Children differ from adults in their biological brain development, rehabilitation capacity, and moral culpability, yet the United States' criminal justice system frequently disregards these distinctions by mandating the transfer of juvenile offenders to the adult criminal system. Despite the juvenile system's stated commitment to acting in the best interests of the child, mandatory transfer provisions subject juveniles to adult punishment schemes without individualized consideration of culpability, rehabilitative potential, or the detrimental effects adult punishment will have. In trying to answer the questions, "why do we punish?" and "what should that punishment be?" criminal law has come to recognize four goals of punishment: retribution, incapacitation, deterrence, and rehabilitation. This Note argues that using mandatory waiver provisions to transfer juveniles to the adult criminal system is unjustified under each of these goals. Drawing on developmental science and moral theory, it demonstrates that juveniles subject to mandatory transfers possess diminished moral reasoning and incomplete brain development, will suffer harsher effects from the adult criminal system, and their heightened capacity for rehabilitation is ignored, rendering adult criminal punishment disproportionate and ineffective. After tracing the historical and philosophical foundations of the American juvenile justice system, this Note examines contemporary transfer mechanisms, distinguishing between mandatory and discretionary transfer provisions. It then compares the current transfer frameworks of Mississippi, Oregon, Connecticut, and Michigan to illustrate ways in which mandatory transfer policies are used in jurisdictions. Ultimately, this Note argues that mandatory juvenile transfer statutes should be abolished nationwide. It further argues that discretionary transfers should be narrowly limited to exceptional circumstances and conditioned on a mandatory psychological evaluation to ensure that transfer decisions reflect the critical differences between juveniles and adults.
Recently, the U.S. Supreme Court grappled with an issue of first impression in this country, but one familiar to other jurisdictions around the world that is, whether a former head of state should be immune from prosecution for his criminal acts while in office. Those who argue in favor of criminal accountability, at home and abroad, often trumpet the democratic benefits ofpunishing state officials. Their reasoning has been consecrated in law, finding its way into judicial decisions that overturn amnesty laws. But is there any evidence to support the central claim on offer that punishment leads to a more democratic future? Using empirical evidence from other countries that have prosecuted state officials for their crimes over the last three decades, this study sheds light on the possible effects of these prosecutions on democratic institutions and behaviors. First, it examines an in-depth case study of Guatemala, a country where this issue recently came to the fore, to develop a set of hypotheses about the democratic effects ofpunishing state officials. To determine whether the lessons gleaned from Guatemala are generalizable, it tests these hypotheses using the most extensive global data set ofprosecu-tions of government officials in domestic courts, which specifically focuses on human rights prosecutions. Interestingly, the findings reveal a paradox. While criminal prosecutions of state officials for human rights violations are associated with some positive outcomes, like increased civil society activism and pro-democratic mobilization, they are also associated with greater political polarization and anti-system backlash. By contrast, they appear to have little effect on democratic institutions. Considering these data, a central takeaway is that the democratic effect ofprosecuting political leaders tends to rest with the people. Whether punishing them helps to ensure a more democratic future depends more on how the populace responds-negatively or positively- than on the limited institutional effects resulting from punishment.
Most legal scholars know about criminal provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), but fewer know about its civil counterpart. Civil RICO is an important avenue in which plaintiffs may obtain treble damages when injured by corrupt racketeering activity. A plaintiff's judicial success depends upon whether their claim satisfies requisite statute of limitations thresholds. While the Supreme Court defined a four-year statute of limitations rule under civil RICO, federal courts have yet to reach a consensus regarding when the statute of limitations begins to accrue. The Supreme Court has explicitly rejected several accrual rules, including the "last predicate rule" and the "injury pattern and discovery rule."Most circuits have implemented the "injury discovery rule," which provides that the statute of limitations starts when a plaintiff knew or should have known of their injury. Justice Antonin Scalia, however, voiced his support for the "Clayton Act rule," wherein the statute of limitations accrues whether or not the plaintiff knows of the injury at issue. This Note argues in support of adopting the Clayton Act rule. The Clayton Act rule reflects congressional intent to treat racketeering and antitrust laws similarly. The Clayton Act rule also exhibits fewer flaws outlined by the Supreme Court in rejecting the last predicate rule and the injury pattern and discovery rule. Importantly, the Clayton Act rule aligns with and advances RICO's goals of promoting efficiency and fairness. As such, the Supreme Court should expressly recognize the Clayton Act rule. Lower courts should look to prior Clayton Act and RICO cases for guidance and remain committed to furthering RICO's aims.
The United States of America's adversarial immigration court system adultifies children. Approximately one million children in immigration court must navigate notoriously complex proceedings while being held to virtually the same standards and procedures as adults. Children-even infants-are expected to respond to the charges against them, present and rebut evidence, make legal arguments, and pursue their claims for legal relief, all without appointed counsel. As a result, most are unrepresented and predictably unsuccessful in their fight against deportation. The challenges these children face are compounded by issues of race, ethnicity, class, language, trauma, dependency on adults, and other factors that limit the children's resources and increase their vulnerabilities. Despite this, lawmakers and judges so far have been unwilling to extend special protections to children in immigration court. But children are not simply miniature adults. Recent advances in our understanding of child development and brain science reveal that children are different from adults in ways highly relevant to legal proceedings. Our immigration court system must change to reflect these new insights. This Article is the first to marshal current scientific findings regarding the cognitive, developmental, emotional, and social immaturity of children to argue children are developmentally incompetent to represent themselves in immigration court. This Article establishes that it is unfair to nominally provide children with the same rights and responsibilities as adults without considering their ability to meaningfully effectuate them. Brain and behavioral science can and should be used in the immigration context, much like their present use in the juvenile delinquency and juvenile sentencing context, to compel appointed counsel and other accommodations like child advocates and specialized juvenile dockets. Applying a developmental lens to the treatment of children in removal proceedings exposes how structural inequities baked into the immigration court system uniquely harm children, thereby unlocking new insights and strategies for advocates and policy makers to create a fairer immigration court system for children.
Today, crime, especially that involving gun violence, is often regarded as a contagious disease. Among public health actors, the recognition inspires efforts directed at prevention and cure. Police, especially in poor, crime-plagued, racially segregated communities, also regard crime as a contagion. They, however, respond in a very different manner-with punishment and stigmatization. In so doing, they effectively engage in a form of "healthwashing" and create a new public health problem: themselves. This Article surveys how what I term "contagion policing" manifests, identifies the many serious harms it causes, and offers a new policing model dedicated to achieving positive outcomes in both public safety and public health. To achieve change, both the mien and minds of police must be transformed-from the current warrior mentality to one where they see themselves, and they are seen as, guardians of both public health and public safety. A large literature demonstrates that preventive interventions produce significant decreases in crime and promote community well-being. These findings should be deployed to inform new policing tactics and strategies. With violent crime especially, intervention is needed-to hold individuals accountable, prevent future harm, and signal to the community that the behavior will not be tolerated. Police, in short, can be guardians of community health yet still invoke the coercive force of the state when circumstances require. To ensure success of the model, a new way of assessing police effectiveness is needed. Police performance should no longer be measured solely in terms of crime control metrics but rather be tied to both improved public safety and public health outcomes. For instance, even if resorting to high-intensity arrests for minor offenses reduces crime to a degree, evaluation should take into account the significant harms the tactic causes individuals and the communities in which they live. Importantly, moreover, metrics of success should be informed by the views of community members and key stakeholders, such as clergy and businesses, who for too long have been excluded from the goals and practices of police.
This Article is the first to identify the Roberts Court's pattern of stealth overruling of several takings precedents by neutralizing or ignoring essential language from prior decisions. The Article explores six examples of this phenomenon and proposes a framework for identifying when a subsequent Court's critical assessment of key language from a prior decision, whether it technically qualifies as a "holding" or not, necessitates consideration of the stare decisis factors used in Dobbs v. Jackson Women's Health Organization. Rather than focusing on the sometimes-arbitrary distinction between holding and dictum, the Article introduces two other indicia of precedential language that warrant a robust stare decisis consideration a la Dobbs. First, the targeted language may be a cornerstone, that is, the foundation for a significant body of subsequent state and federal case law. Second, the passage in question may constitute a keystone, that is, language that was critical to the formation of a majority opinion or without which the opinion no longer makes sense. Litigators and their allies can mine several sources to identify cornerstones and keystones, allowing them to argue convincingly that the Court's attempt to ignore or abandon precedential principles warrants a full stare decisis analysis: state and federal cases, public papers of Supreme Court Justices, oral arguments, and party and amicus briefs. Relying on dozens of takings cases and snippets from the public papers of Justices Blackmun, O'Connor, Powell, and Stevens (reproduced here), the Article demonstrates how the Roberts Court has already overruled by stealth six essential principles of takings jurisprudence. While scholars, judges, and advocates have fixated on the Court's head-on confrontation with Chevron deference in Loper Bright, the Roberts Court has been issuing perturbing decisions with even greater implications for the future of the regulatory state. Flying under the radar, the Court has followed a path that, if continued, could result in the gradual dismantling of police power and other regulations at all levels of government.
Typography plays a central role in modern branding and digital communication, yet U.S. intellectual property law governs typefaces and fonts through a fragmented and outdated framework. While copyright law protects font software as computer code, it denies protection to the underlying typeface design and treats them as purely functional, leading to increasingly aggressive font licensing disputes. This Note examines how the current law fails to account for the dual artistic and functional nature of typefaces, leaving users unprotected while enabling ambiguous licensing regimes and opportunistic typeface trolling. Through an analysis of copyright jurisprudence, separability doctrine, and real-world licensing litigation, this Note emphasizes practical consequences of these doctrinal shortcomings for designers, businesses, and consumers. Rather than proposing a single doctrinal overhaul, this Note advances a set ofpragmatic reforms: reconsidering the role offunctionality in typeface protection, strengthening alternative intellectual property mechanisms, encouraging proactive licensing compliance, and standardizing damages to reduce abusive litigation.
Custodial interrogations often lay the foundation for the criminal charges brought against suspects. They can also signal to officers of the law whether an investigation should be narrowed, broadened, or shifted elsewhere. Suspects generally retain the discretion to waive their right to counsel and speak to police outside of the presence of an attorney during these interrogations, subject to a knowing, intelligent, and voluntary waiver. But what if the suspect is a minor? The current law in Illinois, as part of the Juvenile Court Act of 1987, is that statements made by minors during custodial interrogations without counsel present are presumed inadmissible and the burden is on the prosecution to show that the statement was voluntary and is reliable based on the totality of the circumstances. A bill filed in the Illinois Senate in 2024 tried to change this rule. Under Senate Bill 3321 ("SB 3321"), minors arrested in connection with a criminal offense in Illinois would be completely prohibited from waiving their right to counsel to speak with police during custodial interrogations. This Note argues that SB 3321 should never become the law in Illinois and that comparable legislation should not be adopted in other states. Blanket prohibitions of a minor's ability to waive counsel fail to reflect the wide range of adolescent maturity levels, put pressure on the already excessive caseloads of appointed defense attorneys, and frustrate the work of law enforcement among rising levels of juvenile homicide and gun violence. This Note recommends that instead, states should continue to adopt procedures to ensure waiver validity.
In recent years, questions about who is eligible to compete on female high school and college sports teams has gained increasing attention based on three specific events: the inclusion of Lia Thomas, a transgender woman at the University of Pennsylvania, on her school's women's swim team; the inclusion of Blaire Fleming, a transgender woman at San Jose State University, on her school's women's volleyball team; and the inclusion of Becky Pepper-Jackson, a transgender girl from West Virginia, on her school's girls' track and cross country teams. On January 3, 2025, these questions about transgender inclusion in sex-segregated sports became even more germane when Florida Congressperson W. Gregory Steube introduced into Congress a bill entitled as the Protection of Women and Girls in Sports Act, which, if signed into law, would amend Title IX of the Patsy T. Mink Equal Opportunity in Education Act to provide that, for purposes of determining Title IX compliance, sex shall be defined "solely on a person's reproductive biology and genetics at birth."(1) While much of the Congressional debate about transgender inclusion in sex-segregated sports has involved political posturing, this Article, to the best of our abilities, attempts to explore the complex question of transgender inclusion in girls' and women's sports in a legal and more socially responsible manner. This Article begins by exploring the history of sex segregation in U.S. sports, as well as the history of early transgender athletes who have sought to compete on women's sports teams. The Article then proceeds to discuss statutory construction of Title IX of the Patsy T. Mink Equal Opportunity in Education Act, including the possible meanings of the word "sex" as it appears in that act. Part IV addresses reasonable considerations for Congress to address when amending Title IX to account for issues related to transgender inclusion in sex-segregated sports. Finally, Part V explains why Congress's proposed Protection of Women and Girls in Sports Act does not adequately address the policy concerns that call for reviewing and amending Title IX.
Green bonds are issued with the stated intention of using the proceeds for green purposes. This Article is the first in-depth analysis of contractual rights to enforce performance of that intention. Perhaps surprisingly, U.S. corporate green bonds do not appear to grant investors any such rights. The Article proposes a combination of two complementary contract rights that would be triggered by green nonperformance: a "green put" that would allow investors to sell their bonds back to the issuer and a "step-up" that would increase the amount of coupon or principal that investors could collect. The Article demonstrates, drawing on analysis of holder data from Bloomberg, that green bonds likely attract both investors motivated by the bonds' green nature and traditional investors who buy the bonds primarily for financial reasons. The remedies the Article proposes target these two constituencies. Green-minded investors for whom it is important to provide capital only for green projects may want to exit their investment and withdraw capital from the issuer if it does not follow through. The put should be attractive to them. By contrast, investors with traditional financial objectives may prefer compensation for financial loss over exit. Insofar as green nonperformance may signal increased financial risk, such loss is plausible. The step-up provides an approximate remedy for that loss and, incidentally, acts as an issuer commitment device that reduces the likelihood of green nonperformance. The Article's proposal has advantages over simply making green nonperformance an event of default that could trigger acceleration. Different green-bond constituencies likely would disagree in many cases over whether to accelerate. Perhaps more importantly, issuers resist adding a green event of default because it could trigger cross-default clauses. As individually enforceable, non-default remedies, the put and step-up avoid these problems. Contract remedies protect green-bond investors. They also help enhance the credibility of green bonds, which currently do not command a "greenium," or premium over non-green bonds. Remedies could help induce a greenium, which would allow green bonds to attract additional capital for green transition and fulfill their purpose.
The metaverse is a new technology that allows people to play games, shop, and conduct business virtually. Corporations have been spending millions of dollars on virtual real estate in the metaverse, which they use to conduct business and advertise their products. But with the advent of this new technology, it is unclear what type of law governs virtual real estate transfers. The legal community has suggested that either contract law, traditional property law, or intellectual property law governs virtual real estate transfers. This Note proposes that all three of these legal areas play their part, and none should be used to the exclusion of any other. Additionally, this Note proposes a digital registry that can be used to keep public records of virtual land transfers, which will give virtual landowners evidence to back up their ownership claims. Furthermore, this Note examines the current jurisdictional tests used by courts to resolve Internet disputes and proposes a new test that factors in the broad nature of the metaverse and thus is better suited to handle metaverse legal disputes.
This Article sheds light on a pervasive phenomenon. In a variety of contexts, third parties provide information about tax law to taxpayers. The information provided by these third parties may guide the tax planning and compliance decisions of taxpayers, some of whom may act upon the information without seeking advice from a tax professional. In some cases, the information is accurate and potentially helpful. In other cases, it is inaccurate and potentially misleading. This Article describes concrete examples of real estate companies and home mortgage lenders providing information about the tax consequences of home ownership; car companies delivering information about tax credits available to purchasers of electric and hybrid vehicles; sellers of other products dispensing information about associated tax credits; drugstores and other sellers of health products distributing information about health flexible spending accounts; student loan providers broadcasting information about the deduction for student loan interest; debt collectors describing to debtors the tax consequences of nonpayment; employers, schools, and pediatricians providing information about potential benefits of tax filing; and more. The collection of examples is based, in part, on information gleaned from an examination of websites of leading companies in various industries. Some of the examples are taken from cases involving contract law or consumer protection law. This Article discusses several important implications that follow from an examination of these examples. First, in many cases, third parties transmit information contained in informal IRS guidance. As a result, for better or for worse, they magnify the impact of informal IRS guidance, which underscores the need to ensure that informal IRS guidance does not steer taxpayers in the wrong direction. Second, many of the examples entail information that is, in substance, less accurate for taxpayers with lower incomes, which has troubling equity implications. Third, an examination of the examples suggests the need for an evaluation of existing legal doctrine. Fourth, some of the examples represent topics that the IRS could discuss when alerting taxpayers to tax misinformation. Finally, some modifications to existing law could amplify the positive impact of helpful information.
Most business bankruptcies are filed by small businesses. But until Congress enacted subchapter V in 2019, the costs associated with reorganizing in chapter11 precluded many small businesses from reorganizing and left them with no choice but to close their doors forever. Subchapter V changed that by modifying or eliminating the barriers standing between small business debtors and chapter11 reorganization, allowing small businesses to continue operating while they restructure their financial affairs for the benefit of their creditors, owners, and communities. Like in traditional chapter 11, in subchapter V, a small business debtor's plan of reorganization may be confirmed nonconsensually over the objections of its creditors. After a small business debtor confirms a nonconsensual plan and completes all payments due under that plan, it is eligible to discharge-or wipe out-its pre-confirmation debts. If a subchapter V debtor's plan is confirmed nonconsensually, its discharge is governed by 11 U.S.C. 1192. As small business debtors have increasingly elected to proceed under subchapter V and confirmed nonconsensual plans, competing views have emerged among the federal courts surrounding how to interpret 1192. Section 1192 provides that "the court shall grant the debtor a discharge of all debts . . . except any debt . . . of the kind specified in section 523(a) of this title." Section 523(a)-the provision cross-referenced in 1192-pro-vides a list of exceptions to discharge. Sitting atop the list of exceptions is 523(a)'s preamble, which provides that "[a] discharge under . . . section . . . 1192 . . . of this title does not discharge an individual debtor from" any of the excepted debts listed beneath it. Some courts, including a majority of the bankruptcy courts that have confronted this issue and the Ninth Circuit Bankruptcy Appellate Panel, have held that 523(a) does not apply to corporate small business debtors receiving a discharge under 1192. Other courts, including the Fourth, Fifth, and Eleventh Circuits, have reached the opposite conclusion-that the 523(a) discharge exceptions apply to both individual and corporate debtors receiving a discharge under 1192. This Note surveys decisions on both sides of this controversy, analyzes their reasoning, and engages in a statutory construction of its own. This Note builds upon the reasoning of the majority of bankruptcy courts and the Ninth Circuit Bankruptcy Appellate Panel to conclude that the 523(a) discharge exceptions do not apply to corporate small business debtors.
Celebrities wield immense influence in modern society and sometimes harness that power to endorse questionable products and services to consumers. This practice has sparked widespread controversies recently whenever celebrities have endorsed fraudulent and/or destructive enterprises, such as the Fyre Festival, FTX cryptocurrency exchange, and JUUL e-cigarettes. Despite the far-reaching consequences for consumers and society of such endorsements, current legal frameworks largely shield celebrity endorsers from liability. This Article defines this pressing phenomenon as "unjust endorsement"-celebrities exploiting their fame, influence, and super-spreading power (especially through social networks) to promote dubious and/or defective goods with legal impunity. It reveals the distorted law and economics of celebrity endorsements and exposes their grave psychosocial implications, especially when targeted at vulnerable consumer populations such as children and adolescents. After examining the inadequacies of preexisting liability mechanisms, this Article proposes a novel policy approach to curbing unjust endorsement based on the law of unjust enrichment. Building on interdisciplinary scholarship in psychology, communications, and cultural studies, this Article proposes that celebrities' enrichment from promoting dubious or defective goods and services should be considered "unjust" and subject to disgorgement. Consumers influenced by celebrities' misrepresentations (however innocent) should benefit from these gains, especially in cases where the primary offenders-advertising brands-are insolvent or otherwise judgment-proof. This Article proposes a disgorgement-based remedy that is fair, efficient, and finely and equitably balances the interests of consumers with other social principles, such as those of caveat emptor and free speech.
Food insecurity affects millions of Americans each year, yet no uniform solution exists for addressing its root causes. Racial, economic, and geographic disparities combine with inadequate federal food programs, grocery industry consolidation, and food price volatility to leave vulnerable households without reliable access to nutritious food. This Note examines these overlapping challenges, analyzing the shortcomings of current safety-net programs and federal merger guidelines while highlighting how consolidation and volatility worsen inequities in food access. It then proposes reforms to strengthen and expand federal food assistance, reinvigorate antitrust enforcement, incentivize shorter and more sustainable food supply chains, and empower community-based initiatives. While no single solution can eliminate food insecurity, this framework offers a path for governments, private actors, and communities to work together toward more equitable food access.
This Article tells the story of the birth of predictive algorithms in criminal justice. Known as risk assessments, these tools are widely used today to make decisions about bail, sentencing, and parole. Their roots trace back to the 1920s, when statistical prediction tools were first proposed for use in criminal justice decision-making. In this Article, we show that risk assessment found its origins in the ideas of eugenic criminology: namely, that crime is mostly caused by an inferior subclass of humanity, tainted from birth. Risk assessment was conceptualized as a way of sorting between the "normals" who were amenable to reform and the "sub-normals" who, due to their inferior genes, were not. Such "born criminals" were seen as requiring indefinite confinement within isolated penal colonies in order to protect society from crime, prevent procreation, and provide care for those in need of paternalistic guidance. We tell this story in part because it is a fascinating piece of history, marked by bigotry, bravado, and an almost fanatical optimism about mankind's ability to engineer a perfect society. But we also tell it because the ideas and practices of eugenic criminology are not widely known. While "tainted origins" do not automatically condemn the ongoing use of risk assessment, understanding history can help identify ways that the past lives on in the present.
Public discourse about criminal punishment routinely centers on the sentences judges publicly impose in court. Yet, in most American jurisdictions, the sentence publicly imposed bears little resemblance to the term of imprisonment an offender will actually serve. Through statutory analysis and sentencing and release data, this Article demonstrates that in all but a handful of states, legislatively authorized sentence discounts-often exceeding fifty percent and in many cases reaching seventy-five percent or more-systematically distort the meaning of the announced sentences, even when those sentences are characterized as "minimum" terms. These discounts are also not confined to minor offenses. States routinely apply them to serious violent crimes, including rape, aggravated assault, robbery, and murder. The Article argues that this gap between announced sentences and actual time served is not accidental but institutionalized. As Part II details, this institutionalized deception allows states to project a strong deterrent threat and to limit the costs of incarceration. Both Republican-and Democratic-controlled states have embraced this practice for financial or ideological reasons. Part III contends, however, that this system of sentencing deception carries substantial social costs. Because most crimes are committed by repeat offenders, the deterrent effect of inflated sentences is largely illusory. More damaging is the erosion of the criminal justice system's credibility once the public recognizes that announced sentences do not mean what they appear to mean. As institutional trust declines, so too does the system's normative authority to secure people's assistance, cooperation, acquiescence, and compliance, as well as its ability to induce people to internalize its norms. These concerns help explain the "truth in sentencing" movement examined in Part IV, including the federal Sentencing Reform Act of 1984, which requires offenders to serve at least 85% of their imposed sentences- though few states have followed suit. The Article does not at all argue for longer prison terms but rather for greater transparency. Whatever imprisonment policies states choose, they should accurately disclose at sentencing how offenders will be punished. Greater transparency would mitigate the harms of institutionalized deception and enable more rational and informed criminal justice policy-making.
In Alexander v. South Carolina State Conference of the NAACP, the United States Supreme Court reversed a district court ruling that a South Carolina congressional district was an unconstitutional racial gerrymander. From the perspectives of constitutional law, election law, and politics, the decision was notable for several important reasons and the decision will no doubt prompt scholarly discussion in these areas. Alexander, however, was also a case about evidence, evidence law, and legal proof. The case turned on whether the district court's factual finding that the plaintiffs had met their burden of proof was "clearly erroneous." When viewed from the perspective of evidence law and legal proof, the decision is both surprising and problematic. It is surprising because the majority opinion mistakes the substantive legal standard for the evidentiary standard of proof (a mistake not called out by an otherwise detailed dissent). It is problematic because, in doing so, the majority opinion also appears to raise the standard of proof from "preponderance of the evidence" to something like "clear and convincing evidence," without explicitly justifying that policy choice. If this reading of Alexander is correct, several implications follow. First, the analysis clarifies aspects of the doctrine that are otherwise confusing or obscure-most importantly, the presumption of good faith by the legislature and the evidentiary significance of alternative legislative maps. As will be illustrated, the standard of proof gives content to these aspects. Second, the analysis best explains the disagreements between the majority and the dissent about the evidence in the case and the application of the "clear error" standard. Third, and most importantly, the analysis makes explicit an issue on which future cases will depend. As a matter of procedural due process, heightened standards of proof require explicit justification-something missing in Alexander. Going forward, this justification must either be provided or Alexander's mistake corrected. The viability of future racial-gerrymandering cases may turn on this choice.
The state and local tax ("SALT") deduction remains one of the most hotly contested issues in federal tax policy. Much of the SALT debate has been driven by politics rather than empirical analysis, leaving key questions about the deduction's true impact unresolved. This Article moves beyond partisan narratives to provide a clearer picture of who truly gains from the SALT deduction and who bears the cost of its limitation. While the SALT deduction is often characterized as a subsidy for blue states, the reality of where the benefits flow is more complex than the straightforward red state versus blue state distinction. Nearly half of the deduction value comes from local taxes, yet the local-level portion of the SALT deduction has received little attention. In the local portion of the SALT deduction, however, lie unique inequality dynamics that should be considered as part of any debate about the future of the deduction. This Article uses a novel dataset to provide the first empirical analysis of the local portion of the SALT deduction across several states. The analysis systematically quantifies the extent to which localities benefit from the SALT deduction. Our findings reveal that the primary beneficiaries of the local portion of the SALT deduction are localities with high home values, low poverty rates, and relatively homogeneous, affluent populations-raising critical questions about the deduction's role in rewarding economic segregation. As Congress, states, and localities grapple with the place the SALT deduction should play in our nation's tax regime, this Article provides a necessary, data-driven perspective to inform the debate. By moving beyond political rhetoric and offering a fact-based analysis, this study equips policymakers with the tools needed to craft sensible laws grounded in empirical evidence and sound tax policy.
