Constitutional Law

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Article
Volume 92.1
Scrutinizing Sex
Jessica A. Clarke
Robert C. and Nanette T. Packard Professor of Law, University of Southern California Gould School of Law.

Thanks to Courtney Cahill, Mary Anne Case, David Cruz, Mike Dorf, Ben Eidelson, Katie Eyer, Aziz Huq, Courtney Joslin, Craig Konnoth, Laura Lane-Steele, Chan Tov McNamarah, Laura Portuondo, Camille Gear Rich, Naomi Schoenbaum, Ann Tweedy, Ezra Young, Adam Zimmerman, and workshop participants at the 2024 West Coast Sexuality & Gender Law Workshop, Cornell Law School, and Vanderbilt Law School for feedback, and to Molly Gray for research assistance.

Critics of the Supreme Court’s equal protection jurisprudence despair that the Court conceives of discrimination as the mere classification of individuals on forbidden grounds, such as race and sex, rather than systemic patterns of subordination. On the Court’s anticlassification theory, affirmative action, which relies on overt racial or gender classifications, is generally forbidden. Such context-insensitive anticlassification rules could, in principle, extend to individuals who are members of groups often regarded with hostility and suspicion, such as transgender people. Indeed, this is how most trial courts have approached recent laws that classify individuals based on sex to exclude transgender people. However, appellate courts have refused to take anticlassification rules seriously. This Article argues that all sex classifications, like all race-based ones, ought to trigger heightened constitutional scrutiny. It draws support from the principles undergirding anticlassification rules announced by the Roberts Court, most recently in its university affirmative action decisions.

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Article
Volume 92.1
Reestablishing Religion
Richard Schragger
Walter L. Brown Professor of Law, University of Virginia School of Law.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

Micah Schwartzman
Hardy Cross Dillard Professor of Law, University of Virginia School of Law.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

Nelson Tebbe
Jane M.G. Foster Professor of Law, Cornell Law School.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. Now, the government must treat religion equally with respect to providing public benefits. But it must also grant special exemptions from regulations that burden religion. We refer to this regime as structural preferentialism. This Article offers an external, political account of changes in Free Exercise and Establishment Clause jurisprudence by analyzing them as if they were the result of political conflicts between competing interest groups. Focusing on the role of religion in political polarization, rapid disaffiliation from denominations, and shifting strategies to fund religious schools, this political perspective has explanatory and predictive power that extends beyond conventional legal arguments about text, history, and precedent. Applying this approach, we predict that structural preferentialism will transform First Amendment doctrine and provide material grounds for its own entrenchment.

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Comment
Volume 91.8
When the Taker Goes Broke: Takings Claims in Municipal Bankruptcy
Joshua Kayne Kaufman
B.A. 2021, The University of Chicago College; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Josh Avratin, Douglas Baird, Vincent Buccola, Andrea Kayne, Kate Gehling, Ryan Schloessmann, Jenna Liu, Jack Brake, Karan Lala, and many other members of the University of Chicago Law Review for their thoughtful advice and feedback. In addition, I would like to thank Maria Sofia Peña, Andrea Kayne, Ariel Kaufman, Jacob Kaufman, Borscht Kaufman, Babka Kaufman, Justin Peña-Behar, and my friends for their support throughout the writing process. This Comment is dedicated to Chicago—my home for the past quarter century and a testament to the importance of giving communities a second chance.

When a municipality takes property, the former owners can allege a violation of the Takings Clause and try to recover just compensation. But what should happen when the municipality goes broke and enters municipal bankruptcy? Can the municipal bankruptcy code empower judges to release municipalities from their obligation to pay just compensation through a discharge? Or does the Takings Clause provide special constitutional protection to claims for just compensation from a municipality that immunizes the claims from discharge? This issue has played out in municipal bankruptcies in Detroit, Michigan; Stockton, California; and Puerto Rico—where courts are deeply divided on the right approach, resulting in a live circuit split. This Comment provides the first comprehensive analysis that shows takings claims are constitutionally dischargeable. As a threshold matter, the Comment shows that formalist considerations do not require immunizing takings claims from discharge. The Comment then shows that making takings claims dischargeable follows best from the original design of the Takings Clause given the host of procedural and political safeguards within municipal bankruptcy that would protect takings claimants against abuse. Lastly, the Comment shows that making takings claims dischargeable is normatively good.

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Comment
Volume 91.7
Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule
Tom Malaga Kadie
B.A. 2019, University of California, Berkeley; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Professor Lior Strahilevitz and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight.

This Comment uses the case study of guns-at-work laws to understand Cedar Point v. Hassid’s per se takings rule as well as its exceptions. Enacted by about half of the States, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles even if those private vehicles are on company property (i.e. parking lots/parking structures). While these laws have long survived Takings Clause challenges, Cedar Point revived the viability of such challenges. Using the example of guns-at-work laws, the Comment seeks both to understand the scope of Cedar Point’s per se takings rule and to clarify and develop the open-to-the-public and long-standing restrictions on property rights exceptions to it.

Online
Article
The Truth of Erasure: Universal Remedies for Universal Agency Actions
T. Elliot Gaiser

T. Elliot Gaiser is the Solicitor General of Ohio. He previously clerked for Associate Justice Samuel A. Alito, Jr., at the Supreme Court of the United States; for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit; and for Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. He holds a J.D. from The University of Chicago Law School and a B.A. in Political Economy and Rhetoric & Public Address from Hillsdale College.

Mathura Sridharan

Mathura J. Sridharan is the Director of Ohio’s Tenth Amendment Center and serves as a Deputy Solicitor General in the Ohio Attorney General’s Office. She previously clerked for Judge Steven J. Menashi on the U.S. Court of Appeals for the Second Circuit and Judge Deborah A. Batts on the U.S. District Court for the Southern District of New York. She holds a J.D. from New York University School of Law, and an M.Eng. in Electrical Engineering & Computer Science and a B.S. in Electrical Engineering & Computer Science and Economics from Massachusetts Institute of Technology.

Nicholas Cordova

Nicholas A. Cordova is an associate at Boyden Gray PLLC and former Simon Karas Fellow to the Ohio Solicitor General. He previously clerked for Judge Paul B. Matey on the U.S. Court of Appeals for the Third Circuit. He holds a J.D. from Harvard Law School and a B.A. in Political Science from Waynesburg University.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.

Administrative Law Constitutional Law
Online
Essay
Religious Coercion and Kennedy v. Bremerton School District
Jason T. Hanselman
Jason T. Hanselman is a J.D. Candidate at the University of Chicago Law School, Class of 2024.

He thanks the University of Chicago Law Review Online team for its thoughtful commentary and is grateful for Kayla Parker, to whom he dedicates any and all persuasive arguments in this Case Note.

The First Amendment prohibits the state from “establish[ing]” a religion, and it is uncontroversial that this prohibition extends to so-called religious coercion.

First Amendment
Online
Essay
Can Stealthing Qualify? Navigating Rape Exceptions in States’ Abortion Bans
Erin Yonchak
Erin Yonchak is a J.D. Candidate at the University of Chicago Law School, Class of 2024.

She thanks the exceptional editors of the University of Chicago Law Review Online team. Erin dedicates this Essay to all victims of sexual violence and to all people whose abortion access is in jeopardy.

TW: Rape, Sexual Assault
In June 2022, Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), leaving states with complete discretion in determining the legality of abortion.

Statutory Interpretation
Online
Essay
Offended-Observer Standing’s Last Stand: Kennedy as the Final Nail in a Flawed Doctrine’s Coffin
Stephen Vukovits
Stephen Vukovits is a J.D. Candidate at the University of Chicago Law School, Class of 2024.

He thanks Matthew Makowski, Anson Fung, Virginia Robinson, and the University of Chicago Law Review Online team.

This past term, the Supreme Court in Kennedy v. Bremerton School District (2022) formally overturned the notorious Lemon test that had governed Establishment Clause jurisprudence for more than a half-century.

Federal Courts First Amendment

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