Print Archive

Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers. This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens interstate commerce.

Partisan gerrymandering distorts voter preferences and undermines electoral competitiveness. Single-state redistricting reform has stalled because legislators and voters alike face diminishing incentives to reallocate power to their state’s minority party as partisan polarization increases. In the congressional redistricting context, however, interstate compacts could replace those incentives to compete with incentives to cooperate. The Constitution’s Compact Clause permits states to collaborate with each other but requires congressional consent. Yet the Constitution remains silent about which interstate agreements trigger this requirement, how Congress may provide consent, and how the Compact Clause interacts with the Elections Clause. This Comment explains how states could form redistricting compacts even without affirmative congressional approval.

Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Congress can be weak willed when it violates such statutes, and this weak-willed action jeopardizes the advantages of enacting such statutes in the first place. I propose that courts may apply familiar canons of statutory interpretation to hold Congress accountable to its commitments.

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy. This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy’s legitimacy. The results support the century-old idea that empowering politically insulated, expert decision-makers legitimizes agencies. This finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies’ perceived legitimacy. By contrast, the theory that greater presidential involvement enhances legitimacy receives no support.

The appropriate scope of the right to exclude is among the most contentious topics in property theory. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because everyone must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to keep off property unless the owner allows them on, is simple enough to be understood easily by those who must respect it. This Article defends an alternative analysis of how the information costs of property bear on the proper scope of exclusion. Legal rules generate two kinds of information costs: the costs of learning rules and the costs of applying them. While simpler rules may be easier to learn, they need not be easier to apply. Instead, a rule is easy to apply if individuals can easily determine whether a particular action would violate it. Once the costs of applying the right to exclude are considered, I claim, the law sometimes reduces information costs not by respecting exclusion but rather by restricting it. Information costs do not uniformly support greater exclusion, then, as exclusion’s defenders have argued; rather, those costs sometimes favor restricting it.

Under the Judicial Conduct and Disability Act of 1980, it falls to federal judges in each circuit to investigate and redress complaints about their colleagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. This Comment develops and defends a bright-line rule for conceptualizing effective removal. When a case-suspension sanction even temporarily has the effect of disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office. After crystallizing this concept, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA; assesses the risk that the Act’s case-suspension provision could be abused; and proposes an amendment that would foreclose effective removal.

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white-collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope. Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have struggled to consistently determine whether alleged property interests are covered by these statutes. This has led to overturned convictions in high-profile mail and wire fraud cases. This Comment aims to aid courts conducting the traditional property interest analysis by synthesizing the Supreme Court’s property-based case law and proposing a hallmarks-of-property test.

Federal law authorizes the reinstatement of a prior removal order when a noncitizen “reenter[s] the United States without authorization after having already been removed.” The question whether a noncitizen is removable is thus definitively settled immediately upon reinstatement. But the question to where the noncitizen will be removed is less certain. This is because noncitizens subject to reinstated orders of removal retain the right to pursue “withholding-only” relief, which precludes removal to the noncitizen’s home country when extreme dangers await them there. This lag—between when removability, on one hand, and the country of removal, on the other, are determined—has exposed an ambiguity in the statute providing for judicial review of a “final order of removal,” 8 U.S.C. § 1252. Specifically, § 1252(b)(1) requires that a noncitizen file a petition for review within thirty days of the final order of removal. But when does a reinstated order of removal become final? Specifically, does finality attach when the prior removal order is reinstated (such that removability is determined) or when the administrative process for adjudicating claims for withholding-only relief has concluded (such that the country of removal is determined)? This Comment contends that the soundest construction of § 1252 deems reinstated orders of removal final when withholding-relief proceedings conclude.

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.