The Supreme Court and the History of Reconstruction—And Vice-Versa

  By: Eric Foner

 

Beginning in the 1930s, Reconstruction historiography underwent a dramatic change. Early-twentieth-century historians of Reconstruction viewed aggressive federal intervention to protect the civil rights of freed slaves as a mistake, and they celebrated the Compromise of 1877 and ...READ MORE

Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage

  By: Aviam Soifer

 

The Peonage Abolition Act of 1867 abolished voluntary as well as involuntary servitude. Congress did this in sweeping terms, based on the Enforcement Clause of the Thirteenth Amendment, but Congress explicitly extended protections beyond those proclaimed in ...READ MORE

Gender Discrimination and the Thirteenth Amendment

  By: Alexander Tsesis

 

Although the Thirteenth Amendment was ratified more than a century and a half ago, courts have yet to delve into its relevance to gender discrimination. This oversight is unfortunate given the extent to which jurisprudence about another ...READ MORE

 

James Ashley’s Thirteenth Amendment

  By: Rebecca E. Zietlow

 

On January 31, 1865, the United States House of Representatives voted to approve the Thirteenth Amendment. Chairing the final debate over the Amendment was Representative James Ashley, a lifelong opponent of slavery from Northwest Ohio who ...READ MORE

Thirteenth Amendment Optimism

  By: Jamal Greene

 

Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the Amendment’s drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has ...READ MORE

McCulloch and the Thirteenth Amendment

  By: Jennifer Mason McAward

 

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch ...READ MORE

 

The Thirteenth Amendment and the Regulation of Custom

  By: Darrell A.H. Miller

 

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the tech- nical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power ...READ MORE

Four Reservations on Civil Rights Reasoning By Analogy: The Case of Latinos and Other Nonblack Groups

  By: Richard Delgado

 

The protection of civil rights in the United States encompasses remedies for at least five separate groups. Native Americans have suffered extermination, removal, denial of sovereignty, and destruction of culture; Latinos, conquest and the indignities of a ...READ MORE

Originalism, Abortion, and the Thirteenth Amendment

  By: Andrew Koppelman

 

Does an originalist reading of the Thirteenth Amendment support a right to abortion? Not long ago a negative answer seemed obvious enough to make the question silly. Since then, however, originalism has become more sophisticated. It is ...READ MORE

 

Pluralism and Perfectionism in Private Law

By: Hanoch Dagan

Many private law scholars strive to divine broad, unified normative theories of property, contracts, torts, and restitution (or, at times, even of private law as a whole). These monist accounts suggest that one regulative principle guides the various ...READ MORE

“Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight”

  By: Peter L. Strauss

 

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of “allocation.” Because the term “deference” muddles rather than clarifies the structure’s operation, this Essay ...READ MORE

Stock Unloading and Banker Incentives

 

By: Robert J. Jackson, Jr.

 

Congress has directed federal regulators to oversee banker pay. For the first time, these regulators are now scrutinizing the incentives of risk-takers beyond the bank’s top executives. Like most public company managers, these bankers are increasingly ...READ MORE

 

On Avoiding Avoidance, Agenda Control, and Related Matters

By: Henry Paul Monaghan

 

Legal scholars have long posited that, heuristically at least, two basic adjudicatory models—the dispute resolution model and the law declaration model—compete for the Court’s affection along a wide spectrum of issues. The former focuses upon judicial resolution ...READ MORE

Recognizing Race

By: Justin Driver

 

Judges habitually decide whether to identify individuals racially within the context of judicial opinions. Yet this practice, which this Essay labels “recognizing race,” has thus far gone virtually unexplored by legal scholars. The dearth of scholarly attention to ...READ MORE

Transaction Consistency and the New Finance in Bankruptcy

By: David A. Skeel, Jr. & Thomas H. Jackson

 

Neither scholars nor the derivatives industry have fully explored the question of how the treatment of derivatives and repos in bankruptcy would change if their exemption from a number of bankruptcy’s core ...READ MORE

 

Managing Moral Risk: The Case of Contract

Rethinking the Laws of Good Faith Purchase

 

Fair Trespass