Article

DISCLOSURES FOR EQUITY

Atinuke O. Adediran*

This Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals...

CERTIORARI IN IMPORTANT CASES

Tejas N. Narechania*

The Supreme Court has wide discretion to choose the cases it will decide. But how does the Court exercise this discretion? The Supreme Court’s rules explain that it may hear any case “important” enough for it to decide. Unsurprisingly, commentators have criticized this standard as “hopelessly indeterminate” and “intentionally vague.”

The Court, however, has said more about how it decides whether to grant review. We need simply...

America’s mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of “nonincarceration mass incarceration”: the widespread use of supervision conditions that separate people on parole, probation,...

SHARING THE CLIMATE

Rashmi Dyal-Chand*

Property law responds poorly to the lived reality of the climate crisis. In particular, it fails to address the uncontrollable negative externalities endemic to this crisis. Today, we need and share resources from which it would be ineffective and harmful to exclude our neighbors. Yet exclusion remains the cornerstone of much of American property law. In turn, the principle of autonomy—broadly defined to signify privacy, self-sufficiency, and...

ASSESSING AFFIRMATIVE ACTION’S DIVERSITY RATIONALE

Adam Chilton, Justin Driver, Jonathan S. Masur & Kyle Rozema*

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity...

This Article uncovers the intellectual foundations of presidential administration and—on the basis of original archival research and new contextualization—grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws...

THE PUZZLES AND POSSIBILITIES OF ARTICLE V

David E. Pozen* & Thomas P. Schmidt**

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar...

An unfamiliar equality principle is gaining prominence in consti­tutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the government’s interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implica­tions for other guarantees in constitutional law. This Article offers two arguments....

Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the of­fense. The immigration bureaucracy’s implementation of the INA, how­ever, involves a spectrum of penalties short of deportation. Using tools such as administrative...

THE RIGHT TO CONTEST AI

Margot E. Kaminski* & Jennifer M. Urban**

Artificial intelligence (AI) is increasingly used to make important deci­sions, from university admissions selections to loan determina­tions to the distribution of COVID-19 vaccines. These uses of AI raise a host of con­cerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues in­stead—or re­ally,...