No. 3

Courts regularly consider a parent’s physical disability in child cus­tody disputes. At times, they go as far as to invoke physical disability as a minus factor that weighs against granting custody to that parent. This practice often reflects family court judges’ attitudinal biases, which are premised on ill-conceived notions of how physical disability actually af­fects one’s ability to parent. Because child custody adjudication af­fords...

There is a war raging over the admissibility of the prior bad acts of criminal defendants in federal trials. While many circuits treat Federal Rule of Evidence 404(b) as a rule of “inclusion” and liberally admit such prior bad-acts evidence with predictably explosive effects on criminal ju­ries, a few circuits are developing rigorous standards de­signed to fore­close prosecutorial use of such bad-acts evidence. This Article chronicles the...

ASYMMETRIC CONSTITUTIONAL HARDBALL

Joseph Fishkin* & David E. Pozen**

Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of consti­tutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican office­holders have been more likely...

Affordable housing residency preferences give residents of a specific geographic “preference area” prioritized access to affordable housing units within that geographic area. Historically, majority-white munici­palities have sometimes used affordable housing residency preferences to systematically exclude racial minorities who reside in sur­rounding com­munities. Courts have invalidated such residency pref­erences, usually on the grounds...

Batson v. Kentucky is widely regarded as a failure. In the thirty-plus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the dis­criminatory use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson’s appellate...

  High drug prices are in the news. In some cases, such as AIDS-treating Daraprim and the life-saving EpiPen, the price increases dramati­cally. In other cases, which have received less attention, the price stays high longer than it should. Either way, anticompetitive behavior often lurks behind inflated prices. By delaying price-reducing generic competition, this behavior […]