Issue Archives

This Note argues that the allocations of power within the federal Constitution’s separation-of-powers framework hinder effective governance of environmental issues. The true problem is more than the sum of its parts: Several key failings of domestic environmental law result not from the shortcomings of any given statutory scheme but from the relationship between such statutory schemes, the boundary-defying and factually messy nature of environmental...

This Piece is a call to eliminate the de facto requirement that a law review article conclude with a list of actionable and feasible prescriptions, often law or policy reforms, that respond to the questions or analysis at the heart of the article. Traditionally, this is Part IV of the law review article, in which a scholar is expected to explain how the preceding twenty thousand words can and should bear on how we move forward in the world. These...

This Essay identifies mechanisms by which the law regulates access to marriage for adults with intellectual disabilities, exploring how statutes and court decisions give meaning to the concept of “capacity to marry.” The Essay identifies two previously unstudied and contradictory understandings of the relationship between marriage and capacity. One notion of “capacity to marry” operates to exclude adults with intellectual disabilities from...

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...

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...

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...

Historically, we have known little about the law enforcement actors who oversee a punitive deportation machine. Slowly, this is changing. Using the insights from Professor Irene Vega’s groundbreaking book on immigration enforcement agents and officers, this Book Review makes three points. First, these agents and officers utilize a range of strategies to justify morally ambiguous job duties, and at least a part of the moral ambiguity comes from...

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...

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...

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...