State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices...
Issue Archives
Recent technological developments related to the extraction and processing of data have given rise to concerns about a reduction of privacy in the workplace. For many low-income and subordinated racial minority workforces in the United States, however, on-the-job data collection and algorithmic decisionmaking systems are having a more profound yet overlooked impact: These technologies are fundamentally altering the experience of labor and undermining...
Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding,...
This Piece describes a sophisticated but underreported system of mass-defendant intellectual property litigation called the “Schedule A Defendants Scheme” (the “SAD Scheme”), which occurs most frequently in the Northern District of Illinois and principally targets online merchants based in China. The SAD Scheme capitalizes on weak spots in the Federal Rules of Civil Procedure, judicial deference to IP rightsowners, and online marketplaces’...
Gig workers constitute an ever-increasing share of the American workforce, yet they are not afforded the rights to strike and bargain collectively under the National Labor Relations Act (NLRA) due to their independent contractor status. Independent contractors who attempt to act collectively face antitrust liability, whereas employees who are covered by the NLRA enjoy an antitrust exemption for the same collective action, known as the “labor...
In June 2022 the Supreme Court decided two unrelated cases, Dobbs v. Jackson Women’s Health Organization and Ruan v. United States, each with significant implications for the criminal regulation of doctors. Dobbs removed abortion’s constitutional protection; in its wake, many states passed criminal statutes banning the procedure except in medical emergencies. The vagueness of those emergency exceptions, however, has...
Drawing from the experience of coauthoring scholarship with two activists who were sentenced to life without parole over three decades ago, this piece outlines the theory and practice of Participatory Law Scholarship (PLS). PLS is legal scholarship written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience. By foregrounding lived experience in law’s...
Textualism promises simplicity and objectivity: Focus on the text, the whole text, and nothing but the text. But the newest version of textualism is not so simple. Now that textualism is the Supreme Court’s dominant interpretive theory, most interpretive disputes implicate textualism, and its inherent complexities have surfaced. This Article is the first to document the major categories of doctrinal and theoretical choices that regularly divide...
Climate-change–induced sea-level rise threatens the very existence of Small Island Developing States. Not only will this crisis create extreme climate conditions that can physically devastate these states, it also threatens their place in the international legal system. For a country to gain or maintain access to the international legal system, it needs to be classified as a “state.” The common understanding is that a state needs to have...
In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without...