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This Article interrogates the conventional understanding of United States v. Klein, a Reconstruction Era decision that concerned Congress’s effort to remove appellate jurisdiction from the Supreme Court in a lawsuit seeking compensation for abandoned property confiscated by the United States during the Civil War. Scholars often celebrate the decision for protecting judicial independence; so, too, they applaud the decision for shielding property rights against arbitrary legislative action and for preserving executive clemency from legislative encroachment. Absent from all contemporary accounts of Klein is its racialized context: The decision allowed an unelected judiciary to disable Congress from blocking the president’s promiscuous use of the pardon power to obstruct policies aimed at racial equality. These policies included land distribution to emancipated slaves—the proverbial “forty acres and a mule.” Klein, we show, was one of a number of Supreme Court decisions that helped to restore a white supremacist, aristocratic power base in the South. In particular, the decision is a coda to a tragic story in which property, central to the political reconstruction of the South on a multiracial basis, was returned to former enslavers and those who did commerce with them. This Article makes three contributions. First, it augments the traditional narrative about Klein by highlighting the land dreams of Black freedom seekers and the Union’s broken commitments to Blacks about land acquisition and the promise of full citizenship, rather than exclusively focusing on the compensation claims of Confederate rebels and their allies. Second, it explores the erasure of racial politics from scholarly discussion of Klein, and the ways in which a purportedly neutral jurisdictional rule achieved extreme racialized effects. We argue that the Court’s assertion of interpretive supremacy was partner to partisan efforts to defeat Reconstruction that worked to maintain Black people in a subordinate class subject to legalized violence and economic exploitation. In particular, we bring the decision into dialogue with Reconstruction Era constitutional decisions, and examine how the Court’s reasoning and its implicit valorization of a “Lost Cause” ideology set the foundation for a hollowed-out construction of the Fourteenth Amendment that equates Black citizenship with emancipation only, without regard to the material conditions that make freedom and equality possible. Finally, we raise questions whether acknowledging Klein’s racialized context might motivate reassessing as well as reorienting the notion of jurisdictional neutrality and jurisdictional doctrines involving federalism, separation of powers, and federal judicial power.

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers chooses litigation strategies, crafts arguments, and presents their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail. This Article focuses on a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.” For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network. Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

This Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Given prosecutors’ positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past—and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Specifically, I estimate how the sentencing penalty for prior convictions differs by defendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the likelihood of a prison sentence for an additional prior conviction was 25% higher for white than Black defendants with similar arrests and criminal records. While Black and white defendants without criminal records were incarcerated at similar rates, white defendants with records were incarcerated at significantly higher rates. And the longer the record, the greater the divergence. To understand this finding, I link an original survey of 203 prosecutors to their real-world cases. This survey-to-case linkage helps reveal how prosecutors’ beliefs about past racial bias influence their decision-making. I find that the subset of prosecutors who attribute racial disparities in the criminal legal system to racial bias have lower prison rates for Black defendants with criminal records than facially similar white defendants, thereby offsetting past disparities. In concrete terms, racial disparities in North Carolina prison rates in 2019 would have increased by 20% had the state mandated equal treatment of defendants with similar case files. These findings should lead reformers to exercise caution when considering calls to limit or eliminate prosecutorial discretion. Blinding prosecutors to defendant race—a policy that jurisdictions are increasingly implementing—may inadvertently increase disparities by neutralizing the offsetting effects of some prosecutors. While race-blind charging ensures that prosecutors do not introduce new bias, it also ensures that any past bias is passed through to current (and future) decisions.

This Article aims to clarify the content of the void-for-vagueness doctrine and defend its historical pedigree by drawing attention to a fundamental aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That simple distinction has considerable explanatory power. It reveals that the doctrine emerged in the late nineteenth century in response to two simultaneous changes in the legal landscape—first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment, and second, a significant shift in how state courts construed those statutes. The federal-state distinction also divides the Court’s decisions into two groups with mostly separate concerns. It reveals that separation-of-powers concerns primarily motivate the Court’s vagueness decisions involving federal laws, while federalism concerns are the driving force in its vagueness decisions involving state laws.

Racial time describes how inequality shapes people’s experiences and perceptions of time. This Article reviews the multidisciplinary literature on racial time and then demonstrates how Black activists have made claims about time that challenge prevailing norms. While white majorities often view racial justice measures as both too late and too soon, too fast and too long-lasting, Black activists remind us that justice measures are never “well timed” within hegemonic understandings of time. This Article ultimately argues that U.S. law embodies dominant interests in time. By inscribing dominant experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines for racial remedies and “neutral” time standards that disproportionately burden subordinated groups. Because the legal enactment of dominant time perpetuates structural inequalities, this Article urges U.S. legal actors to consider and incorporate subordinated perspectives on time. The Article concludes with a series of recommendations for centering these perspectives and rendering them intelligible and actionable in law.

The treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain. This Article focuses on the two most significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than three thousand of these agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms.

Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical distribution of power, by arguing that local government law also distributes public and private power, between private capital and cities. Correcting the historical misunderstanding helps to show how private power still shackles cities in their efforts to address important challenges.