As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.
Equal protection’s current use of identity as proxy leads to a number of problems, including...
This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution...
Voter-identification laws (“voter ID laws”) have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that such laws, like poll taxes and literacy tests before them, intentionally depress turnout by lawful voters. A vast...
Across the First Amendment, the distinction between for-profit businesses and nonprofit organizations is in trouble. In recent years, courts have rejected this distinction in the context of free-speech challenges to campaign-finance restrictions and free-exercise claims to obtain legal exemptions from health-care regulations. Although there is a great deal of popular...
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated behaviors that require the weighing...
This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex- discrimination argument’s evanescence in contemporary marriage litigation, this Essay draws lessons about...
“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is...
We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the corporate-law landscape.
The Williams Act established a federal regime regulating unsolicited tender offers, but states subsequently developed a body of state anti- takeover...
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This...
Reliance plays a central role in contract law and scholarship. One party relies on the other’s promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing about what we should do about it. The focus of this Essay is on the many ways that parties choose to protect reliance. The relationship...