Volume 91.3

May

2024

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. On no issue have these competing perspectives clashed more intensely than affirmative action. This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action’s constitutionality. It will no longer do, however, simply to ignore antisubordination’s considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas’s much-debated jurisprudence but also clarifies our nation’s garbled constitutional discourse.

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy.

This Article analyzes the complex relationship between property and placemaking. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a more comprehensive placemaking account—with examples from Indigenous pipeline protestors to the absent and now-urban heirs of family farms and the emergence of new build-to-rent suburban housing divisions—this Article introduces a new taxonomy for evaluating the relative protection we afford to various place and place-attachment claims. This new framework separates the individual, collective, and ecological benefits of positive place relations from the risks of either overprotected place attachments (as in the case of hereditary land dynasties and exclusionary wealth) or land ownership without any attachment at all (as in the transformation of land and housing into asset classes for commodification and financialized capture). This clearer focus on placemaking also puts property law—and land tenure—at the center of core social, economic, and climate challenges. It also forces us to confront property’s ongoing role in the dispossession of groups, cultures, and communities that are not (or are no longer) recognized as legal owners and our repeated failure to accommodate the access needs of individuals not born into hereditary land or wealth.

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.” She asserts that this time should be the subject of greater consideration because this “period . . . witnessed a transformation in American constitutional law and politics.” Contrary to “the conventional story,” it was a “foundational era of both constitutional crisis and self-conscious creativity.”

The Interbellum Constitution reminds us of the important insights that have helped transform the historiography of the early American Republic, of slavery, and of relations between European settlers and Indigenous Peoples. Historians and other scholars during the latter half of the twentieth century discovered the importance of moving beyond “great man” history to tell a richer and more truthful story about the past. The story LaCroix tells is not entirely unknown, but her signal contribution is to look beyond the “great man,” “great case” perspective on the years after the War of 1812 and before the Civil War. By mining the archive for information, she expands our understanding of the range of ideas about union, federalism, and sovereignty.