meaningful choice, and the Eighth Amendment prevents governments from punishing individuals for matters beyond their control. Courts should make individualized inquiries when considering the constitutionality of criminalization measures to assess whether individuals experiencing homelessness truly have a meaningful “choice” in sleeping outside. However, the constitutional infirmities behind criminalization measures, the highly factual inquiries required of courts to determine their constitutionality, and their exacerbation of homelessness underscore the need for cities to stop criminalizing homelessness.

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?