How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recognition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you

Access to justice advocates worry that heightened pleading standards best represented by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are a difficult hurdle for plaintiffs. But they have entirely ignored a related development that may be an insurmountable one: the doctrine of stolen plausibility. Born at the same time the legal system has raised pleading standards, this doctrine holds that

Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the Internet of Things extract minute by minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions that

Continue readingWhen Bonds Turn to Badges.

For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. It then contends that constitutional doctrine should be reconstructed

Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic

InTrump v. VanceandTrump v. Mazars, the Supreme Court applied very different standards for subpoenas issued for the personal papers of the president, making it easier for a grand jury to acquire such materials than a congressional committee. The two opinions, both authored by Chief Justice Roberts, have been widely praised for suggesting that the president is not wholly above the law; indeed, they

When local government policies cause households and communities to become homeless, those affected are entitled to due process. Yet when the government displaces households through zoning-induced gentrification, it often acts as the perpetrator of the harm, adjudicator of disputes, and favored party on appeal. Regardless of the merits of such disputes, that process raises prohibitive access-to-justice

Plaintiffs bringing civil lawsuits often express sentiments like “I just wanted the defendants to admit they were wrong” and “we’re worth something and can’t be treated this way.” These statements suggest that civil litigation is not only a vehicle for material redress. It can also be a quest for more intangible forms of relief—respect, dignity, or vindication. But are these the kinds of interests

By all accounts, trade secret law is now recognized as one of the major categories of intellectual property law. Less recognized, however, is the degree to which private actors are pushing the law past its traditional, market-competitive boundaries and toward an all-purpose seclusion doctrine. We argue that trade secret law today is increasingly functioning not merely as a tool to protect intellectual

Whiteness is invisible in American law. The U.S. Constitution never mentions white people. Indeed, the entirety of constitutional and statutory law, at both the federal and state level, includes only two antidiscrimina-tion statutes that refer explicitly to white people. These Reconstruction- era statutes—42 U.S.C. § 1981 and § 1982—declare that all people shall have the “same right” regarding contracts

With growing economic inequality, questions of distributive justice have become increasingly prominent in legal scholarship, particularly public law scholarship. Civil procedure scholarship has been no exception, traditionally addressing such questions under the heading of “access to justice.” And yet, despite the ubiquity of the phrase, discussions of access to justice have tended to focus almost

This Note discusses historic preservation law in the context of the rede-velopment fight over the Washington, D.C. neighborhood, Barry Farm. The Note argues that historic preservation law is inadequately structured to protect and preserve properties associated with poor and nonwhite communities. The Note closely examines the efforts of Barry Farm tenants to have their homes historically designated

Half a century of state-level restrictions on abortion access might cause a casual observer to conclude that state governments have a long-standing commitment to protecting fetal life. And yet, over the last several decades, state governments and local law enforcement are increasingly taking steps that actively undermine fetal health. Through the passage of state fetal endangerment laws and the prosecution

Input from affected communities is an essential component of the reform process aimed at remedying unconstitutional police practices. Yet, no court has ever granted a community organization’s motion to intervene as a matter of right in police reform, consent decree cases initi-ated by the Department of Justice. Judicial opinions in those cases have truncated the Federal Civil Rule 24 analysis when

The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, and offensive but not legally actionable behavior. This objection is often accompanied by criticism of #MeToo’s failure to adhere to the legal paradigms that inform sexual assault and harassment, presumably setting back the efforts to advance them. Finally, the #MeToo movement is often faulted for its failure

Many presidents have been interested in asserting authority over in-dependent regulatory agencies such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of

This Note presents an original argument regarding a significant and recurring issue within commercial contract law: efforts clauses. Many practitioners perceive efforts clauses as operating on a sliding scale, with “best efforts” imposing more burdensome obligations than “reasonable efforts,” for example. The majority of American courts, however, reject this hierarchical notion. Reasoning on both a

Half a century of state-level restrictions on abortion access might cause a casual observer to conclude that state governments have a long-standing commitment to protecting fetal life. And yet, over the last several decades, state governments and local law enforcement are increasingly taking steps that actively undermine fetal health. Through the passage of state fetal endangerment laws and the prosecution

Input from affected communities is an essential component of the reform process aimed at remedying unconstitutional police practices. Yet, no court has ever granted a community organization’s motion to intervene as a matter of right in police reform, consent decree cases initi-ated by the Department of Justice. Judicial opinions in those cases have truncated the Federal Civil Rule 24 analysis when

The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, and offensive but not legally actionable behavior. This objection is often accompanied by criticism of #MeToo’s failure to adhere to the legal paradigms that inform sexual assault and harassment, presumably setting back the efforts to advance them. Finally, the #MeToo movement is often faulted for its failure

Many presidents have been interested in asserting authority over in-dependent regulatory agencies such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of

This Note presents an original argument regarding a significant and recurring issue within commercial contract law: efforts clauses. Many practitioners perceive efforts clauses as operating on a sliding scale, with “best efforts” imposing more burdensome obligations than “reasonable efforts,” for example. The majority of American courts, however, reject this hierarchical notion. Reasoning on both a