Civil forfeiture is controversial. Critics allege that law enforcement authorities use forfeiture to take property from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived tradition of largely unfettered government power...
Issue Archives
As the use of predictive technology expands, an increasing number of states have passed legislation encouraging or requiring judges to incorporate recidivism risk assessment algorithms into their bail, parole, and sentencing determinations. And while these tools promise to reduce prison overcrowding, decrease recidivism, and combat racial bias, critics have identified a number of potential constitutional issues that stem from the use of these algorithms....
Beginning in 2010, the Supreme Court severely limited states’ ability to impose juvenile life without parole sentences. In a seminal case, Miller v. Alabama, the Court banned mandatory life without parole sentences for juveniles and declared that only the “rare juvenile offender whose crime reflects irreparable corruption” should be made to spend the rest of their lives in prison. While Miller has been the subject of much...
The financial crisis exposed major fault lines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency—the Consumer Financial Protection Bureau—and changed the structure and function of these markets.
Consumer advocates cheered reforms as welfare enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now...
In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a carseat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary...
As the impacts of climate change become increasingly severe and perceptible, corporations that continue to disregard the risks created by the Earth’s shifting climate stand to suffer significant financial harm. Particular sectors, such as the oil and gas industry, are especially susceptible to the effects of climate change and are already experiencing losses in value due to extreme weather events, disrupted operations, and environmenÂtal regulations....
Faced with potentially staggering human and economic costs, governments around the world are beginning to plan and implement adaptive measures designed to stem the effects of climate change. Some of these adaptations will likely benefit certain property owners and communities at the expense of others. For example, seawalls intended to save valuable parcels of land from sea-level rise could wind up forcing seawater onto neighboring parcels that...
The constitutionally mandated decennial enumeration of the U.S. population is indispensable to the equitable distribution of political and economic resources. As we approach the 2020 Census, however, several factors converge that both undermine how we count change in commuÂnities of color and conflict with shifting demographics and power dynamics, making accurate accounting especially urgent. Among these, perhaps most notable is the threatened...
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presiÂdential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalÂists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it...
In early 2018, the federal government announced that it would ask every person in the country about their citizenship status on the 2020 Census. Controversy immediately followed. The Constitution makes the decennial census the federal government’s very first express responsibility; it drove existential questions about represenÂtation and funding in 1790 and has become no less important in the centuries since. Many observers, including several...