Issue Archives

America’s mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of “nonincarceration mass incarceration”: the widespread use of supervision conditions that separate people on parole, probation,...

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...

SHARING THE CLIMATE

Rashmi Dyal-Chand*

Property law responds poorly to the lived reality of the climate crisis. In particular, it fails to address the uncontrollable negative externalities endemic to this crisis. Today, we need and share resources from which it would be ineffective and harmful to exclude our neighbors. Yet exclusion remains the cornerstone of much of American property law. In turn, the principle of autonomy—broadly defined to signify privacy, self-sufficiency, and...

The federal criminal code provides enhanced penalties for offenses that qualify as crimes of violence. This Note concerns a basic question: What qualifies as a crime of violence? The code offers two seemingly clear definitions, classifying as violent any crime that either (1) includes the use of physical force against the person or property of another as an element of the crime or (2) by its nature involves a substantial risk of the use of physical...

Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet despite the significance of this practice, its origins are...

Agriculture systems are extremely susceptible to the consequences of climate change. Extreme weather events, changing temperature patterns, and invasive pests and weeds threaten our nation’s crop yields and food security. U.S. agriculture is also a leading contributor to climate change, as industrial farming and land management practices emit around a third of nationwide greenhouse gases. Certain climate-friendly agriculture practices have the...

ASSESSING AFFIRMATIVE ACTION’S DIVERSITY RATIONALE

Adam Chilton, Justin Driver, Jonathan S. Masur & Kyle Rozema*

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...

Issues relating to disability are undertheorized in the Supreme Court’s Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendment’s vast scope of police discretion...

COUNTERING GERRYMANDERED COURTS

Jed Handelsman Shugerman*

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers...

Although antitrust scrutiny of “big tech” companies has increased drastically over the past decade, much of the national debate has concerned issues of monopolization and the Sherman Act—the dominant federal antitrust statute. But with rapid developments in artificial intelligence and machine learning, algorithmic price fixing has become an increasingly pressing threat that the Sherman Act is ill-equipped to tackle. Under the current framework,...