Two potential solutions that have been proposed for addressing the fiscal disparity among states are (1) following the lead of other federal nations and adopting a system of interstate fiscal equalization or (2) ending federalism and fully nationalizing key programs. As I will discuss, neither of these polar solutions is feasible or desirable. Instead, drawing on…

The epidemic of PSV [police sexual violence], both in scale and in concept, is startlingly underanalyzed. Sexual assaults committed by police against members of the public operate at the intersection of two vital national conversations about police brutality and sexual violence and harassment…

In articulating a new explanation of Powell’s motives in Bakke, this Article not only calls into question the prevailing understanding that Powell was motivated by his commitment to racial justice, it also complicates a more critical view of the diversity rationale that locates the Court’s endorsement of “the educational benefits of diversity” in a recognition that exposure to racial minorities confers…

Rather than continue this pattern of punishing veterans for having mental health conditions—commander kicks them out and the discharge review board kicks them again—veterans deserve the opportunity for true relief in recognition of their service and the mental health condition they developed due to that service…

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception. Scholarship and public debate about law’s role in protecting health care providers’ conscience rights…

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars…

Corporations have something to say about some of the most important social and economic issues of our time—and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies comprising what we call “shadow governance.” These non-charter, non-bylaw governance documents express a corporation’s commitment to and process…

When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual…

In the fall of 1964, my uncle John Robinson Wilkins joined the Berkeley Law School faculty. He was the first black professor in the school’s illustrious history and only the second in the entire UC Berkeley system. Tragically, my uncle’s time on the Berkeley faculty would be short. In 1970, he was diagnosed with an…

Part I of this Article discusses the problems circuit splits pose and how the circuit courts’ growing caseloads, combined with the Supreme Court’s shrinking docket, are perpetuating the potential for increasing circuit splits. Part II discusses the informal en banc procedures currently in place in the courts of appeals. Part III provides an overview of…

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. This article first considers whether the problems Menell and Vacca describe on the civil side afflict criminal litigation to the same extent. On the assumption that the problems in…

Like other supervisory lawyers, federal judges have twin responsibilities. They must comport with ethical and professional rules that govern their own behavior while simultaneously monitoring other attorneys to ensure they are not violating similarly controlling rules. The judicial robe, however, adds an extra dimension of responsibility in the trial oversight process…

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid-1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity…

On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered…

A growing set of social movements has in recent years revived interest in “community control,” the idea that local residents should exercise power over services like the police, infrastructure, and schools. These range from a call from the Partnership for Working Families, a grassroots coalition, to build community control through the direct democratic governance of…

Diverse areas of law regulate acts of rescue, often inconsistently. For example, maritime law mandates rescue, immigrant harboring law prohibits it, and tort law generally permits it but does not require it. Modern legal scholarship has focused principally on mandatory and permissive forms of rescue. With humanitarian actors facing prosecution for saving migrants’ lives in…

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong. When it comes to Indian affairs, the Constitution is not colorblind…

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process—from policing to pretrial detention, sentencing, corrections, and parole. As efforts to reduce mass incarceration have led to the adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid, and…

What is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts—like domestic violence, sexual assault, labor exploitation, and prostitution—with which it often overlaps? These questions have become increasingly salient after the U.S. Congress defined the crime of human trafficking in the Victims of Trafficking and…

City governments were an important source of environmental protection in the United States from the 1800s until well into the 1900s. However, since Congress passed a series of landmark environmental statutes in the 1970s, scholars have primarily equated environmental law with federal law. To the extent that scholars consider subnational sources of environmental law, they…