Volume 91.8

December

2024

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which White Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. The Article concludes by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation.

States increasingly deploy aggressive preemption measures against disfavored localities. Scholars have raised the alarm, but cities’ subordinate legal status leaves them disempowered. To push back, municipal advocates need to thoroughly understand the complex bilateral relationship between cities and their states.

That is where I come in. As Mayor of a progressive city in a conservative state, I swim in the hostile symbiosis that characterizes city-state relations. By drawing on real-life examples, closed-door conversations, and previously private documents, my coauthor and I demonstrate the potence of multi-pronged city power. We synthesize our stories into a thicker account of state motivation, and then showcase the city’s “toolbox” for limiting state preemption.

That process unearths preemption’s next frontier. Post-enactment state preemption, or “post-emption,” occurs when a state retroactively nullifies a specific, already-passed municipal law. It has been widely acknowledged but not individually distinguished. Analyzing it independently reveals that it is already ubiquitous and likely to proliferate. Post-emption thus warrants individualized normative assessment, and this Essay begins that surprisingly nuanced discussion.

Everyone owes each other a duty of ordinary care—but what is “ordinary”? How does one act reasonably to meet this burden? This Comment analyzes the current reasonable person standard for disabled plaintiffs and the corresponding duty of “ordinary care” provided by defendants through a critical disability studies lens. The current system of tort law burdens disabled plaintiffs with accommodating themselves, rather than requiring defendants to include accessible care in meeting their duty of ordinary care. To make the distribution of accommodative labor more equitable, this Comment proposes three stackable changes: (1) courts should reinterpret defendants’ duty of ordinary care to include care of individuals with disabilities by eliminating the doctrine that tortfeasors owe accommodations to people with disabilities only if they are on notice of their disabilities; (2) courts could further shift the balance of accommodative labor by factoring the mental and physical cost of accommodating oneself into the reasonable care inquiry when the plaintiff is disabled; and (3) courts could eliminate comparative negligence for plaintiffs with disabilities to address the problematic “reasonable person with a disability” standard. This Comment also explores theoretical, doctrinal, and normative justifications while creating space for a more robust dialogue on how the law treats disability as “extra”—but not ordinary.

Anti-fat bias has been described as the last socially acceptable form of prejudice. Despite the discrimination that fat people face, there is no federal protection against weight discrimination. One potential solution to the lack of existing legal protections is the Americans with Disabilities Act (ADA). Claims challenging weight discrimination under the ADA argue that weight discrimination is a form of disability discrimination that is based on the medical condition of obesity. Yet, courts have resisted granting the ADA’s protections to obese plaintiffs.

This Comment argues that courts should recognize obesity as an ADA-protected disability, even in circuits that have restricted obesity-as-a-disability ADA claims to cases where a plaintiff can show that their obesity is related to a physiological disorder. The author draws parallels between obesity and gender dysphoria to highlight courts’ recent willingness to extend the ADA’s protection to highly stigmatized clinical conditions when a diagnosis has gained credibility in the medical community and evidence suggests that the condition has a physiological cause.

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.

This Comment analyzes the entrance of institutional investors into the single-family rental market after the Great Recession of 2008. The collapse of the housing market during the Great Recession fundamentally changed the ownership structure of U.S. single-family homes. This post-recession reality has introduced a housing puzzle: the pricing trends of single-family rentals in the decade after the Great Recession suggest that institutional investors have captured monopolistic power over the single-family rental market despite owning a relatively small market share. Thus, this Comment evaluates the housing puzzle through the lens of antitrust law.

While a potential antitrust case appears to suffer from the critical weaknesses of low entry barriers and market shares, analyzing the institutional entrance into the single-family rental market under antitrust merger doctrine reveals that the case is stronger than it may initially seem. After evaluating the antitrust case, this Comment considers how the housing market can instruct antitrust doctrine’s further evolution, since commentators across academia, the media, and politics all criticize institutional entrance. By highlighting how unique market facts in housing obfuscate market power, this Comment suggests expanding the merger analysis to include not just levels and changes in concentration, but also orders of magnitude.