When federal courts possess both the authority and the obligation to halt ongoing constitutional violations yet refuse to act, they do not merely step aside. They become complicit. This Article introduces a complicity framework for analyzing "judicial bystanding": the phenomenon by which courts deploy self-imposed doctrinal barriers-standing requirements, abstention doctrines, malleable jurisdictional rules-to avoid confronting ongoing constitutional harm. Drawing on the parallel duty of law enforcement officers to intervene when colleagues violate constitutional rights, the Article argues that courts, as state actors with unique institutional authority and sworn constitutional duties, bear analogous obligations. And just as with law enforcement, the gravity of that obligation varies with context: the severity of the violation, the clarity of available authority, and the adequacy of alternative remedies all shape the moral weight of judicial inaction. This framework makes three contributions to ongoing scholarly debates. First, it reframes judicial power to encompass omissions as well as acts, revealing how nonintervention is itself a mode of institutional power. Such omissions can frustrate congressional intent, constrain lower courts, and enable constitutional harm. Second, it moves beyond the binary debate between those who view judicial duty as virtually absolute and those who emphasize the legitimate role of discretion, introducing a fault-based, contextual analysis attuned to the specific character of each instance of nonintervention. Third, it reconceptualizes the rights-remedies gap, arguing that injunctive relief against ongoing violations is particularly warranted precisely because judicial inaction in such cases constitutes a distinct and serious form of institutional betrayal. In an era of mounting constitutional stress, the duty to intervene may be at its apex.
The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law-it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics. This Article examines three myths about originalism-that it is primarily about history, that it is a traditional theory of adjudication, and that it is democratic. Originalism is a semantic theory, not a theory of history, and it is a theory that privileges semantic integrity over traditional adjudicatory virtues such as prudence and precedent. Most importantly, this Article contends that originalism aggravates the minoritarian features of our Constitution. Originalists have theorized that courts must return to 1787 or 1868 because there is no popular sovereignty except at moments of amendment. To the contrary, our Founding institutions depend upon the exercise of popular sovereignty every two and four years. To the extent that originalists do not recognize this kind of sovereignty, they are unfaithful to the central texts of our Constitution.
An important conversation is happening in U.S. politics about the appropriate role of the U.S. Supreme Court and about the Court's increasing involvement in highly politicized, controversial policy areas. Many scholars agree that the Court increasingly engages with important national policy issues. What happens when the Court addresses significant policy questions and, equally importantly, answers them in a way that conflicts with public consensus? In this Article, we develop the idea of public-opinion-based constitutional norms, which we define as areas of constitutional governance on which large, usually bipartisan majorities agree. We argue that the Court is more constrained-albeit not perfectly-in areas where such strong constitutional norms exist. We document these norms using important new survey measures that we have introduced elsewhere. Using these measures, we argue that such areas of public consensus can exist, and, when they do, the Court tends to rule in ways that favor these constitutional norms; when the Court rules in opposition to such norms, there tends to be backlash against the Court. While this backlash does not fully constrain the Court, this process can increase costs to the Court associated with rulings that undermine or conflict with such constitutional norms. Furthermore, that public-opinion-based norms may constrain the Court means that the public has some agency in American constitutional governance. By creating broad bipartisan public consensus around constitutional expectations, the public can contribute to making future unpopular rulings more costly. We conclude this Article by discussing potential areas where the development of strong, public opinion based constitutional norms of the kind we describe could be beneficial for U.S. democracy and the rule of law. This Article was prepared for UCLA Law Review's Symposium on the Imperial Supreme Court. The ideas presented here build off previous papers as well as an ongoing book project.
In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today's liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms. Thus, like liberals and progressives today, New Dealers proposed various measures aimed at curbing judicial review to safeguard the legislative reforms they saw as essential to making democracy work. Yet at the same time they hoped to preserve the Court's power-which they hoped the Court would exercise-to defend civil liberties, protect vulnerable minorities against state violence, and safeguard the rule of law in a moment of rising authoritarianism. This Article argues that this New Deal moment contains significant lessons for liberals and progressives today, who are once again arguing for curbing the power of a hostile, right-wing Supreme Court-while at the same time continuing to hope and demand that that same Court use its authority to thwart some of the government's more extreme violations of the rule of law. Liberals and progressives must respond to the present crisis, but must also think about what kind of constitutional order, with what kind of Supreme Court and federal judiciary, exercising what kinds of power, we hope to build. This Article surveys the various answers in present-day debates, from abolishing judicial review, in part or whole, to reforming selection procedures to "balance" the Court. We argue, drawing on the work of the New Dealers, for a more flexible and pragmatic approach that takes the Court seriously as a political body-one that can sometimes be persuaded to back off through political confrontation. The present Supreme Court has done much-from eviscerating campaign finance and anticorruption law to attacking the administrative state-to lay the groundwork for oligarchic rule. The solution, we argue, is not to eliminate the Court's power of judicial review or to pursue technocratic reforms that aim to put the Court above politics. Instead, liberals and progressives should lay the political groundwork now for confronting the Court through constitutional politics.
Autocratic regimes, now governing 70 percent of the world's population, often come into power by democratic means but then use their authority to undermine the very institutions that sustain democracies, including representation and participation in elections, protection of minority rights, the rule of law, and checks and balances. This erosion of structural guardrails is known as democratic backsliding. The parallels between what autocratic regimes do to cause democratic backsliding in their realms and what the contemporary U.S. Supreme Court has done in its realm are eerie. Like many autocrats, the current Court's supermajority owes its existence to a nominally constitutional, but politically manipulated, process. Also like many autocrats, the Court has proceeded to use legalistic-sounding methods and its considerable institutional prerogatives to increase its own autonomy and power. Indeed, on close inspection, the Court is shown to have behaved in many ways seemingly torn from the autocrats' playbook: degrading the rules governing elections, aggrandizing itself at the expense of the other branches, subverting protection of minority rights, tolerating if not encouraging corruption, and sowing chaos. The Court has thus engaged in a level of judicial usurpation that we call autocratic judging. Only by exploring how this could have happened to our Court will there be any hope of stemming the rise of this creeping threat to the constitutional order. Our study suggests two possible causes: the lack of external checks by the U.S. Congress and the absence of the type of internal constraint that arises when there is a true center or median Justice. That consequential absence is likely to persist in the near term, which leaves all hope of improvement with Congress.
The Roberts Court's embrace of the conservative Christian agenda-from religious liberty to the erosion of the separation of church and state-has been well documented. This Article contributes to this growing body of scholarship by coining and developing the concept of judicial zealotry: an approach to judging, precedent, and the Court's self-conception that mirrors the moral and religious attitudes of the radical Christian worldview legal movement. Judicial zealotry goes beyond the run-of-the-mill judicial activism of eras past. It is mission-driven, self-righteous, and insular- consistent with the biblically grounded worldview of the Christian Right's legal institutions even as the Justices decline to invoke God and the Bible explicitly in their reasoning. Drawing on original interview and participant observation data from Regent Law School, Liberty University Law School, and Ave Maria School of Law, this Article traces the roots of judicial zealotry from the Federalist Society's early embrace of judicial restraint and its deliberate marginalization of Christian nationalists, through the Christian Right's turn to the courts and the construction of its own mission-oriented legal institutions, to the Roberts Court's quiet adoption of the movement's defining characteristics. Those characteristics are threefold: (1) a restoration mandate that deploys "history and tradition" to return America to a white, patriarchal, and Christian past; (2) the protection of Christians as a persecuted minority; and (3) an insular "Holy Huddle" that reinforces judicial righteousness and insulates the Justices from criticism. The Article concludes that the Justices' continued concern with elite legitimacy constrains the reach of Christian worldview jurisprudence on the Court, ensuring that its Christian nationalist project will proceed cloaked in the secular language of originalism and history rather than open biblical reasoning-but will proceed nonetheless.
As policy proposals for tenant protections are debated nationwide and often struck down, tenants continue to live in dangerous conditions that our legal system is ill equipped to redress. Code enforcement is ineffective, and depending on the state, the implied warranty of habitability leaves tenants without recourse to compel their landlord to make necessary repairs. In response to persistent disinvestment of building maintenance, as well as eviction and rent spikes, a resurgence of tenant organizing is spreading across the United States. Though the struggle for adequate housing for low-income communities is not historically unique, the worsening conditions that have accompanied the rise of corporate landlords, as well as the emergence of a federal Tenant Union Federation-a "union of tenant unions"-have precipitated a new wave of coordinated action. The government has created enforcement mechanisms to penalize landlords who fail to maintain habitable living conditions in their rental units. These include sanctions for housing code violations as well as tenant remedies like rent abatement. These laws are underenforced. Tenant organizing compensates for this gap by waging campaigns that demand landlord accountability. Considering the essential role that organizing plays in trying to enforce habitability, this Article outlines recommended policies that should be adopted at the federal, state, and local level in order to protect tenants' right to organize. Using the only organizing statute enshrined at the federal level, the National Labor Relations Act, as a model, this Article draws parallels between the tenants' and workers' rights movements, while also underscoring how their interests diverge. Although federal, state, and local tenant protections continue to be systematically eroded, organizers have found creative strategies to achieve victories, big and small. This Article seeks to contribute to the growing field of "movement law" by examining how grassroots organizations influence legal change through informal, community-driven strategies. Especially during times of political retrenchment and systematic attacks on poor and working-class communities, organizing offers a way forward.
American prisons are a black box: remote, austere, and cruel. Although basic demographic data about the people confined in prisons are common-that is, data on the number of people incarcerated, their age, or their race-there is little information available to the public regarding conditions of confinement. A natural response to this data deficit is to advocate for more of it. This Comment argues, however, that more data alone are unlikely to meaningfully shed light on conditions behind bars, at least when the data are tied to carceral sources. This Comment contends that data sourced from administrators, courts, and other entities invested in carceral institutions tend to downplay the harms associated with incarceration, while also normalizing prison as a natural and inevitable feature of social organization. To understand how carceral data achieves this sleight of hand, this Comment explores the minutiae of prison conditions data and prison law doctrine. When administrators collect data on solitary confinement, how do they document isolation in prison? When a member of the public submits a freedom of information request, what documents about life behind bars are prison administrators willing to release? And, when courts publish opinions, how do they speak about abuses suffered by incarcerated people? In the weeds of data policy and prison law doctrine lie important epistemic insights about the ways the public understands (and misunderstands) prison through the data made available by carceral sources. In parsing the risks associated with conditions data, it is possible to find alternative ways to shed light on the nuances of life in prison. In other words, it becomes possible to begin the process of abolishing carceral data.
Criminal law and environmental law share a central question: How should the state respond to harm? Despite their common concern, these fields approach state power in sharply divergent ways. Criminal law scholars increasingly question the legitimacy of policing and punishment, while environmental law scholars and activists often embrace expanded enforcement and call for harsher penalties against environmental offenders in the name of ecological protection. This Article challenges the prevailing assumption that protecting the environment requires more aggressive state intervention. Excavating the oftenoverlooked history of resistance to environmental criminalization, it uncovers a persistent-if latent-skepticism toward policing and punishment in environmental discourse. It places environmental law and criminal law into conversation around abolitionist theory, offering a novel framework for evaluating legal and non-legal reforms across both domains. Abolitionist thought, though rarely applied to environmental regulation, offers powerful tools for reimagining environmental law: not as a choice between enforcement and deregulation, but as an opportunity to confront the deeper carceral logics that underlie both environmental harm and environmental governance. At the same time, environmental law presents a distinct challenge for abolitionist theoryby exposing the practical tensions between abolition of policing and punishment and the state's protective functions. Examining these tensions enriches abolitionist scholarship while offering new pathways for addressing ecological crises without compounding social injustice. Ultimately, this Article calls for a more reciprocal and critical engagement between environmental law and criminal law-one that is essential for developing a more balanced and just approach to state intervention in the face of ongoing social and environmental harms.
The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court's powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal doctrine of stare decisis seems to operate as such a weak constraint in the Supreme Court if it only comes into play after the Court has already made the discretionary decision-as a matter of agenda control-to put a precedent in jeopardy. This Article describes two functions that agenda control can serve in order to maintain continuity in the law as an alternative or complement to the formal doctrine of stare decisis. First, certiorari and agenda control function as safety valves, enabling the Court to preserve precedents that are inconsistent with the Justices' view of the law but too entrenched to abandon. Second, certiorari functions as a decelerator, permitting the Court to moderate the pace of legal change after a change in membership. This Article closes by considering some normative responses to the Court's relatively unbounded control over its agenda, including the possibility of internal principles to guide the Court's discretion, judicial role morality as a limit, and congressional docket reform. It concludes by proposing a change to the certiorari process: Five votes, rather than the typical four, should be required to grant certiorari in a case presenting the question whether a precedent should be overturned. This change would more closely align certiorari practice with the rule-of-law values underlying stare decisis.
Private surveillance is rapidly reshaping public space. With inexpensive storage, widespread amplification, and integrated data sharing, modern surveillance networks operate with unprecedented scale, prevalence, and influence. Unlike the neighborhood watches of the past, these networks are always on, subjecting public movements to facial recognition from doorbell cameras, license plate readers tracking car movements, and motion-activated alarms that deter all but the most temporary uses of public space. On hyperlocal social media, people lob unverified accusations and bigoted blame toward perceived outsiders. Fostering a constant atmosphere of fear, technology vendors are better able to sell a suite of new products, more costly subscription services, and even private security forces. On the one hand, private surveillance can help individuals feel safer, provide some information about goings on in their community, and potentially deter crime. But on the other hand, private surveillance enables a subset of the community to decide who belongs in a neighborhood and police the acceptable uses of public space. Over time, the targets of private surveillance become broader and broader, chilling public movement and straining community ties. Common regulatory approaches tend to focus on government surveillance or consumer protections for the people who purchase a security device. While these efforts address important issues, they can fail to reach the impact that private surveillance has on the broader public, which includes individuals who have no contractual relationship with surveillance companies. Finding limited redress for the public harms of private surveillance, this Article advances a framework rooted in tort law. This framework (1) theorizes public harm; (2) outlines how to assess the reasonability of an interference; and (3) evaluates whether a particular person or entity can be held legally responsible for the harm. This flexible framework can be adjusted to inform legislative responses as well as actions rooted in private law.
Federal law has long prohibited insider trading in securities such as stocks and bonds. Yet many other financial assets-particularly derivatives and commodities-have historically fallen outside those rules. This Article asks why insider trading is penalized for some assets but not others. It argues that the goals of insider trading law are often pursued through alternative mechanisms. Markets lacking insider trading prohibitions are not unregulated; rather, they are governed by substitute regimes that achieve similar ends through different means. By examining the relationship between securities insider trading law and derivatives position limits, this Article clarifies the function of insider trading regulation and illuminates its boundaries. It shows that position-limit rules, though rarely analyzed in this way, can serve as functional substitutes for insider trading restrictions, offering a broader perspective on how law manages informed trading across markets.
Criminal defendants increasingly face the risks of digital evidence. These risks include intentional manipulation, accidental alteration, and even the threat that visual displays like footage or data visualizations lure viewers into an unquestioning acceptance of events as they seem to have unfolded. Some scholars have deemed the U.S. evidence system responsive to issues like intentional manipulation or visual prejudice, and others have emphasized the system's unmitigated vulnerabilities. But the literature writ large has yet to emphasize entire classes of risk flowing from digital evidence. Do the Federal Rules of Evidence (the Rules) mitigate the danger of technological displays that combine visual prejudicial effect on jurors with the impairment of jurors' ability to assess underlying datasets? Do the Rules guard against video footage that has undergone data loss and morphed into a depiction of a nanny battering rather than coddling an infant? (This latter evidence led to the conviction of a working-class Latina only for prosecutors to find it "worthless" years later.) Even granting that the Rules are protective, can advocates wield them to ensure fair outcomes in an adversarial system without grasping the issues arising from digital evidence? U.S. legal scholarship has also not yet conceived of digital evidentiary risk as racially differentiated. The criminal justice system disproportionately charges and sentences racial and ethnic minorities, reliant on public defenders in a system that struggles to mitigate the many risks of digital evidence. From this backdrop surges an inequitable distribution of possible harms. Prosecutors have greater access to digital evidence and expert testimony, while public defenders are short on resources and may lack the skills to contest admissibility and weight. Left in the wreckage are criminal defendants, overwhelmingly from vulnerable communities, facing perilous consequences amid hesitant advocacy in an adversarial system. This Comment underscores the threat that digital evidence poses to racial justice. Part I examines how the risks of digital evidence are disproportionately borne by racial minorities. As this type of evidence becomes increasingly prevalent, it is more frequently introduced against racial and ethnic minorities, who are overrepresented as criminal defendants. This heightens the need for public defenders to counteract its risks, but some evidence shows that they need greater training to do so. In light of these disparities, Part II outlines particular categories of digital evidentiary risks- complex technological prejudice and unintentional modification. Part III conducts a race-sensitive analysis of Rule 902(14)'s efficacy in protecting litigants against such risks. Finally, Part IV suggests open-source intelligence (OSINT) investigative human rights coursework as one powerful remedy to equip public defenders and other advocates to understand, identify, and contest the admissibility and weight of digital evidence, thereby helping mitigate its risks to racial justice.
In 303 Creative v. Elenis, the Supreme Court effectively exempted plaintiff Lorie Smith from Colorado's LGBT-inclusive nondiscrimination law, allowing her to refuse service to same-sex couples if she opens a business designing wedding websites. The Court upended substantive nondiscrimination law, but the opinion also has important implications for standing doctrine. Although standing doctrine requires that plaintiffs must suffer an injury in order to challenge a law's validity, the Court granted Smith standing even though she was not yet actually in business and had never been threatened with enforcement of Colorado's nondiscrimination law. The Court's lenient treatment in granting Smith standing contrasts starkly with how courts have treated LGBT plaintiffs. Both historically and recently, Congress and state legislatures have targeted their LGBT citizens for discrimination in several major areas: criminal law (through sodomy statutes), employment restrictions (such as Don't Ask, Don't Tell), marriage law (by barring same-sex couples from marrying), anti-nondiscrimination laws (by exempting individuals and businesses from LGBT-inclusive local nondiscrimination laws), and speech prohibitions (such as Florida's "Don't Say Gay" law). Despite that targeting, courts have denied standing to LGBT plaintiffs challenging these anti-LGBT laws by asserting that the plaintiffs have not suffered injury. Judges have mischaracterized the injuries of LGBT plaintiffs as hypothetical, non-imminent, and not particularized. Ironically, these labels apply more accurately to the injuries alleged by plaintiffs, such as Smith, who were granted standing to challenge LGBT-inclusive nondiscrimination laws, than they do to LGBT plaintiffs who were denied standing to challenge discriminatory laws. No principled distinction explains why the injuries suffered by LGBT plaintiffs are insufficient for standing purposes while Lorie Smith's bare desire to discriminate in a business she might pursue in the future is sufficient. This Article exposes this double standard and discusses hypotheses to explain its origins and persistence. Fortunately, despite the long history of courts denying LGBT plaintiffs standing to contest the constitutionality of anti-LGBT laws, future plaintiffs can now argue that 303 Creative's holding requires courts to recognize that they have standing. The Court's otherwise rights-diminishing opinion in 303 Creative could play a role in protecting LGBT rights in the long run by helping plaintiffs secure standing to challenge anti-LGBT laws.
This Article utilizes Critical Dalit Feminism to uncover the intersectional impact of gender and caste hegemonies in cases of sexual violence in India. It challenges the conventional wisdom that doctrinal approaches that rely on punitive measures can solve the pervasive and imbricated issue of sexual violence. It also examines the sociolegal barriers influenced by a legacy of castebased discrimination that hinder sexual violence survivors, particularly subaltern women from marginalized castes, from accessing carceral forms of justice. In doing so, this Article presents a radical understanding of justice which is decolonial and demasculine, and offers transformative pathways relying on restorative approaches to address sexual violence by extending the prison abolitionist framework developed in other national settings to the Indian context.
This Comment argues that the explosive growth of Regulation D private offerings has outpaced the investor-protection foundations of federal securities laws. With minimal required disclosure and a lack of regulatory oversight, the Regulation D framework creates material information asymmetries for and collective action problems among investors. Previous reform proposals-expanding Form D requirements, conditioning exemptions on more filings, and forcing private companies into public-company-style reporting-either risk exceeding the SEC's delegated authority or fail to address investors' abilities to access and appropriately evaluate material information. To better balance capital formation and investor protection, this Comment proposes a tiered Regulation D framework keyed to offering size. For smaller offerings, Form D would be modestly expanded to provide investors with more reliable information. For larger offerings, issuers would choose between a targeted disclosure track and a novel corporate governance solution, an Offering Advisory Board. The Offering Advisory Board would conduct independent financial and technical diligence to provide investors with a plain-language report subject to executive certification. This approach could mitigate investor information asymmetries and weed out bad actors while preserving the dynamism of the private market.
The psychological comfort of white Americans is essential to the sustenance of white supremacy. The relationship between white psychological comfort and the U.S. Constitution is rich, and yet it has gone almost entirely unexplored in legal scholarship. In fact, the term "white comfort" is grossly undertheorized in law journals; few even mention the phrase, and none define it in a context outside of DEI trainings. This Article uses leading models of psychological stress, American constitutional history, and Robin DiAngelo's exposition of white fragility to build out an original theory of constitutional white comfort. The psychological comfort of white people influenced the Constitution's formation in the 1780s and has impacted constitutional interpretation from the time of its ratification to the present. In that time, the constitutional right to white comfort would be impliedly recognized in a key 1876 Supreme Court case, and it would later be exercised during the Jim Crow era, liberally transformed during the civil rights era, and crystallized in the post-civil rights era. Central to the safeguarding of constitutional white comfort has been an alliance between the white citizenry and the nation's highest tribunal. This Article contributes to racial justice scholarship by highlighting a formidable barrier that must be broken for racial salvation to be realized.
What does a family look like? In recent years, societal understandings have generally grown more inclusive of different kinds of familial structures, including queer families, blended families, interracial families, working mothers, and caregiving fathers. But traditional notions of family roles and expectations still loom large in public consciousness. Critical drivers of this discrepancy are the legal systems that continuously uphold the power of the white, middle-class, patriarchal nuclear family image. Through a performance theory lens, this Comment argues that the child welfare and family policing system punishes nontraditional, minority, and disenfranchised families to uphold socially dominant performances of the family. Part I provides a brief overview of performance theory. Part II argues that the child welfare system specifically targets nontraditional family structures in favor of the traditional standards-without providing meaningful support to struggling families. Part III argues that the welfare system demands children align with the traditional image of childhood to ensure the continued dominance of that performance-to the detriment of children. Part IV advocates for the abolition of the current system in favor of community-oriented approaches to safe, healthy, supported families and kids.
