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...
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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...
The most elite and scarce of all U.S. legal credentials is serving as a Justice on the U.S. Supreme Court. A close second is clerking for a Justice. A Court clerkship is a prize as well as a ticket to future success. Rich accounts of the experience fill bookshelves and journal pages. Yet the public lacks a clear story about who wins this clerkship lottery. Original analysis of forty years of clerkships tells that story. New datasets detail clerks’...
American racial justice opponents regularly wield a desire for peace, stability, and harmony as a weapon to hinder movement toward racial equality. This Essay examines the weaponization of peace historically and in legal cases about property, education, protest, and public utilities. Such peace claims were often made in bad faith and with little or no evidence, and the discord they claimed to address was actually the result of hostility to racial...
Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their...
Many states turn in sizable part to local property taxes to finance public education. Political and academic discourse on the extent to which these taxes should serve in this role largely centers on second-order issues, such as the vices and virtues of local control, the availability of mechanisms to redistribute property tax revenues across school districts, and the overall stability of those revenues. This Essay contends that such discourse would...
This Essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of “education theft” through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements. The Essay begins by revisiting the debate...