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...
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Black farm ownership has declined by more than 90% since the 1920s, making it one of the starkest yet least examined examples of racial injustice in American history. This Essay argues that these losses are not the product of isolated discriminatory acts, but the consequence of a durable agricultural oligarchy: a system of concentrated economic, political, and cultural power that has structured American agriculture since the antebellum era. By...
Food is a powerful drug. Big companies have pumped meals full of addictive substances that keep people hooked on unhealthy foods at the expense of their health. Modern scientific research has demonstrated that hyper-palatable foods have the same neurological effects as other addictive substances. Given that unbridled consumption of food can have serious health effects, food addiction is a dangerous illness. Despite these deleterious impacts, the...
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...
Climate change is one of the greatest threats facing the United States. The majority of Americans believe that the federal government should be doing more to confront the climate challenge and prioritize the buildout of infrastructure supporting the energy transition. In spite of this, U.S. climate policy is moving in the opposite direction. In his new book, Climate of Contempt: How to Rescue the U.S. Energy Transition From Voter Partisanship,...
Medicare Advantage insurers hold vast power over access to care for Medicare beneficiaries enrolled in their plans. Among other things, these insurers make the all-important determination as to whether care is “medically necessary” and thus warrants coverage under Medicare. Recently, these insurers have turned to artificial intelligence to help with these determinations. This trend has yielded concerning results, exacerbating both inaccuracy...
In 1901, the Supreme Court held that the United States could control territorial land possessions indefinitely, without plans to eventually grant statehood. Over the next twenty-one years, the Court handed down what are infamously known as the Insular Cases: a series of decisions that reaffirmed the distinctions between “incorporated territories”—those destined for statehood—and “unincorporated territories,” the fates of which...
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...
Nonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success...