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In July 2022, Zaid Khan posted a TikTok video (1) that quickly went viral. (2) In the video, he explains that he 'recently learned about [the] term ... 'quiet quitting,'' [...]

INTRODUCTION City of Boston residents who wish to carry a handgun for self-defense must apply for a License to Carry Firearms (LTC) with the Boston Police Department. (1) The application [...]

INTRODUCTION When prosecutors approached a first-time drug offender who had sold a little over half a kilogram of marijuana, they offered him a deal: plead guilty to fifteen years, or [...]

Natural law 'still spooks many constitutional lawyers.' (1) Justice Scalia, for example, was once asked: 'Does natural law have a place in interpreting the Constitution?' (2) He perfunctorily responded: 'No.' [...]

FEDERAL COURTS--FEDERAL COMMON LAW--FOURTH CIRCUIT DECLINES TO APPLY FEDERAL COMMON LAW FOR MUNICIPAL CLIMATE CHANGE LAWSUIT.--Mayor of Baltimore v. BP P.L.C., 31 F.4th 178 (4th Cir. 2022). Starting in July [...]

BRAD SNYDER, DEMOCRATIC JUSTICE: FELIX FRANKFURTER, THE SUPREME COURT, AND THE MAKING OF THE LIBERAL ESTABLISHMENT. New York, N.Y.: W.W. Norton & Company. 2022. Pp. 979. $45.00. On the fourth [...]

INTRODUCTION In 2021, the Satanic Temple filed suit in federal court challenging Texas's abortion bans on grounds of religious liberty. (1) Thanks to the Supreme Court's recent free exercise decisions, [...]

INTRODUCTION Oakland had a problem. Predatory lenders were aggressively targeting its residents, extracting exorbitant interest fees and imposing surprise balloon payments. (1) Throughout the city, home values cratered and poverty [...]

INTRODUCTION: ABOLITION'S SECOND PREMISE The movement for police abolition seeks to eliminate, or massively downsize, American policing. Mariame Kaba's Yes, We Mean Literally Abolish the Police (1) marks the movement's [...]

Personal precedent is a judge's presumptive adherence to her own previously expressed views of the law. This Essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent--as vividly illustrated by Dobbs v. Jackson Women's Health Organization. Further, the Justices' use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the Justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block., CONTENTS INTRODUCTION I. THEORY A. Defining the Concept B. The Pull of Personal Precedent C. Distinguishing Personal from Institutional D. Reconciling the Personal and the Institutional II. Practice A. Rejecting [...]

Subjectivity, like mortality, has seemed not only attainable but inevitable. It is objectivity which is presumed to be the problematic goal of our theories and our attempts at doctrinal interpretation. [...]

Two millennia ago, on a crisp winter evening, thousands flocked to Chang'an's luminous streets, jostling between carriages and merchant stands to glimpse the annual lantern festival. (1) Han dynasty China [...]

When a corporation engages in misconduct that is widespread or pervasive, courts, regulators, or prosecutors often insist that the firm obtain assistance from an independent third party--a monitor--to oversee the firm's remediation effort. The largest firms in the world--from Deutsche Bank, to Volkswagen, to Carnival Cruise Lines--have found themselves having to retain a monitor for corporate misconduct, despite attempts to avoid a monitorship entirely. Traditionally, monitors, or their special master forebearers, were utilized by courts to assist in overseeing compliance with court orders, and their work was both accessible and transparent. As corporate monitorships have evolved over the past fifteen to twenty years, however, the transparency norm has receded, even when the success or failure of the underlying remediation effort invokes issues of public concern. This lack of transparency would, potentially, be of little concern if the courts, regulators, and prosecutors that are party to monitorships were fully able and willing to ensure the monitorship achieved its goals. The reality, however, is that these governmental actors have demonstrated their own susceptibility to concerns related to cronyism, capture, and, perhaps, competence. Because the governmental actors involved in monitorships have proven to, understandably, lack perfection in their supervision capabilities, the lack of transparency and oversight over monitors and monitorships has prompted public critique, academic debate, and litigation. And yet, it has proven next to impossible to identify a comprehensive manner in which to regulate monitorships. This Article suggests a novel path forward through a mix of federal interventions. The Article argues that at the conclusion of all monitorships, the public should receive an accounting that details whether the firm has or has not engaged in a successful remediation effort. This Article suggests two paths for the public to receive this information: (i) a securities disclosure and (ii) the adoption of a new policy regarding the use of monitors via the Office of Management and Budget. The result of these interventions will be greatly increased public access to information about the conclusion of a firm' monitorship. All monitors, regardless of type, gather, assess, analyze, and disseminate information, yet this information is often kept outside of the public sphere. This Article presents a piecemeal set of interventions that would help generate the move toward greater public reporting of monitorship outcomes., CONTENTS INTRODUCTION I. The Role of Monitors Today A. Monitorships Generally B. Monitorship Types II. The Problems of Disclosure and Oversight A. Limited Information Disclosure B. Elusive Oversight III. Requiring [...]

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Lani Guinier. Sherrilyn Ifill * I first met Lani Guinier in the summer of 1988. She was [...]

The stylized picture of content moderation that forms the basis for most regulatory and academic discussion of online speech governance is misleading and incomplete. That picture depicts content moderation as a rough online analog of offline judicial adjudication of speech rights, with legislative-style substantive rules being applied over and over again to individual pieces of content by a hierarchical bureaucracy of moderators. This understanding leads regulators and scholars to assume that the best way to make platforms accountable for their decisions about online speech is to ensure platforms provide users the kind of ex post individual review provided by courts in First Amendment cases and to guarantee users with ever more due process rights. But because the scale and speed of online speech means content moderation cannot be understood as simply the aggregation of many (many!) individual adjudications, what this approach produces is accountability theater rather than actual accountability. This Article argues that content moderation should instead be understood as a project of mass speech administration and that looking past a post-by-post evaluation of platform decisionmaking reveals a complex and dynamic system that needs a more proactive and continuous form of governance than the vehicle of individual error correction allows. Lawmakers need to embrace a second wave of regulatory thinking about content moderation institutional design that eschews comforting but illusory First Amendment-style analogies and instead adopts a systems thinking approach. This approach focuses on the need to look to structural and procedural mechanisms that target the key ex ante and systemic decisionmaking that occurs upstream of any individual case., CONTENTS INTRODUCTION I. THE STANDARD PICTURE OF CONTENT MODERATION II. THE STANDARD PICTURE'S BLIND SPOTS A. Content Moderation Bureaucracies Are a 'They' Not an 'It' 1. Non-Content-Based Content Moderation. 2. [...]

The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough. --Justice Oliver Wendell Holmes (Buck v. Bell, 274 U.S. [...]

Facebook founder Mark Zuckerberg has created a private 'Supreme Court,' or so he says. Since 2021, his company's Oversight Board has issued verdicts on a smattering of Facebook's decisions about online speech. Cynics frame the Board as a Potemkin village, but defenders invoke analogies to separation of powers to claim that this new body empowers the public and restrains the company. Some are even calling for a single 'platform supreme court' to rule over the entire industry. Juridical discourse for platforms is powerful, but it can also be deceptive. This Response explores how juridical discourse has legitimized and empowered Facebook' Board, building on Professor Evelyn Douek's critique of how a 'stylized' picture likens content moderation to judicial review. While Douek focuses on how scholars and lawmakers preach this misleading picture, I expose how platforms drive juridical discourse for their own gain. This deeper understanding of platform complicity is key. Without it, we'll struggle to comprehend or contest the illusory picture of content moderation favored by platforms. With it, we might better resist platforms' attempts to thwart regulation that would better serve the public's interests., INTRODUCTION Love it or hate it, Facebook's fledgling Oversight Board is poised to usher in a new era of content moderation for online platforms. (1) The Board, launched two years [...]

As access to abortion is a rapidly developing question in the United States's legal landscape, courts across the world are revisiting criminalization and constitutional protections or constraints on this specific [...]

Can limits on judicial review exist within a 'regime of law and ... constitutional government?' (1) Just ask noncitizens, millions of whom (2) are deportable at the stroke of a [...]

Ten years ago, the Supreme Court held in Martinez v. Ryan (1) that ineffective assistance of postconviction counsel, in an initial-review proceeding, may establish cause for a habeas petitioner's procedural [...]

Beware the Jabberwock, my son! The jaws that bite, the claws that catch! Beware the Jubjub bird, and shun The frumious Bandersnatch! --Lewis Carroll, Jabberwocky (1) Begin with what is [...]

Yassir Fazaga and Zayn al-Abidin Muhammad Husayn are strikingly different people. Fazaga is a well-respected American imam whose mosque in southern California became the target for a muscle-bound FBI informant [...]

The editors of the Harvard Law Review respectfully dedicate this issue to Justice Stephen G. Breyer. This past summer, Stephen G. Breyer retired from active service after nearly three decades [...]

How Constitutional Rights Matter. By Adam Chilton and Mila Versteeg. New York, N.Y.: Oxford University Press. 2020. Pp. viii, 388. $99.00. Introduction Nearly a generation ago, Justice Scalia and Justice [...]

Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse. But the basic question of how abolitionists would address 'the dangerous few' often receives superficial treatment; the problem constitutes a 'spectral force haunting abolitionist thought ... as soon as abolitionist discourses navigate towards the programmatic and enter the public arena.' (1) This Essay offers two main contributions: it (i) maps the diverse ways in which prison abolitionists most frequently respond to the challenge of 'the dangerous few,' highlighting strengths and infirmities of each stance, and (2) proposes alternative, hopefully more productive, responses that interrogate and probe the implicit premises (empirical, ideological, or moral) embedded in and animating questions concerning 'the dangerous few.', Introduction In the 1970s, with prison populations a fraction of their current size across much of the planet, prison abolition was more than a possibility--to many, it seemed inevitable. (2) [...]

'You don't want to be found dead after a shoot-out with unused ammunition.' (1) That was the refrain of one Federal Reserve (Fed) official in the wake of the Great [...]

Around the country, state courts are being flooded with the claims of massive repeat filers. These large corporate plaintiffs leverage economies of scale to bring tremendous quantities of low-value claims against largely unrepresented individual defendants. Using recently developed litigation-analytics tools, this Article presents the first nationwide study of these 'assembly-line plaintiffs,' examining the top civil filers in a range of state courts across the country going back to 2004. It documents the pervasive nature of this litigation, finding that in many court systems just the top ten private filers account for between one fifth and one third of all civil litigation. This pattern raises serious concerns. Drawing on existing empirical literature and a sample of 1000 recent case dockets, the Article describes how these cases turn state courts into near-automatic claims processors for large corporations, transferring assets from mostly absent defendants without significant scrutiny of the underlying claims. These defendants, moreover, are often particularly vulnerable low-income consumers or members of other marginalized groups. And although many concerns raised by this litigation overlap with those related to unrepresented litigants more broadly, the structural features of assembly-line litigation--its one-sidedness, high volume, and low claim value--present distinctive challenges. The Article concludes by considering a few specific potential reforms designed to meet those challenges: assessing a surcharge on frequent filers as a form of congestion pricing; enabling common defenses to be asserted as affirmative causes of action to facilitate aggregation; and moving courts away from one-case-at-a-time adjudication toward a more investigative, administrative-agency-like model., INTRODUCTION. I. ASSEMBLY-LINE LITIGATION A. The Emergence of Majority-Pro Se Courts B. The Components of Assembly-Line Litigation 1. Sophisticated Repeat Plaintiffs with Many Low-Value Claims. 2. Absent and Unrepresented Defendants. [...]

Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward--and have reached different, contradictory conclusions. This Article reports the results of a large-scale empirical study of the impact of a transformative Supreme Court decision in federal and state courts. It analyzes all 857 federal and state judgments applying Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, this Article illuminates both the present and future of Fourth Amendment law. In doing so, it identifies the factors that drive modern Fourth Amendment search decisions--and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow Carpenter from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the 'good faith exception' to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, this Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, this Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication., INTRODUCTION I. THE LAW OF FOURTH AMENDMENT SEARCHES. A. Fourth Amendment Law and Digital Data. B. A Fourth Amendment Sea Change. C. The Carpenter Factors 1. Revealing Nature 2. Amount [...]

The months leading up to the 2021 United Nations Climate Change Conference (COP26) in Glasgow put the climate crisis in stark relief. Heatwaves blanketed the American Northwest, shattering temperature records [...]

The defining image of the twenty-sixth Conference of the Parties to the United Nations Framework Convention on Climate Change (COP26) featured Simon Kofe, Tuvalu's foreign minister, delivering his address while [...]

For a contract to be valid and enforceable, parties must voluntarily assent to its terms. (1) This principle creates tension in employment contracts, which are prone to coercion given employers' [...]

Since the inception of zoning in the early twentieth century, municipal governments have dominated land use decisionmaking. Cities and towns decide where, what, and how to build, almost entirely without [...]

The climate is changing and so must our energy sources. But how do we get there? Who decides when and where to build new power stations across the country? And [...]

On May 15, 2013, Ken Ward and Jay O'Hara piloted a lobster boat into the path of a coal freighter, dropped anchor, and for one day delayed the delivery of [...]

Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person's identity. Increasingly, however, these rights are working at odds with one another and can point in different directions with regard to who controls a person's name, likeness, and broader indicia of identity. This creates what I call an 'identity thicket' of overlapping and conflicting rights over a person's identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person's identity, if any, flows from the transfer of marks that incorporate indicia of a person's identity, and whether such transfers can empower a successor company to bar a person from using their own identity, and, if so, when. Part of the challenge for mediating these disputes is that both right of publicity and trademark laws are commonly thought of as concerned solely with market-based interests. But this is not the case. As I have documented elsewhere, the right of publicity has long been directed at protecting both the economic and the noneconomic interests of identity-holders. And, as I demonstrate here, it turns out that the same is true for trademark and unfair competition laws, which have long protected a person's autonomy and dignity interests as well as their market-based ones. After documenting and developing this overlooked aspect of trademark law, I suggest a number of broader insights of this more robust account of trademark law both for addressing the identity thicket and for trademark law more generally. First, I suggest that recognizing a personality-based facet of trademark law suggests a basis to limit the alienation of personal marks in some contexts. Second, this understanding shores up trademark's negative spaces, especially when truthful information is at issue. Third, recognizing trademark's personality-based interests provides a partial explanation (and limiting principle) for some of its expansionist impulses. Finally, I contend that recognizing this broader vision of trademark law provides significant guidance as to how to navigate the identity thicket. I employ trademark preemption analysis to mediate disputes between trademark and right of publicity laws. Trademark preemption provides an avenue out of the thicket, but only if trademark law's robust theory of personality is recognized. A failure to do so risks leaving us with one of two bad options: a right of publicity that acts as a 'mutant' trademark law, swallowing up and obstructing legitimate rights to use trademarks, or, alternatively, with a shallow husk of trademark law (rooted solely in commercial interests) that swallows up publicity claims at the expense of personal autonomy and dignity. Trademark law already provides us with the tools to avoid both of these unsavory paths--if only we reclaim its lost personality., CONTENTS Introduction I. The Identity Thicket II. Trademark's Conventional Objectives III. Reclaiming Trademark's Personality A. Unfair Competition and Trademark's Early Theory of Personality 1. The 'Natural Right' to One's Own [...]

The truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if the policies diverge in design and designer? Does such a relationship condemn the later policy for all times and purposes, or can a later decisionmaker escape the past? It is an old problem, but its resolution hardly seems impending. Just recently, Supreme Court cases have confronted this fact pattern across subject matters as diverse as entry restrictions, nonunanimous juries, and redistricting, among others. Majority opinions seem unsure whether or why 'discriminatory predecessors' matter, and individual Justices who agree that they do squabble over methodology. One could answer these questions by banishing them. Thus, some would simply treat any nonidentical policy predecessor as minimally relevant, and only relevant insofar as it suggests present-day bad intent. Anything else, they suggest, risks an unmoored original sin jurisprudence, with courts claiming to know guilt when they see it. Simple is not always better, however, especially if it risks eliding information material to a policy's validity. But again: how do we divine materiality? Better approaches are possible. While our law broadly appreciates that continuity matters to legal meaning and responsibility, constitutional law has undertheorized it. Deploying continuity here helps conceptualize, and craft guideposts for, 'discriminatory taint': an objectively ascertainable relationship between an earlier policy and a later, similar policy. Thus defined, taint can impugn some policies that might otherwise have passed constitutional muster. Yet it also facilitates realistic approaches--judicial and nonjudicial--to distinguishing genuine purging of taint from its laundering. And it supplements debates on the nature of wrongful discrimination by underscoring how continuity can help identify persistent constitutional problems even absent subjective bad intent., CONTENTS Introduction I. An Unappreciated Problem A. Roots B. The Problem's Persistence C. The Problem in Practice 1. Temporally Minimalist 2. Temporally Maximalist 3. The Muddle II. The Missing Piece: [...]

In 2021, Texas enacted a new antiabortion law. (1) The law, SB 8, garnered attention for its dramatic curtailment of abortion rights. (2) But, more esoterically, it drew attention for [...]

Law and Macroeconomics: Legal Remedies to Recessions. By Yair Listokin. Cambridge, M.A.: Harvard University Press. 2019. Pp. 280. $48.00. Shutdown: How Covid Shook the World's Economy. By Adam Tooze. New [...]

It is--and has long been--well known that the Executive's power is expanding. To date, there are two dominant analyses of the judiciary's role in that expansion: the judiciary is intrinsically too weak to check the Executive or the judiciary has actively facilitated the Executive's unprecedented enlargement of power. This Article challenges those views. It argues that the judiciary is very much engaged in devising techniques to check executive power. Through developments that are managerial and doctrinal, substantive and procedural, high-profile and seemingly mundane, federal courts have subjected an important set of executive actions that this Article terms 'enforcement lawmaking'--the exercise of enforcement discretion in a manner that goes beyond simple policy and that shares attributes of law--to judicial oversight. Together, these developments reveal a potential shift in the structure of separation of powers. Courts have leveraged their inherent case-management powers--the procedures that shepherd lawsuits through the process of judicial review--to force transparency on the Executive and to hold it to account. This Article maps the effects of these 'managerial checks,' which render the simple existence of judicial review powerful, particularly when viewed together with the extension of justiciability and remediation doctrines. Courts have authorized judicial review earlier and to greater effect by redefining when executive action is ripe for judicial review. They have created new avenues for multiparty public litigation through developments in standing doctrine. And they have increasingly deployed a muscular remedy, the nationwide injunction, to counterbalance increasingly muscular forms of executive action. This Article argues that these developments along the entire life cycle of suits challenging enforcement lawmaking--from standing, to ripeness, to judicial recordkeeping and management, to remedies--should be viewed together and in separation-of-powers terms. The nuts and bolts of litigating these suits has led to an emerging expansion of judicial power. Courts have flexibly and responsively assimilated new assertions of executive power in ways that have restructured federal court doctrine and practice and emboldened federal courts. After documenting these changes at all levels of the federal judicial system, this Article offers a prescription for the Supreme Court. The Supreme Court should avoid prematurely dictating the boundaries of this expanded judicial power from above and instead allow district courts and courts of appeals considerable freedom to fashion the judiciary's checking powers from below. Such an approach will avoid premature Supreme Court interventions that have the effect of subjugating judicial power to executive power., CONTENTS INTRODUCTION I. COURTS AND EXECUTIVE POWER A. From Executive Power to Enforcement Lawmaking 1. Enforcement Lawmaking 2. Enforcement Lawmaking: Examples (a) Deferred Action for Childhood Arrivals (b) Transgender Bathroom [...]

In the summer of 2019, California enacted Senate Bill 27 (S.B. 27), or the Presidential Tax Transparency and Accountability Act. (2) The law required candidates for President and Governor wishing [...]

ADMINISTRATIVE LAW--APPELLATE REVIEW OF AGENCY ACTION--D.C. CIRCUIT HOLDS FERC MUST EXPLAIN REFUSAL TO ASSESS CLIMATE IMPACTS.--Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. [...]

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn't offer, and shouldn't be blamed for failing to offer, is a step-by-step procedure for finding them. Distinguishing standards from decision procedures explains originalism's tolerance for uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory's normative defenders; and gives us a better picture of originalism's use in practice. It would be nice if the correct constitutional theory also gave us easy answers in contested cases. But you can't have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same., I. The Practical Objection A. History B. Application II. Standards and Procedures A. Standards and Procedures in Ethics B. Standards and Procedures in Law C. Answering the Objection 1. History [...]

Constitutional Law--Fourth Amendment--Fourth Circuit Holds Warrantless Access of Aerial Surveillance Data Unconstitutional.--Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021). The Fourth Amendment safeguards [...]

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency's ability to execute its statutory mandate. This strategy, which we call 'structural deregulation,' is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed 'presidential administration.' Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; reallocating agency resources; occupying an agency with busywork; and damaging an agency's reputation. Structural deregulation differs from traditional 'substantive' deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts. We argue that structural deregulation is in tension with constitutional, administrative, and democratic norms. Nevertheless, public law is remarkably ill-equipped to address it. Constitutional and administrative law both have blind spots when it comes to presidential management of the bureaucracy, especially when the President's mission is incapacitation. Specific statutes meant to protect the civil service or inoculate agency budgets from presidential control do not help much either--they are vulnerable to workarounds. These blind spots and workarounds have allowed structural deregulation to flourish as a method of presidential control, with serious consequences for the future of the administrative state. We therefore propose legislative and regulatory reforms that could help to control the risks of structural deregulation., CONTENTS Introduction I. 50 Ways to Kill an Agency A. Staffing 1. Line-Level Staffing 2. Officers (a) Acting Officials (b) Commission Vacancies 3. Structural Changes to Staffing Mechanisms B. Other [...]

In recent years, legal scholars have advanced powerful critiques of mass incarceration. Academics have indicted America's prison system for entrenching racism and exacerbating economic inequality. Scholars have said much less about the law that governs penal institutions. Yet prisons are filled with law, and prison doctrine is in a state of disarray. This Article centers prison law in debates about the failures of American criminal justice. Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law's emergence as a discrete field--a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure. We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners' rights, and the purpose of penal institutions. To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation. We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought. Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons. This Article explains how outdated tropes have narrowed prisoners' rights and promoted the country's dependence on penal institutions. It links prison myths to the field's central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment. And it argues that courts must abandon that doctrine--and attend to the realities of prison--to develop a more coherent theory of prisoners' constitutional rights., CONTENTS Introduction I. The Constitution Imprisoned A. Expansion B. Retrenchment II. The Shifting Premises of Prison Law A. Violence B. Literacy C. Privacy D. Rehabilitation III. Beyond the Mythic Prison [...]

Until well into the twentieth century, American law recognized blasphemy as proscribable speech. The blackletter rule was clear. Constitutional liberty entailed a right to articulate views on religion, but not [...]

[W]e must not overlook the actual fact that dominion over things is also imperium over our fellow human beings. --Professor Morris R. Cohen, Property and Sovereignty (1) In October 1978, [...]

CONTENTS INTRODUCTION I. ELEMENTS OF REGIME CHANGE A. Switching Sides 1. Enlisting the Court 2. The Interests of the United States B. A New Order 1. The Legal Regime 2. [...]

When a federal officer violates somebody's constitutional rights, what remedies are appropriate for a court to grant? In the landmark case Bivens v. Six Unknown Named Agents of Federal Bureau [...]

Democracy can take root anywhere, from community gardens to the most toxic workplace environments. It's planted whenever people treat one another as political equals, allowing everyone in the community, or [...]