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...
Constitutional Law
Bostock v. Clayton County has been widely recognized as momentous for providing LGBTQ Americans with protection against workplace discrimination, helping to safeguard their economic wellbeing and dignity. But it also has the potential to impact sex discrimination jurisprudence even more broadly. This Note argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include...
In Graham v. Connor, the Supreme Court held that a Fourth Amendment reasonableness standard governed the analysis of any allegation that a law enforcement officer used excessive force during an arrest or investigatory stop. In particular, courts were to evaluate the reasonableness of the need to use force from the perspective of a hypothetical reasonable police officer at the scene. While this test seems straightforward, the Supreme Court...
In 2005, the Immigration and Customs Enforcement (ICE) agency enacted a policy sanctioning its civil ICE agents to use strategic deception, known as “ruses,” to facilitate community immigration enforcement operations. This policy provided agents a means to overcome the limitation that civil immigration arrest warrants are administrative as opposed to judicial in nature, which effectively precluded agents from entering a target’s home without...
During and after last year’s expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identifiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision....
Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar...
An unfamiliar equality principle is gaining prominence in constitutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the government’s interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implications for other guarantees in constitutional law. This Article offers two arguments....
In response to Black Lives Matter protests across the country in the summer of 2020, then-President Donald Trump sent federal agents into numerous American cities to “dominate” the protesters. These agents were largely unidentified, lacking both departmental insignia and badges displaying their personal identification information. As we have seen in the past, when law enforcement officers do not identify themselves, they can evade accountability...
Appropriations lie at the core of the administrative state and are becoming increasingly important as deep partisan divides have stymied substantive legislation. Both Congress and the President exploit appropriations to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for special...
A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s...