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.

In a conversation with members of the California Law Review recorded in April 2017, Charles Robinson, General Counsel of the University of California, discussed the university’s approach to free speech on campus. A glance at recent headlines from outlets ranging from the San Francisco Chronicle to TIME to Fox News show a wide range of…

Although the political branches have broad authority over immigration, they are still subject to constitutional limits. Thus, courts have routinely reviewed and curtailed immigration policies when they do not adequately protect the rights of noncitizens. In Castro v. Department of Homeland Security, the Third Circuit refused to conduct such a review by…

During the Great Recession, as public outcry grew against unions and public employee pensions, the “California Rule” for public employee pensions came under attack. Under the California Rule, a pension statute forms a contract between the state and its employees on the employee’s first day of work, and safeguards past and future pension…

With Neil Gorsuch recently confirmed to the Supreme Court, this is a good opportunity to make some predictions about how Justice Gorsuch is likely to impact bankruptcy law. Why should we care about bankruptcy law in particular? First, as I explain in a forthcoming law review article, bankruptcy law is one of…

From 1987 to 2008, an armed conflict seized Northern Uganda, as the Lord’s Resistance Army (LRA) challenged the Ugandan government in a contest that resulted in more than 100,000 dead and over 1.9 million people displaced. Since then, both the Ugandan government and the international community have invested significant effort in apprehending LRA leaders for prosecution…

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…

Lying somewhere in the murky waters of constitutionality, the independent government agency has risen in the last century to be a favored tool of Congress to address complex policy issues. For instance, following the 2008 financial crisis, the Dodd-Frank Act established the Consumer Financial Protection Bureau (CFPB), an independent government agency that centralized oversight of…

The following (fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia is designed to highlight one particularly interesting issue raised by Solon Barocas and Andrew Selbst in Big Data’s Disparate Impact. Their article discusses many ways in which data-intensive algorithmic methods can go wrong when they are used to make employment and other sensitive…

Do voters have a First Amendment right to take ballot selfies? In the 2016 presidential election, it was illegal in eighteen states for voters to take photos with their completed ballots. Some of these laws are over 100 years old. In this post, I consider the state of the law regarding prohibitions on ballot selfies and how the Supreme Court might evaluate pending challenges to them…

In his first months in office, President Donald Trump has used executive action in a multitude of policy areas. He instituted a ban on entry into the United States from seven Muslim-majority countries for ninety days, elevated his chief political strategist to the National Security Council, and fast-tracked the construction of the Keystone XL Pipeline. Although President Trump’s pace of…

Soon, we may be living in “a world without Chevron.“ If confirmed for the Supreme Court, Judge Neil Gorsuch could spark a sea change in administrative law by overturning Chevron, the doctrine under which courts afford deference to an administrative agency’s reasonable interpretation of an ambiguous statute. Such a change would be ill-advised. Removing the power of agencies to interpret…

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…

In Forman v. Henkin, the First Appellate Division of the Supreme Court of New York clarified New York’s rules for social media discovery. The court held that if a party seeks to gain access to a private social media account as part of the discovery process, that party must first make a threshold showing of…