Title IX of the Education Amendments of 1972 (Title IX) plays a critical role in addressing sex discrimination in academic settings. Though the statute envisions robust administrative enforcement, courts have largely been responsible for shaping Title IX’s liability framework, including in cases involving student-on-student sexual harassment. In two early decisions, the Supreme...
Advanced note to readers: The survey experiment in this Article depicts acts of verbal violence, including the use of raceand gender-based epithets. Some of the relevant caselaw also includes offensive or harmful language. As one of only a handful of exceptions to the First Amendment’s bar on laws proscribing speech, “fighting words” are defined as “those personally abusive...
Historically, the financial markets of the United States and their corresponding regulatory scheme wielded unique influence throughout the globe. But this influence is waning, due largely to the centralization of financial services rulemaking within the European Union and the growth of global emerging markets. It is thus an important time to consider the circumstances under which...
Scholars are obsessed with the Roberts Court’s recent turn to history and tradition. But another source of authority has also emerged as an important feature of the Roberts Court’s approach to constitutional cases. In previous work, I have referred to this source of authority as popular meaning. While original meaning identifies the best reading of the Constitution’s text at the...
In 1973, Congress responded to the U.S. Supreme Court’s Roe v. Wade decision by passing legislation known as the “Church Amendments.” The Church Amendments were designed to protect healthcare workers from being compelled by their employers to perform or participate in abortion or sterilization procedures that conflict with their moral and religious beliefs. However, the Church...
This Article examines the U.S. Supreme Court's approach to cases involving religious liberty and LGBTQ+ rights through the lens of social psychology. As Americans increasingly sort into opposing “mega- identities” defined by political, racial, and religious traits, religious liberty has become a deeply polarized issue, with traditional Christians and LGBTQ+ advocates often...
Religious exemptions from general laws are everywhere. The U.S. Supreme Court is expanding its exemption doctrine, systemically preferring religious needs over conflicting considerations. This ignites an ongoing debate between those celebrating religious liberties and those fearing their societal costs. Assessing this judicial trend, as this Article highlights, requires noticing...
During the oft-deemed Constitutional Revolution of 1937, the U.S. Supreme Court effected a significant sea-change in its substantive due process liberty analysis. In West Coast Hotel v. Parrish, the Court held that the Due Process Clause’s liberty provision does not protect absolute freedom of contract, signaling the demise of the Lochner era. Almost a century later, the current...
This Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of...
In recent decades, the exercise of religious freedom is increasingly associated with oppression. This is not only due to the disagreement between religions and some governments concerning sexual expression matters—contraception, abortion, same-sex relations, and transgender identity—but is also due to diverging convictions about the substance and sources of freedom. This Article...
By Taylor Percival James, Published on 06/30/25
The Fifth Amendment requires statutorily authorized condemnors to provide just compensation to landowners for all takings. The procedural method used by states to determine just compensation varies widely among states and is often separate from the more standard procedures existing in traditional civil litigation. Regardless of their method, all fifty states and the District of...
In Harrington v. Purdue Pharma, the United States Supreme Court held that victims of the opioid crisis could not be forced to release their independent claims against the Sacklers, who owned and controlled Purdue, without the victims’ consent. Such releases had become a controversial mainstay of mass tort bankruptcy filings. Yet Purdue was decided on narrow, textualist grounds...
The Exceptions Clause of Article III of the Constitution is clear that “Congress” “shall make” the rules prescribing the Court’s “appellate jurisdiction.” And so Congress did for almost 150 years. But in the twentieth century, Congress delegated its power to the Supreme Court in the form of—as Chief Justice Taft demanded—”absolute and arbitrary” discretion to pick its appellate...
Over the past decade, artificial intelligence (AI) has begun to assist, augment, and influence judicial and legislative work. At the end of 2023, U.S. Supreme Court Chief Justice John Roberts was “confident” that technological changes would continue to transform the common law and that judicial work would “be significantly affected by AI.” In the legislative realm, there are AI...
Congress intended the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to codify the Burger and Rehnquist Courts’ habeas corpus jurisprudence, which aimed to establish finality and innocence as gatekeepers to the “Great Writ.” But in practice, AEDPA hinders innocence claims, particularly claims of legal innocence. This Note agrees that innocence should be one of the...
When it comes to claims for unmatured interest—most notoriously make-whole provisions—the text of the Bankruptcy Code does not necessarily say what everyone says it does. The common interpretation is that the Code requires courts to disallow all claims for unmatured interest except those involving an oversecured creditor. This Note presents an alternative reading that resolves...
Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic...
Supreme Court reform is a lively topic of discussion and debate, with scholars, commentators, and politicians debating a variety of proposed Court reforms, such as term limits, additional Justices, and jurisdiction stripping. This Article adds a new idea to the mix: papering Justices. Several states permit each side to a dispute to file one motion to automatically disqualify the...
By David Schraub, Published on 04/30/25
The idea that employees of large corporations should be entitled to representation on corporate boards, a concept known as codetermination, is gaining ground. Progressive politicians Elizabeth Warren and Bernie Sanders have proposed codetermination regimes that would allow employees to elect between 40% and 45% of board members. Moreover, an increasing number of corporate law...