Contrary to its critics, Dobbs v. Jackson Women’s Health Organization is not illegitimate or lawless. It is a highly consequential but fundamentally ordinary example of the inextricable connections between morality and constitutional law. If abortion is akin to murder, Dobbs could not—and should not—have come out any other way. If abortion is essential to personal autonomy and equal citizenship, the case was wrongly decided and should be reversed at the earliest opportunity.

The appropriate response to decisions like Dobbs is to criticize the moral judgments underlying them. Depending on the circumstances, institutional responses, such as court packing and jurisdiction stripping, might also be justified. But conflating moral disagreement with lawlessness is both unpersuasive and a distraction from the core issue. It is also a form of crying wolf that risks backfiring when the charge of lawlessness is actually justified.

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection.

When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts. This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one. This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure. This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account.

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose its failings. Despite municipal, state, and federal actors’ efforts to expand availability, members of the public are too often forced to rely on the private provision of bathrooms. It is clear that the status quo has failed to address this most basic human biological necessity.

This Article makes the case that recognizing a state constitutional right to public bathrooms is the best way to address this problem. Drawing from recent developments in international human rights, it sets forth the basis on which courts could recognize a right to public toilets as part of a state constitution’s public health provision.

Academic freedom is an essential principle undergirding education in the United States.  Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth.  Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine.  Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law.  Courts have done little to analyze what protections academic freedom provides, and case law generally provides too much protection in some cases, and too little in others.  Worse, academic freedom for universities and professors has been hotly debated and thus well-defined and protected in case law, whereas students’ academic freedom has received less attention, making it a “second-tier” academic freedom.  Often, protecting university and professors’ academic freedom comes at the expense of students’ academic freedom, though courts have never truly struggled with multistakeholder academic freedom questions or tried to create a clear process to determine whose academic freedom prevails when the two conflict.  This results in academic freedom being used as a sword to promote discriminatory behavior, and as a shield to protect acts of discrimination from being punished.  Existing constitutional and statutory antidiscrimination protections do not provide adequate support against discrimination, especially for students’ academic freedom.  Constitutional protections for students’ academic freedom often take the back seat to free speech doctrine, and antidiscrimination protections are often parried by using academic freedom to protect problematic behavior.

A few solutions abound: first, the definition of academic freedom is nearly a century old, and needs to be redefined to incorporate antidiscrimination principles to be relevant for the present.  Second, students’ academic freedom rights need to be understood and defined more clearly.  Third, courts must find a way to balance competing stakeholders’ academic freedom interests, ultimately looking to the purpose of academic freedom to advance knowledge.  Finally, universities must play their part by creating systems and structures to ensure that discrimination is remedied as early as possible, and that university processes help clarify the extent of academic freedom definitions and support application of antidiscrimination law.

On April 1st, 1997, Eric Oliver was arrested by the Las Vegas Metropolitan Police Department and detained at the Clark County Detention Center (CCDC). For the first two days of his detention, Oliver was locked in a 404 square foot cell with around fifty other detainees.  On April 3rd, he was transferred to a smaller cell, only 174 square feet, where he was kept with eighteen other people.  For the following three days, Oliver was locked in the cell with no bed and no linens.  He and the other detainees slept on the floors with intense overhead lighting and extreme air conditioning that “chilled [him] to the bone.” Oliver requested medical attention for a back condition, but his request was denied.  After his release from jail, Oliver filed a § 1983 action against the management, Clark County, and the Clark County Sheriff, alleging violations of his Fourteenth Amendment rights.

Since Oliver brought his suit in Nevada, his claim for compensatory damages survived a motion to dismiss, even though he was not able to demonstrate a physical injury. This was notable because § 1997e(e) of the Prison Litigation Reform Act (PLRA) creates a physical injury requirement for incarcerated people who bring § 1983 claims. However, if Oliver had lived in Philadelphia, New York, or a number of other cities across the country, his claim for compensatory damages would have been dismissed. These disparate outcomes would have been the result of the different ways courts interpret the physical injury requirement of the PLRA.  In this particular instance, Oliver’s claim survived because he was in the Ninth Circuit. Claims in Philadelphia or New York would have been governed by the Third and Second Circuits, respectively, both of which have case law that would prevent the award of compensatory damages.

There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past—like precedent—will constrain it. And that the decisions of the preceding terms—overturning Roe v. Wade, expanding the “right to bear arms,” ending affirmative action, among other extraordinary decisions— are just the beginning of a long and cold jurisprudential winter.

Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the “need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.”

This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court’s originalism has become.

“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the effects of New York State Rifle & Pistol Association, Inc. v. Bruen are already being felt. Several courts, including one circuit court, have already struck down a potpourri of federal firearms statutes. This trend may continue to gain momentum, or it may be stopped in its tracks by a new Supreme Court decision that places limits on Bruen. But it is unlikely to fizzle out on its own.

This article seeks to understand these recent events as distinct modern phenomena. To do so, it creates a holistic, conceptual framework that situates the developments of the last thirty years within the broader, global history of the federal government’s approach to firearms crime. The framework organizes the story of federal firearms policy into a series of conceptual narrative clusters—or acts—each with its own characters, conflicts, and shared views about the role of law in society. Through this framework, themes and trajectories emerge, shedding valuable light on our understanding not only of where we are and where we have been, but also of where we are going in our federal approach to firearms crime. As the first article that paints a comprehensive picture of federal firearms policy in this way, and as one of the first to address the emerging post-Bruen legislation, it will also add structure, focus, and energy to important ongoing scholarly discussions.

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.

My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking immigrants’ lives. They do so in part by normalizing death as the inevitable cost of upholding the rule of law. And yet, there is nothing normal or inevitable about the myriad policy choices, statutory provisions, and evacuations of constitutional protection that undergird immigration law and enforcement. These choices form an architecture that, in the words of Achille Mbembe, “subjugate(s) life to the power of death.”1 I consider death by design, death by enforcement, death by denial, and death by expulsion—then show how jurisprudence and laws accept and contribute to these deaths. In the final sections of my paper, I consider how we might dismantle the assumptions, laws, doctrines that devalue and take noncitizen life throughout our immigration system.

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited the addition of any severity contemporary science deemed unnecessary for those ends. The historical record should thus provide, not prevent, a distinctly Pennsylvanian definition of cruelty.

This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Supreme Court of Pennsylvania interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments.

Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history supplies.

Imagine receiving a letter in the mail from a credit card company, notifying you of your “pre-approved” status. Relief after being exempted from the complicated screening process, happiness at the prospect of an elevated credit score, elation at receiving a shiny new card in the mail. These are all common feelings when receiving an enticing credit card offer. How then would it feel if you applied, but were quickly denied? And afterwards, that your credit score plummeted due to the ensuing credit report inquiries? The parade of horribles does not stop there. Not only must you face the embarrassment of rejection and the unwarranted drop in your credit score, but also the reality of your new credit score negatively impacting future applications. This exact chain of events led to the FTC bringing a complaint against Credit Karma in 2022. While Credit Karma eventually paid upwards of $3 billion to affected consumers, many defrauded consumers are not so lucky. The current state of commercial speech regulations can make recovery difficult, if not impossible, because they center on the speaker’s right to freely promulgate ideas. Advertisements qualify as protected speech under the First Amendment so long as they are not blatantly deceptive. Even if a challenge is brought against deceptive advertising schemes, Unfair and Deceptive Practice Statutes (“UDAP”) are unwieldy in practice and can be riddled with loopholes that allow an advertiser to escape liability.

It is my honor to give the Owen J. Roberts lecture in constitutional law, named for a former dean of this law school and for a Supreme Court Justice perhaps most famous for casting the deciding vote in the 1937 case West Coast Hotel v. Parrish, which upheld a state minimum wage law and averted passage of a judicial reform bill to increase the size of the Supreme Court—the so- called “switch in time that saved nine.” Justice Roberts is also known for leading the federal commission that investigated the attack on Pearl Harbor and for being one of three dissenters in Korematsu v. United States, which upheld the relocation and incarceration of persons of Japanese descent during World War II, two-thirds of whom were American citizens.

It is also my honor to give the Provost’s Lecture on Diversity. This topic has long been a matter of personal and professional interest for me. Like many people who grew up in an immigrant family, I’ve had my share of experiences navigating racial and ethnic differences. As a judge, I have seen issues of implicit bias and structural bias play out in areas like jury selection, search and seizure, and the criminal justice system writ large.

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty conflict, the Article explains why neither the traditional Madisonian—nor the contemporary party-based—model of the separation of powers accurately characterizes how political parties structure our constitutional framework.

The Article makes several contributions. Descriptively, it argues that intraparty conflict can immunize our constitutional system from the pathologies that arise when partisan warfare is overlayed on the Madisonian model of separated institutions sharing power. Analytically, it argues that public law scholars are wrong to treat partisanship as an identity—a fixed psychological state characteristic of individual officeholders. As the Article makes clear, partisanship is better understood as the product of institutional rules and procedures that empower partisans to join forces or go their own way. Likewise, it argues that there are analytic gains from categorizing decisions on campaign finance, candidate selection, and voter suppression as part of our separation of powers and federalism jurisprudence and explains how doing so might bear on traditional questions of constitutional law. Today, as was true at the Founding, Americans have no great love for intraparty conflict or party factionalism. But fear of the mischiefs of faction have blinded us to their merits. Preoccupied as we are by the pathologies of political polarization, we have failed to understand that the relative porousness of our parties—the very feature that drives internal party conflict—has helped to safeguard our republic and ensure the representativeness of our institutions.

“We are a nation of travelers. You cannot write our history without devoting many chapters to the pony express, the stagecoach, the railroad, the automobile, the airplane . . . . Yet, until 1964, the Federal Government did little or nothing to help the urban commuter.” President Lyndon B. Johnson’s remarks, at the signing of the Urban Mass Transportation Act, memorialized transportation evolution. His remarks also reinforced the role of federal funding to support urban commuters—many who are African American. Yet, disparate transportation funding continues to exclude people of color and people living in poverty from traveling to and benefiting from all services in their cities.

Caroline LeCount, Claudette Colvin, Irene Morgan, and Rosa Parks’ refusal to relinquish their seats and the ghastly beatings of freedom riders also document the legacy of exclusionary transportation practices. Getting on the bus symbolized mobility, access to opportunities, and ending segregated public transportation. In addition to protesting segregated buses, the 381- day Montgomery bus boycott exposed the role of transportation as a valued resource affecting economies, government operations, and employment. Similarly, the Supreme Court’s ruling that separate but equal is inherently unequal did more than integrate buses. The Court’s ruling signaled enhanced regulating of transportation systems and limiting the right to exclude in those systems.

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes between 1776-1784, provides needed empirical evidence for linking a constitution’s legitimacy to getting all the right groups “in the room where it happened” and suggests further theoretical links between constitutional process and a constitution’s medium and long-term legitimacy. It also provides the first detailed telling of the moment when the theory of popular sovereignty was made real through the earliest popular constitution-writing and further participatory innovations not repeated for another 200 years in Africa.

This study first reviews relevant extant literature on domestic and comparative constitutionalism before proceeding to an in-depth study of New Hampshire’s five constitutional processes. The first process produced a temporary constitution on January 5, 1776. This crude, 911-word document heralded the first epoch of popular sovereignty- inspired constitution-writing. New Hampshire’s next three attempts were instituted via popular sovereignty innovations of constitutional conventions, supermajoritarian ratification, direct popular participation in constitution drafting via town recommendations, and special issue constitutional referenda, but all were stillborn. This because each excluded the western-most portion of the state. It was not until the process included representatives from this area “in the room [where the constitution] happened” that a draft was finally ratified in 1784.

In the last few decades, the Supreme Court adjudicated three major cases on standing for environmental litigants: Lujan v. Defenders of Wildlife (Lujan II), Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), and Massachusetts v. EPA. Lujan II considers a multitude of questions in this inquiry. There, the Court deliberates on the specificity of injuries alleged to occur in the future, the contours of three nexus theories, and the judicial review of procedural injuries. Thereafter, Laidlaw assesses whether it is reasonable for plaintiffs to be apprehensive of the alleged future injuries. Then, Massachusetts contemplates procedural injury again, where the Court contemplates Congress’s power to influence standing requirements. These cases provide rich discussions on standing for environmental litigants; yet, the Fifth Circuit does not integrate their doctrines.

This Comment focuses on the Fifth Circuit, due to the Circuit’s critical coverage of Texas and Louisiana. These states house the largest petrochemical complexes in the United States, which affect surrounding air and waterbodies through their industrial operations. Water pollution is potent for those living near the Texas Gulf Coast, which is exposed to the nation’s highest level of toxic releases. In terms of air pollution, Texas and Louisiana emit the highest amounts of petrochemical pollutants. These releases pose health risks for nearby residents, as these chemicals are conducive to developmental damage, cancer, and elderly mortality. The influence of environmental law—and its enforcement through litigation—is particularly salient in the Fifth Circuit’s jurisdiction.

This Comment will examine cases where the Fifth Circuit could benefit from the Supreme Court’s analysis of standing in cases arising from pollution. First, the basis for environmental litigation will be outlined; Part I will explore the congressional intent behind citizen suit provisions, and Part II will outline the general requirements of Article III standing. Then, Part III will discuss the Supreme Court’s standing analysis in environmental litigation, focusing on Lujan II, Laidlaw, and Massachusetts. Finally, Part IV will compare these Supreme Court precedents to the Fifth Circuit’s caselaw, wherein missed opportunities to draw factual and logical parallels will be identified. This discussion will be focused on the specificity of injury, the judicial authority to review procedural injury, and the adoption of the nexus theories.

Few figures in American history have faded farther from renown to obscurity than John Taylor of Caroline. John Taylor was not only a widely respected United States Senator and leading member of Thomas Jefferson’s Republican party, but he was also, in the opinion of British political scientist M.J.C. Vile, “the most impressive political theorist that America has produced.” An Antifederalist lawyer and farmer, Taylor made such thoughtful contributions to the development of the Republican party and the philosophy of states’ rights that American constitutional scholar and historian Kevin R. C. Gutzman identified him as “Virginia’s favorite thinker” over the course of the Revolutionary period to the antebellum era. Taylor wrote profusely over the course of his life, devoting most of his attention to expounding the meaning of the American Revolution, the substance of the Constitution, and the principles of the American polity. But despite consensus “[a]mong specialists in the field of American intellectual history and political thought” that Taylor “deserves the status of a major thinker,” Taylor is little known by most audiences today. And even though historians, political scientists, and legal scholars “have often agreed that Taylor was important, they have seldom agreed why.” This Comment highlights one aspect of Taylor’s thought that warrants particular attention because of its relevance to modern discussions of federalism, separation of powers, and states’ rights in hopes of bringing Taylor’s work into the light it merits.