Indigent appellate advocacy has long been confined to a narrow, technocratic model—one that prioritizes legal expertise over client autonomy and treats appellate cases solely as isolated legal battles rather than opportunities for systemic change. Unlike their trial-level counterparts, appellate attorneys representing indigent clients have received little scholarly attention, leaving critical questions about client participation, ethical representation, and social justice largely unexplored. This Article challenges the status quo, arguing that appellate attorneys should rethink their role in ways that empower clients and confront the broader injustices shaping their cases. We introduce two alternative frameworks—client-centered appellate representation and participatory appellate representation—that draw on innovations from trial-level practice. Client-centered appellate representation encourages meaningful client communication, recognizes clients’ holistic goals, and solicits their input in decisionmaking. Participatory appellate representation adapts insights from the participatory defense movement and other social justice lawyering models, creating opportunities for appellate attorneys to work collaboratively not only with clients, but also with their families, communities, and grassroots organizations. These models respond to several pressing challenges in indigent appellate practice, including structural inequity, attorney burnout, and the erosion of trust between attorneys and clients. By adopting the models we describe and expanding beyond the four corners of the case, appellate attorneys can help both clients and communities challenge the systemic conditions fueling injustices in the legal system—broader goals that are particularly important in times of retrenchement. This Article also grapples with the challenges of client-centered and participatory representation, including limited resources, professional norms, and ethical dilemmas. But it contends that implementing these models—whether piecemeal or wholesale—at the appellate level is both feasible and just.
A debate has long raged concerning whether the contingency fee market for legal services is or is not competitive. The debate has been fierce because its stakes are sky high. If the market is competitive, current efforts to cut or cap contingency fees are clearly wrong-headed. If the opposite, then at least some efforts to address the market failure probably make sense. Leveraging the results of a novel empirical study and drawing from both classical and behavioral economics, this Article assembles the best evidence to date to resolve that age-old question. We find that, much like the market for brokerage services in residential real estate, the contingency fee market for personal injury (PI) representation is neither efficient nor competitive. The market for PI representation does not behave like a competitive market, and the preconditions for competition are lacking. Mirroring the brokerage market, fees are not salient to consumers of legal services, and stubborn informational asymmetries cloud consumer search. Even so, contingency fee caps-many reformers' reflexive fix-are not the answer. Price controls are generally harmful, and they are particularly counterproductive when deployed in this context. Rather than promoting access to legal services or reducing principal-agent problems, caps can be counted on to restrict access and skew attorney incentives. Perhaps worse, caps are regressive. Those who are already disadvantaged bear the brunt of this reform. We have a better idea. Because the problems we identify are chiefly traceable to inadequate information, policymakers ought to use "closing statements" to get proper information into consumers' hands.
This Article provides the first comprehensive critique of the structural inadequacies present in nearly every aspect of Fourth Amendment jurisprudence for the unhoused. Privacy conceptions excluding what one knowingly, if involuntarily, exposes to the public erases any meaningful privacy protections for the unsheltered and unhoused. Protections from unwarranted entries into the home apply with lesser force when that home is erected illegally on public property and thus is itself evidence of the crime. Searches incident to arrest subject many unhoused persons to suspicionless searches of their entire lives, far beyond the limited purposes of such searches. Malleable conceptions of probable cause and reasonable suspicion sweep in disproportionate swaths of the unhoused, as police interpret behavior indicative of mental distress or addiction as suspicious criminal activity. Violent encampment removal tactics do not constitute Fourth Amendment "seizures," as the word's definition excludes police violence designed to disperse people from an area. And increasingly common psychiatric hold procedures often fall within the amorphous "special needs" exception to the Fourth Amendment, if they fall within the Amendment's reach at all. In addition to cataloguing these comprehensive privacy and liberty failures, this Article articulates an independent Fourth Amendment right to human dignity, grounded in the purpose and meaning of the Amendment. In so doing, this right to dignity informs a reframing of Fourth Amendment rights to privacy and bodily integrity, supported by the logical framework of recent Supreme Court cases about electronic data. This reframing protects a zone of privacy for involuntarily exposed intimacies and singular sensitive spaces like makeshift dwellings, as well as a right to bodily integrity that includes freedom from violent dispersal techniques. This dignity-based reframing, while salient for the unhoused, has broader implications for all of society and its relationship to the Fourth Amendment. These issues require urgent attention. The United States recorded its largest ever unhoused population in 2024. Acute affordable housing shortages and climate-fueled natural disasters have exacerbated a decades-long unaddressed humanitarian crisis, straining resources in cities and rural areas alike. In response, state and local governments have pivoted to a more punitive approach to houselessness. Draconian "anti-camping" ordinances subject houseless people to fines or arrests while police destroy their property in encampment "sweeps," disconnecting the unhoused from critical social structures. Quality-of-life laws criminalize basic biological functions in public. New York, California, and other states have expanded the reach of involuntary civil commitment procedures, forcibly hospitalizing and medicating people who are not at serious risk of harm in an effort to "get them off the streets." And the Supreme Court's decision in City of Grants Pass v. Johnson has acted as an accelerant; over one hundred cities passed new antihouselessness laws in the first six months after the decision. Police crackdowns on the unhoused have become more common and visible, largely exempt from the restraints of the one constitutional provision designed to constrain such conduct: the Fourth Amendment.
A university may deny a disabled student's reasonable accommodation request if it decides that the accommodation would fundamentally alter its academic programs. In practice, the fundamental alteration defense works like a silver bullet. In evaluating the defense's application, courts defer to universities' judgments about what exactly is fundamental about their programs. This deference is a mistake, and one that has had wideranging consequences for generations of disabled students whose accommodation requests were denied. This Article describes how Wynne v. Tufts University School of Medicine, a First Circuit decision interpreting Section 504 of the Rehabilitation Act, invented a standard for reviewing how the fundamental alteration defense applies to requests for reasonable accommodation in higher education, and how that standard then became the leading approach. Wynne imported its problematically deferential standard from an unrelated and inapplicable body of law- qualified immunity. The result is a test that mistakenly grants super-deference to certain Section 504 and Americans with Disabilities Act (ADA) defendants in a way that the law does not permit. The Supreme Court has unequivocally held that ADA defendants do not receive special deference with respect to a court's determination of what aspects of their programs and services are fundamental. Yet for decades, Wynne has gone unquestioned, and its influence has only grown. It is now creeping into workplace discrimination cases, where it unjustifiably advantages employer-defendants. This Article is the first to contend that Wynne was wrongly decided. If courts recognize that Wynne is incorrect, more accommodations will be provided to the very students who need them-and as a result, those students will be more likely to stay in school, graduate, and have a chance at the self-fulfillment the ADA was intended to facilitate.
When weapons stamped "Made in the U.S.A." fall from the sky, it defines how ordinary people around the world experience American power. Accordingly, the authority to sell U.S.-made weapons has become one of the strongest tools of foreign policy. When used strategically, arms exports can strengthen our partners, advance national-security-interests, and evert dissuade allies from accumulating nuclear weapons, all without risking American lives. But today, where administrations routinely authorize large-scale weapons sales to address global security challenges, the downsides of the U.S. arms export regime have become impossible to ignore. Selling weapons to foreign countries risks entangling the U.S. in pro-tracted conflicts, arming repressive regimes, and fueling human rights abuses. Despite robust "End-Use" monitoring programs by the Executive Branch, once weapons leave U.S. soil, the realities of war make them nearly impossible to track, monitor, or rescind, as weapons are frequently retrans-ferred to third parties without authorization or are captured by unintended recipients, exposing U.S. technology to reverse-engineering by adversaries. Despite these risks, and more, FY2024 marked the highest year of military sales in U.S. history. The Constitution largely vests Congress with the authority over arms exports through its Article 1 Foreign Commerce Clause power. Out of recognition that arms exports implicate questions of foreign policy and national security. Congress delegated much of this authority to the Executive Branch, creating an arms export regime that balanced the strengths of both Branches. In practice, however, this shared authority has devolved into a "tug of war" for control, with Congressional over-sight steadily eroding since the 1980s. Today, the Executive Branch is generally free to authorize an arms sale unless Congress passeslegislation prohibiting or modifying it a power that Congress has never successfully asserted. This Note argues that the expansion of the U.S. arms export regime demands a fresh examination of the balance of power between the Legislative and Executive Branches. It proposes Congress re-wire the arms export approval process by adopting a "Joint Resolution of Approval" (JRA) mechanism, codified in the National Security Powers Act and the National Security Reforms and Accountability Act, which restores demo-cratic guardrails over this powerful foreign policy tool while respecting the Executive's authority to respond decisively to global security threats. This Note's solution does not seek to dismantle the arms export regime. On the contrary, it aims to bring greater transparency to the approval process and to outline actionable steps Americans can take when demanding account-ability from their elected officials, thereby restoring Congressional oversight over the Executive in this "tug of war." Drawing parallels from the 1970s antiwar movement and protests of the 2020s against arms exports, this Note contends that the political moment is ripe for reform. It further cautions that excluding the public from consequential foreign policy decisions altogether erodes trust in po-litical leadership and deteriorates the quality of a representative democ-racy; even perceived exclusion is dangerous. After all, while the tactics of warfare evolve in parallel to the advancements in technology and geo-politics of the day, one constant has always remained: Americans want a voice in shaping the meaning of U.S. leadership. Thus, Congressional input, regardless of its ultimate effect on a proposed sale, adds a discrete value to the arms export process. Restoring this lever of accountability over at least the riskiest weapons sales would realign the arms export re-gime with democratic principles just as the Constitution demands.
This Article focuses on the institutional design of American competition policy. It argues that any long-term effective revival of U.S. antitrust policy requires a better acknowledgement of the key and irreplaceable role played by private litigation and proposes a rethink of private antitrust enforcement policy. To unpack the nuanced interconnection between public and private competition enforcement, the Article begins by tracing the rise and fall of private antitrust. It builds on a novel, hand-coded, and comprehensive analysis of the entire Supreme Court antitrust track record-all 474 decisions over 130 years-to outline how an ideologically mixed coalition of anti-enforcement Justices seized on private cases to, in effect, reform U.S. competition policy at large. Indeed, almost all Supreme Court decisions that significantly changed U.S. antitrust laws after the mid-1970s were private litigation cases. Over time, a weakened competition policy led to more unchecked abuses of market power in the U.S. economy. A growing recognition of these abuses motivates current calls for an antitrust revival. Relying on insights from political economy, this Article then explores the root political causes of these changes at the Supreme Court level and the key role played by private plaintiffs in the enforcement ecosystem. Reformers face a challenge: Too little private litigation exposes competition policy to the risks of long-term political gaming-private parties exploiting the political system to their own advantage-while too much private litigation risks triggering the type of judicial antagonism that helped undermine the system over the past decades. The Article proposes the creation of "antitrust super-complainants" and the expansion of standing rights, combined with stricter motion practice rules and maintaining treble damages and fee shifting rules, as ways to strike such a balance and help reinvigorate private antitrust enforcement.
The Supreme Court's most recent Second Amendment opinion, United States v. Rahimi, centers the question of dangerousness in right to bear arms challenges. There, the Court upheld 18 U.S.C. 922(g)(8), the federal criminal prohibition on possession of firearms by those subject to a civil domestic violence order, opining that legislatures could regulate the right to bear arms of those who were proven credible threats to public safety. Rahimi, however, left open the question whether dangerousness might be imputed to an entire group, absent individual determinations of threat or danger. The several lower federal court cases adjudicating 18 U.S.C. 922(g)(5), the federal criminal prohibition on possession of firearms by unlawfully present noncitizens, place this concern in sharp relief. Many federal judges have imputed dangerousness to that population in upholding the federal alien-in-possession ban. Some have suggested that violation of immigration law indicates a general propensity for lawlessness, while others obliquely reference public safety threats by noncitizens to buttress their conclusions. This Article argues that if federal courts take the Supreme Court's prescribed methodology in Rahimi and New York Rifle & Pistol Ass'n, Inc. v. Bruen seriously, they must require legislatures to substantiate the link between immigration status and public threat. All available criminological data, however, fails to validate such a connection. Permitting courts to continue upholding federal and state restrictions on noncitizen firearm possession based on innuendo and stereotype reinvigorates the xenophobia of long-discarded judicial thinking, excises noncitizens from fundamental constitutional guarantees without justification, and undermines the coherence of the Court's emerging Second Amendment jurisprudence.
Recent breakthroughs in statistical language modeling have impacted countless domains, including the law. Chatbot applications such as ChatGPT, Claude, and DeepSeek-which incorporate "large" neural network-based language models (LLMs) trained on vast swathes of internet text-process and generate natural language with remarkable fluency. Recently, scholars have proposed adding AI chatbot applications to the legal interpretive toolkit. These suggestions are no longer theoretical: in 2024, a U.S. judge queried LLM chatbots to interpret a disputed insurance contract and the U.S. Sentencing Guidelines. We assess this emerging practice from a technical, linguistic, and legal perspective. This Article explains the design features and product development cycles of LLM-based chatbot applications, with a focus on properties that may promote their unintended misuse-or intentional abuse- by legal interpreters. Next, we argue that legal practitioners run the risk of inappropriately relying on LLMs to resolve legal interpretive questions. We conclude with guidance on how such systems-and the language models which underpin them-can be responsibly employed alongside other tools to investigate legal meaning.
Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA & thorn; comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court since its founding. This Article focuses on deconstructing and reconstructing the legal definition of delinquency. Part I of this Article deconstructs the legal definition of delinquency, exposing its three essential components: (1) the explicit statutory definition of delinquency; (2) the necessary detection of such delinquency; and (3) the embedded discretion to exercise or decline court jurisdiction. Part I then explores the derivative, overbroad, and incomplete nature of the statutory definition of delinquency and examines how the three essential components of delinquency together have led to the criminalization of adolescence, environment, and otherness. This exercise of deconstructing delinquency reveals how the existing legal construct not only undermines the goals of the juvenile court, but also affirmatively targets and harms youth from historically under-resourced and marginalized communities. Part II of this Article reconstructs the legal definition of delinquency to address the current definition's inherent flaws and mitigate the resulting deficiencies and harms that have existed since the court's founding. First, the Article suggests changes to make the definition of delinquency more developmentally appropriate and focus the court's jurisdiction on serious youth misbehavior. Second, the Article recommends eliminating the "pre-crime" justification for court action to further narrow the role of the court and decriminalize behavioral manifestations of poverty, trauma, and disability. Finally, the Article proposes eliminating existing exceptions to juvenile court jurisdiction baked into the definition of delinquency to combat the adultification of youth of color and make the juvenile court truly diversionary for all youth. Reconstructing delinquency in this manner should lead to a significantly smaller, more effective, and more just court, while laying the necessary foundation for realigning resources toward direct investment in youth and families prior to, and during, court involvement.
A set of constitutional claims today strikes at the heart of the administrative authority of the federal government. Claims regarding administrative policymaking, interpretation, adjudication, and official removal variously reject agencies' legal powers or their insulation from the President. These claims together pose an existential challenge to the administrative state. If they were all successful, agencies would cease to exercise independent, legally binding powers. This Article diagnoses and responds to this existential challenge. It shows how the discrete claims that comprise the challenge are each grounded in a legal theory that treats the administrative state as antithetical to constitutional structures and values. This existential challenge is not merely a creature of conservative constitutional politics, however. It is also facilitated by a judicial self-conception-transcending political ideology-that readily entertains and obliquely supports the categorical rejection of administrative authority. Insofar as the existential challenge threatens the very survival of the administrative state, it presents the opportunity to consider why this state matters. The state under threat serves democratic constitutional values, namely, to protect the people against harm, to recognize the distinct public interests requiring protection, and to provide such protection in an impartial manner. While the administrative state does not always live up to these commitments, it gives our polity at least the capacity to realize them. If the existential challenge succeeds, the people will lose core facilities of democratic law. The Article therefore proposes some legislative, executive, and judicial reforms that would respond to the existential challenge while remedying some deficiencies of administrative law's current rule structure. These proposals include explicit statutory recognition of public rights to health, safety, and equality; statutory rejection of the major questions doctrine; curbed pre-enforcement judicial review; appointment of administrative officials by a special Article III court rather than the President or department heads; and a distributed, rather than unitary, approach to executive-branch management.
This Article argues that just over fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized what might be called a right to exit religion. In this decision, the Court expressed appreciation for preserving insular religious communities, while simultaneously articulating the principle that accommodations for such communities must not unduly restrict community members' ability to exit should they wish to do so. Yet courts and scholars have largely overlooked Yoder's recognition of a right to exit religion. To make this "right" more concrete, the Article examines impediments to it through a case study of one large insular religious community-the Hasidic community in New York-and shows how the ability to exit can, in practice, be illusory. By examining the Hasidic education system and custody disputes, the Article demonstrates that impediments to exit arise not only from internal communal practices but also, at times, from the state and courts themselves.
