Essay

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government’s efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment’s anticommandeering...

Common private-ordering theories predict that merchants have an incentive to act honestly because if they do not, they will get a bad reputation and their future businesses will suffer. In these theories, cheating is cheating whether the cheat is big or small. But while reputa­tion-based private ordering may constrain the big cheat, it does not necessarily constrain the small cheat because of the difficulty in discover­ing certain...

The rules and practices of criminal procedure assume a clean separa­tion between the interests of the public and the interests of the lone defendant who stands accused. Even the names given to criminal pros­ecutions often declare this dichotomy, as in jurisdictions such as California, Illinois, Michigan, and New York that caption criminal cases “The People of the State of X v. John Doe.” This Essay argues that this traditional people/defendant...

While income inequality has become an increasingly central focus of public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but also by more hidden and pernicious background rules that systematically disadvantage and subordinate certain constituencies. This Essay focuses on a particularly crucial—and often underappreciated—site for the construction and contestation of...

One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emo­tional harm—measurement and verification. Instead of measuring the emo­tional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay...

This Essay argues that the Supreme Court’s political party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. The Court’s jurisprudence is grounded in a theory of democratic accountability—known as “responsible party government”—which views political parties primarily as speakers and presumes that electoral accountability emerges from the choice...

Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of consti­tutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican office­holders have been more likely...

There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police...

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.
There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently,...

This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals...