The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dual-sovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied....
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The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how...
The age of digital distribution exacerbates transaction costs in two distinct ways. First, the dissemination of large quantities of works requires permissions from myriad copyright holders. Second, new technologies lower the cost of content creation, resulting in millions of individual creators, rather than a discrete set of large industry repeat players. The potential of class actions to address this rising transaction cost problem has gone largely...
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...
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,...
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...
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...
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...