Courts and scholars have long disagreed about whether arbitrators follow the law. It is difficult, however, to assess whether arbitration is lawless. For one, the process is private, usually confidential, and often generates unreasoned unwritten awards. In addition, determining whether an arbitrator decided a case “correctly” is highly subjective. Thus, the literature on point relies on crude proxies such as surveys of arbitrators, the frequency...
CLR Forum
In recent years, the Supreme Court has developed a robust antidiscrimination principle rooted in the Free Exercise Clause that commands that generally available public benefits may not be denied to religious organizations because of their religious identity. In St. Isidore v. Drummond ex rel. Oklahoma, school-choice advocates sought to extend this principle to Oklahoma’s public charter school program, arguing that excluding a Catholic...
Legal scholars have written about how the Supreme Court’s criminal procedure jurisprudence since the 1970s has encouraged police exploitation of citizen ignorance. A clear example of this is the Court’s consent doctrine articulated in Schneckloth v. Bustamonte. Schneckloth teaches that police officers, when asking civilians for permission to search them, are not required to inform those civilians that they have a right to...
This Piece examines the deployment of Title VI of the Civil Rights Act of 1964 as a mechanism for regulating campus conflict following the 2023 to 2024 campus protests and seeks to reset the discourse in light of the statute’s history, doctrine, and role in higher education. Title VI is an important tool for addressing identity-based harassment, epithets, and violence between students, but it is neither designed nor effective as a tool for negotiating...
We commonly call the last fifty years of federal Indian law and policy the “tribal self-determination era.” This Piece argues that this era is actually three conceptually distinct though temporally overlapping phases of federal Indian law and policy development. Each of these three distinct phases is a step further dismantling the structures of federal paternalism and replacing them with laws and policies that support tribal nations’ strength,...
A new specter is haunting job seekers in the post-COVID-19 economy: “ghost jobs,” which are job listings by real companies advertising positions that do not actually exist or for which there is no present intention to hire. Ghost jobs do not simply waste the time and money of job applicants. They also reflect a new evolution in the harvesting and misuse of sensitive personal data, which inflicts privacy wounds on individuals while breaching...
This Piece responds to The New Abortion by Dov Fox and Mary Ziegler by critically examining their legal history of in vitro fertilization (IVF) regulation and their proposals for federal regulation to stave off regressive regulation. First, while admiring the value of their historical analysis, this Piece challenges the authors to delve more deeply into the internal dynamics of reproductive rights advocacy during the twentieth century...
Both emerging claims of constitutionally protected cognitive liberty and expanding state efforts to address alleged psychological harms associated with technology use necessitate deeper thinking about state interests that might be sufficient to justify regulation of constitutionally protected cognitive activity. Drawing from precedent recognizing state interests in other contexts, this Piece suggests a research agenda of five challenging questions...
In New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s adoption of the history and tradition test required analysis of historical gun and abortion regulations that produced two unacknowledged problems. First, history and tradition analysis revealed opposing historical traditions but implicitly required the Court to affirm a singular tradition. Second, because...
Freedom of thought has long been revered as a fundamental right, yet its doctrinal contours have remained underdeveloped. Two recent Supreme Court decisions—National Institute of Family and Life Advocates v. Becerra (NIFLA) and 303 Creative LLC v. Elenis—suggest a nascent but expansive free thought jurisprudence, one that increasingly shields religious actors not just from government interference in belief but also compliance...