Constitutional Law and Legal History

Constitutional Law and Legal History

Constitutional Law and Legal History

Constitution

Research

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered... MORE
In my response to reviews by Christopher Agee, Christopher Schmidt, Karen Tani, and Laura Weinrib, I explain some of the challenges of writing... MORE
Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court’s glorification of marriage created... MORE
This chapter resurrects, conceptualizes and defends an old account of why disparate impact discrimination sometimes wrongs its victims. In Local... MORE
In considering contemporary conflicts between religious freedom and equality law, a mediating principle has proved to be important, namely the rule... MORE
This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of... MORE
The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from... MORE
Though it may sound surprising, there is a great deal of debate about whether speakers have free speech rights. Those who deny it say that the... MORE
The issues of mass migrations, displaced persons, and refugees from war-torn countries are not new, but they have become particularly prominent and... MORE
Constitutions around the world have come to protect a growing number of social rights. This constitutionalization of social rights has generally... MORE
Long before I finished writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, my new book about the rapid downfall... MORE
Joe Giarratano was on death row for twelve years, and remains incarcerated today, because mental illness and severe emotional distress wholly... MORE
The Supreme Court’s initial decision in Fisher v. University of Texas, cast great doubt upon affirmative action in higher education. Fisher I... MORE
In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice. It... MORE
The fight over how to govern the police has become the most controversial legal topic in American politics, yet American lawyers are often are... MORE
Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects,... MORE
What causes black infants to die at two to three times the rate of white infants and what can be done to address those causes? For decades, every... MORE
Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve... MORE
Voter ID laws have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the... MORE
Congress passed the Civil Rights Act of 1964 after nearly 90 years in which it enacted no major civil rights legislation. The 1964 Act stood out then... MORE
Of the many audiences for Richard Brooks and Carol Rose’s Saving the Neighborhood, the one I will talk about today, perhaps unsurprisingly, is the... MORE
This encyclopedia entry provides an overview of law governing the police. As it notes, police officers are granted immense authority by the state to... MORE
A police officer needs probable cause to make an arrest. But, almost always, he needs no more. In this way, an arrest may be constitutionally... MORE
This article makes three contributions. First, it represents the first effort to identify and trace the origins of the legal category of civil rights... MORE
The abstention doctrines that developed in the 1940s and 50s, as scholars have noted, reflected certain strands of Progressive and New Deal Legal... MORE
This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s... MORE
It is not always easy to identify a new field or a new paradigm for an old field. It can creep up on you - a book here or an article there. But there... MORE
The Wickersham Commission report on The Third Degree, found in the Commission’s famous Report on Lawlessness in Law Enforcement ended with the... MORE
This article argues that much of what has been described as “the end of men” is in fact the recreation of class. Greater inequality among men and... MORE
Special education law relies on certain assumptions regarding brain development, function, and dysfunction. Recent neuroscience research suggests... MORE
This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until... MORE
There are at least two competing ways of understanding when laws or other actions by governments wrongfully discriminate. On one view, the wrong... MORE
The concept of discrimination does many different kinds of work in the law, across the entire range of abstraction, from specific prohibitions to... MORE
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and... MORE
This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are... MORE
The last two decades have seen a revival of interest in the Thirteenth Amendment as a source of constitutional rights. Arguments based on the... MORE
This article charts a middle way in recent scholarship on the Thirteenth Amendment, which tends toward extremes. One view is that the amendment might... MORE
With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police... MORE
Obtaining informed consent has typically become a stylized ritual of presenting and signing a form, in which physicians are acting defensively and... MORE
Almost no one in the legal academy has written more (or better) about guilty pleas and plea bargains than Stephanos Bibas. In a forthcoming article... MORE
The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants... MORE
A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features... MORE
This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O.... MORE
Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring... MORE
Goluboff’s essay describes the critical role played by individuals bringing cases through organizations like the NAACP or other avenues to the state... MORE
In her compelling and important new book, Nancy MacLean describes a fundamental transformation of postwar American society from a “culture of... MORE
There are at least two different historical approaches to constitutional interpretation. The first is what constitutional scholars most readily... MORE
This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and... MORE
In Dukes v. Wal-Mart, the Ninth Circuit upheld the certification of the largest employment discrimination class in history, with more than 1.5... MORE
The Rawlsian texts appear not to be consistent with regard to the status of the right of freedom of association. Interestingly, Rawls's early work... MORE
In 1940, in the inaugural issue of its Bill of Rights Review, the American Bar Association's Bill of Rights Committee expressed its conviction "... MORE
Recent legal scholarship challenges the default psychological assumption in antidiscrimination law that discrimination is a function of psychological... MORE
In February 2004, the City of San Francisco began to issue marriage licenses to same-sex couples; eventually the City would issue over 3,500 same-sex... MORE
During World War II, the lawyers of the NAACP considered the problem of discrimination in employment as one of the two most pressing problems (... MORE
Although the language of the First Amendment refers to freedom of speech, it turns out that most of the vast universe of speech remains untouched (... MORE
A lively debate has raged in recent years about how to regulate employment reference practices. According to the conventional account, employers... MORE
The shift during the 1940s from American public concern with class to concern with race has become a commonplace in American historiography.... MORE
In the Michigan affirmative action cases, the Supreme Court not only reaffirmed the result of the 1978 decision in Board of Regents of the University... MORE
State constitutional provisions dating back to the nineteenth century occupy an increasingly prominent place in the twenty-first century debate over... MORE
Title IX of the Education Amendments of 1972 generally prohibits sex discrimination by education institutions that receive federal funds. In a series... MORE
The purpose of this Note is to question whether racial matching by courts and child-placement agencies serves the best interests of Black children.... MORE
Two growing literatures critique Hobbesian corporate cultures. Management analyses document the way high-stakes/zero-sum bonus systems undermine,... MORE