Police departments nationwide train their officers to assume that a member of the community is armed using the “characteristics of an armed person” (CAP) framework. This framework, composed of multiple characteristics that ostensibly allow police to determine whether a person is carrying a handgun, has become a pseudoscientific justification for stop-and-frisk.
The CAP framework is a form of proactive policing: patrolling to find potential...
Native Americans pay taxes. Territories, by contrast, tax in place of the federal government. Both live with the legacy of American imperialism. Both seek the elusive fiscal self-governance and autonomy promised by Congress. The Supreme Court—through preemption, the plenary power doctrine, and interpretive principles—has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By...
Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance...
The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability...
Suspensions, expulsions, and school-based arrests: These exclusionary and overly punitive disciplinary responses disproportionately impact Black students and have become normalized throughout the nation. In reality, school pushout, or the disciplinary sanction of removing students from the classroom, contravenes the very purpose of public education to prepare children to engage as full citizens in our democratic republic.
This Article attributes...
Antitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite...
Over the past decade, dozens of state and local jurisdictions across the country and political spectrum have ended fines and fees in juvenile courts. One monetary sanction, however, is routinely left out of reform efforts: victim restitution. Unlike most fines and fees, youth restitution—paid to victims or harmed parties for economic loss or injury—continues to enjoy wide support, under the assumption that it promotes youth rehabilitation,...
The right to have your day in court is foundational to the U.S. criminal legal system. Yet, many noncitizens in immigration detention facing criminal charges are denied this right when ICE routinely fails to produce immigration detainees to criminal court to resolve charges. In immigration proceedings, immigration judges regularly use those unresolved charges to detain and deport. This Article is the first to examine this obstruction of court access...
In vitro fertilization (IVF) presents a neglected puzzle. IVF is used to create nearly one in forty babies born in the United States each year. But it remains deeply underregulated and has rarely been subject to the usual wrangling on matters of reproduction. IVF’s regulatory vacuum gets chalked up to America’s polarization over abortion. Yet for half a century, our laws and politics have treated these practices nothing alike. Abortion’s...
The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.
This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining...