Wolff v. McDonnell is the seminal case outlining the due process rights due to incarcerated people in disciplinary hearings. The Court held that incarcerated people are entitled to the minimum procedures appropriate under the circumstances and required by the Due Process Clause but stopped short of adopting the full panoply of procedural safeguards. Namely, the Court found that incarcerated people have no due process right to confront...
Constitutional Law
This Essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive...
A classic constitutional parable teaches that our federal system of government allows states to function as “laboratories of democracy.” This tale has been passed down from generation to generation, often to justify constitutional protections for state autonomy from the federal government. But scholars have failed to explain how state governments manage to overcome numerous impediments to experimentation, including resource scarcity, free rider...
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....
Recent explosive growth in environmental and climate-related marketing claims by business firms has raised concerns about the truthfulness of these claims. Critics argue (or at least question whether) such claims constitute greenwashing, which refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact of a product, a service, or the entity itself. The extent to which...
What do the Justices think they’re doing? They seem to act like appeals judges, who address questions of law as needed to reach a decision—and yet also like curators, who single out only certain questions as worthy of the Supreme Court’s attention. Most of the time, the Court’s “appellate mind” and its “curator mind” are aligned because the Justices choose to hear cases where a curated question of interest is also central to the...
Black communities have been surveilled by governmental institutions and law enforcement agencies throughout the history of the United States. Most recently, law enforcement has turned to monitoring social media, devoting an increasing number of resources and time to surveilling various social media platforms. Yet this rapid increase in law enforcement monitoring of social media has not been accompanied by a corresponding development in legal protections....
In 2018, the Supreme Court decided in Carpenter v. United States that the government requires a search warrant to access seven days or more of certain location data that comes from mobile devices. In 2020, however, news broke that different government agencies had purchased location data from data brokers and used them for law enforcement purposes. Because the Fourth Amendment does not regulate open market transactions, it is now an open...
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...
Bostock v. Clayton County has been widely recognized as momentous for providing LGBTQ Americans with protection against workplace discrimination, helping to safeguard their economic wellbeing and dignity. But it also has the potential to impact sex discrimination jurisprudence even more broadly. This Note argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include...