Dating back to the Founding, theorists have touted the checking value of the press in exposing government corruption and abuse. Pretextual arrests targeting professional and citizen journalists raise significant First Amendment concerns. Even a brief, “catch-and-release” detainment may altogether prevent a newsgatherer from capturing images or disseminating timely news updates from an event. In this sense, arrests of newsgatherers pose similar...
Constitutional Law
From mandating separate and unequal gravesites, to condoning mutilation after lynchings, to engaging in cover-ups after wrongful police shootings, governmental actors have often degraded dignity in death. This Article offers an account of the constitutional law of the dead and takes aim at a legal rule that purports to categorically exclude the dead from constitutional protection. The rule rests on two faulty premises. The first...
The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from...
Temporary leaders in federal agencies—commonly known as “actings”—are a fixture of the modern administrative state. These acting officials have recently come under fire, particularly after President Trump ousted Jeff Sessions and installed Matthew Whitaker as acting Attorney General in November 2018. Yet despite their ubiquity and the fervent criticism we know almost nothing about them.
This Article examines open questions about...
Courts, scholars, and advocacy organizations across the political spectrum are calling on the Supreme Court to limit qualified immunity or do away with the defense altogether. They argue—and offer compelling evidence to show—the doctrine bears little resemblance to defenses available when Section 1983 became law, undermines government accountability, and is both unnecessary and ill-suited to shield government defendants from the burdens and...
Introduction The Electoral College has resulted in the loser of the national popular vote winning the presidency five times in our history, including twice in the past two decades. Over the course of more than two centuries, it has become one of the two most popular subjects for constitutional amendment proposals. But because of the […]
In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”
The...
The topic of political branch motivation has long bedeviled courts and scholars, especially when facially neutral government action is under constitutional challenge. The definitive decision in this realm, Washington v. Davis, holds that a finding of discriminatory intent is necessary to prompt more exacting scrutiny of facially neutral legislation or administrative action. One major problem with this rule is that it risks licensing malintent by...
Many legal scholars have explored how courts can apply legal doctrines, such as procedural due process and equal protection, directly to government actors when those actors deploy artificial intelligence (AI) systems. But very little attention has been given to how courts should hold private vendors of these technologies accountable when the government uses their AI tools in ways that violate the law. This is a concerning gap, given that governments...
The First Amendment is currently being pulled in opposite directions by a group of Hasidic schools in New York. Driven by deeply held religious beliefs, the leaders of these schools refuse to teach virtually any of the secular studies required for children by New York state law. Proponents of these schools point to the Free Exercise Clause and the “hybrid rights” of religion and parental control. However the state also has an interest in ensuring...