Prisoners love to file habeas petitions. Maybe a little too much. That is why Congress drafted the federal habeas statutes to preclude prisoners from filing “second or successive” petitions attacking their judgments. But in drafting those statutes, Congress left open a loophole: if a prisoner secures some change to his judgment that makes that…

The Constitution protects us from criminal conviction unless the government can prove guilt beyond a reasonable doubt. However, this high burden is only as formidable as the words used to describe it to the jury. And many courts describe it in ways that lower, and sometimes even shift, the burden of proof.

Behavioral ethics, the study of how and why people make ethical and unethical decisions, has come into its own. Following a meteoric rise over the last decade, the discipline has grown to occupy a distinct space within business ethics. What sets it apart is a focus not on the normative question of how individuals should act when facing ethical business quandaries ”the province of moral…

Stop. Look at your phone. When was the last time it notified you about anything? How many times a day does it send you a notification? Did you intend to give your location to your service provider each time you heard a beep or felt a vibration? Well, regardless of whether you voluntarily offered up that information, they have it, and until modern precedent matches today’s…

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation”””one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on…

The Supreme Court addressed the scope of the Second Amendment in a pair of opinions, Heller and McDonald, that moved the nexus of judicial review away from antiquated notions of an arm’s reasonable relation to the militia towards a modernized conception of an arm’s relationship to the individual right of self-defense. The opinions, though steeped deeply in historical…

This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to…

Building on a recent review essay by Michael Morris, Delgado and Stefancic show how conservative strategists marshal regional animus against Latinos to improve GOP electoral prospects and set one minority group against another to the detriment of both.

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for…

This essay responds to The Sex Bureaucracy, in which Jacob Gersen and Jeannie Suk condemn regulations of sexual conduct they see metastasizing on college campuses, pursuant to Title IX’s mandate for equal educational opportunities in institutions receiving federal funds. We focus on the authors’ most trenchant critique, which slams efforts to teach sexual health principles…

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances. This essay considers the distinct ways in which the civil rights and social movements for…

The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist…

This essay critically assesses Justice Kennedy’s opinion in Obergefell v. Hodges, which declared unconstitutional state laws and constitutional provisions barring same-sex couples from lawfully marrying in the state or having their lawful out-of-state marriages recognized by the state. While acknowledging the important role that Justice Kennedy has played in advancing the cause of gay…

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt…

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times””to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect…

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the…

The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. The DOJ built its argument on conflicted case law governing immigrants’ constitutional rights. This Essay argues that, contrary to the DOJ position, all people in…

This essay renews the debate on the relevance of a literary sensibility to legal practice. Instrumental modalities of legal reasoning inform – and limit – what may count as legal facts. I reference the pattern of high-profile cases at the intersection of race and law enforcement to argue that the strategic description of setting in…

This essay, written as a response to Ryan Calo’s valuable discussion in “Robotics and the Lessons of Cyberlaw,” describes key problems that robotics and artificial intelligence (AI) agents present for law. The first problem is how to distribute rights and responsibilities among human beings when non-human agents create benefits like artistic works or cause harms…

This essay examines how the Fifth Amendment Self-Incrimination Clause applies to encrypted data. In particular, it focuses on the Clause’s foregone conclusion exception, which allows the government to compel the production of information where the government reasonably knows that information exists. This essay argues that, under this exception, the government can compel a person to…