In 1969, California became the first state to adopt no-fault divorce. Soon after, the rest of the United States followed and today all fifty states have no-fault divorce laws. Now, the Republican Parties in Louisiana, Texas, and Nebraska are challenging no-fault divorce, with some advocating for covenant marriages. No-fault divorce has led to significant benefits for women, including decreasing domestic violence and female suicide rates as well as promoting female autonomy by providing a means for women to unilaterally leave oppressive marriages. This Note examines how the removal of no-fault divorce is out of sync with the liberal rights developments in family law that remove gender performativity from numerous legal issues, specifically alimony, custody, and parentage. Furthermore, this Note argues that the removal of no-fault divorce is unconstitutional based on the Supreme Court’s interpretation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment in Obergefell v. Hodges.
On June 19, 2024, the State of Louisiana passed House Bill 71 (H.B. 71), a law requiring every public-school classroom to display a copy of a Protestant version of the Ten Commandments in large, easily readable font. Immediately following the passage of the law, Louisiana residents of diverse faith backgrounds challenged H.B. 71 on First Amendment grounds in the case Roake v. Brumley. The U.S. District Court for the Middle District of Louisiana struck down the law and granted a preliminary injunction, which the U.S. Court of Appeals for the Fifth Circuit affirmed on appeal. After a rehearing of the case at the Fifth Circuit en banc, the Circuit Court vacated the District Court’s preliminary injunction on the basis that the lawsuit was brought prematurely. Recent changes in First Amendment doctrine have complicated the fate of the law, and what would have been an obvious violation of the First Amendment just a few years ago is now more difficult to discern considering recent Supreme Court precedent. The fate of H.B. 71 will not only indicate the future of religion in schools and in public life—it may signal the reemergence of Protestantism as an American institution in an increasingly religiously diverse country.
Coercive police interrogation tactics create psychological pressures that are known to lead to false confessions. False confessions in turn produce the potential for wrongful convictions, imprisoning innocent people for crimes they did not commit. The current legal doctrine surrounding how courts analyze the validity of a suspect’s confession rests on whether the confession was voluntarily made. In making this determination, most courts use a preponderance of the evidence standard, validating a confession upon a finding that it was more likely than not voluntarily given. By implementing a higher standard, such as beyond a reasonable doubt, judges would be forced to more carefully view the circumstances surrounding a confession. Theoretically, a higher standard would lead to fewer confessions being admitted into evidence, which would be especially impactful in cases where a false confession is the only evidence the prosecution has against the defendant. This Note argues that a change is imperative and that state courts must raise their voluntariness standard to limit the number of wrongful incarcerations. Some states, like Massachusetts, have already done this. Additionally, this paper argues that the Massachusetts rule is the best equipped at attacking this issue because it provides multiple barriers to the admission of such evidence and forces members of the jury to more intensely consider the confession and its surrounding circumstances.
Since the Progressive Era, the United States has vowed to eradicate the “evil” of dangerous child labor, both within the nation and abroad. Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to provide meaningful labor protections, including restrictions on child employment, particularly for those working in hazardous fields. The Act was intended to operate in tandem with complimentary state-level protections. Despite this, following a surge in migration from Central and South America and a strained United States domestic labor market in the twenty-first century, conditions have once again become ripe for child labor exploitation. Within the United States today, despite federal and state-level monitoring regimes, migrant children remain exceptionally vulnerable. To better protect these minors, this Note proposes drawing on past labor movements’ successes by embracing worker-led co-enforcement strategies. These strategies may empower workers and grassroots organizations to actively monitor, report, and address gaps federal regulators left.
Generative artificial intelligence (AI) is a developing technology that creates unique images, essays, and other outputs based on a user’s prompt. To train AI to produce such outputs, however, the program requires a large dataset to learn from—datasets that typically contain many human artists’ copyrighted works. AI’s reliance on these datasets potentially implicates copyright law when its outputs bear similarities to human artists’ works. This Note focuses on the legal challenges brought by and available to freelance visual artists, whose livelihoods are particularly vulnerable to AI image generation because they rely on social media and informal work-for-pay relationships. This Note argues that the generally accepted Fair Use analysis that AI outputs are obviously transformative fails to consider the full implications of the Andy Warhol Foundation for the Visual Arts v. Goldsmith decision and the potential impact of AI generated images replacing freelance social media artists. This Note advocates that courts should seize the opportunity of emerging copyright litigation to definitively hold that AI generated images are not inherently transformative.
Throughout the United States, animal shelters have become increasingly overpopulated because of a rise in surrenders, fueled by macroeconomic inflation and housing scarcity, and a decline in adoptions. Consequently, euthanasia rates for dogs and cats have skyrocketed. In response to this issue, at least five states have introduced and considered bills over the past ten years that would incentivize the adoption of dogs and cats from shelters using tax credits or deductions, with New York being the most recent in 2025. The issue with this approach, however, lies in the multifaceted nature of the overpopulation and euthanasia crisis, and the difficulty in solving the issue through individual taxpayer behavior. This Note argues that, as currently proposed, the use of tax credits to encourage adoption would be unsuccessful given it fails to address the continuing costs of ownership that have caused an increase in surrenders. This Note instead suggests that a refundable tax credit would be the most viable pathway to a lasting solution of any tax expenditure, but that ultimately targeted direct spending, not tax expenditures, is the proper means of bringing about substantive change.
Lending is a cornerstone of the American economy. Historically, lending practices were informal and relied on personal relationships and trust. As economies grew and trade expanded, a need for a more structured system of lending arose. This led to the rise of secured transactions. Secured transactions allow borrowers to grant security interest in their assets to creditors. The security interest reduces risk for creditors because it allows them to seize the borrower’s assets to recover any loans in the event the borrower defaults. Borrowers also benefit from secured transactions because they have access to larger levels of financing, often at lower interest rates. To bring uniformity among states regarding secured transactions, the American Law Institute and the Uniform Law Commission developed Article 9 of the Uniform Commercial Code (UCC). Nevertheless, even with these provisions in place, secured transactions still face unique challenges. The 2001 revision of the UCC allowed borrowers to grant lenders a security interest in their commercial tort claims. While this allowed for new lending opportunities, it also introduced risks. Section 9-108(e)(1) of the UCC requires borrowers and creditors to specifically identify commercial tort claims in security agreements designed to establish and perfect security interest. Moreover, section 9-204(b)(2) prohibits lenders from having security interests in any commercial tort claims that arise after the debtor has signed the security agreement. These provisions have caused numerous issues for creditors. Many creditors establish security interest in all a debtor’s assets, only to find that they do not have security interest in the debtor’s commercial tort claims because of section 9-108(e)(1) and section 9-204(b)(2). This Note argues that section 9-108(e)(1) and section 9-204(b)(2) must be removed to allow for more efficient handling of security interests in commercial tort claims.
Sentencing for white-collar criminals remains unsatisfactory and inequitable when compared to sentencing for their blue-collar counterparts. Although there are many distinctions between the two types of defendants, namely their socioeconomic statuses and backgrounds, two major problems—judicial leniency and the loss table calculation—within the current sentencing regime add to these sentencing disparities. This Note argues that it is not the Sentencing Guidelines that need to be changed, but the context of their application. This Note suggests introducing a new bench of judges with experience handling white-collar cases, either in their careers as lawyers or since they ascended to the bench. This would theoretically assist judges in avoiding the typical pitfalls and biases that may contribute to shorter white-collar sentences. Although this solution may prove difficult for numerous reasons—the difficulties of categorizing white-collar crimes and the potential to further stigmatize and isolate blue-collar criminals, for example—the current sentencing regime needs reform, and a new white-collar bench could be the very thing needed to properly enact this change.
Haunted houses have existed in the United States for over a century, but despite their prominence, little legal precedent exists regarding their regulations. Given the growing commercialization of horror through movies and haunted houses, coupled with the increasing number of injuries linked to a controversial haunted house in Tennessee, the need for regulations has never been more urgent. Nevertheless, even outside of regulations, developments in tort and contract law show that contractual agreements to participate in a haunted house may not stand as enforceable contracts. Courts have consistently sided with haunted houses, claiming that patrons assume the risk when they consent to attend a haunted house, however, this does not acknowledge the lack of substantive precedent stemming from the prominence of binding, confidential arbitration clauses. This Note argues that the Consumer Product Safety Act should be expanded to include haunted houses, and unique regulations should be adopted to account for the typical contents of haunted houses. Additionally, this Note argues that courts should refrain from adhering to arbitration clauses in industries with high rates of injuries, such as amusement parks, and, in the absence of arbitration clauses, many haunted house contracts should be void. Under the traditional doctrine of assumption of risk, legally binding haunted house contracts should still be enforceable, preventing the flood of litigation that could arise without arbitration clauses.
Criminal law purports to care about the individual culpability of those committing crimes. Individual mental states or defenses based on one's beliefs are considered foundational to moral responsibility and criminal conviction. The expansion of algorithmic risk assessment tools in the criminal legal system, however, threatens these principles, changing the criminal law subject from an autonomous individual to merely a predicted object. This Article argues that risk assessment tools—now functioning as gatekeepers at both the entry and exit stages of the criminal process, from predictive policing to compassionate release eligibility—have shifted the criminal system away from its foundation in individual culpability. Scholarship on risk assessment tools has thus far largely analyzed their isolated impact on specific stages of the criminal process while portraying algorithmic tools as being bound by existing laws. This Article bridges these siloed discussions and demonstrates that far from being bound by existing laws, algorithmic tools threaten fundamental criminal law principles and reshape substantive criminal law itself. It thus uncovers the aggregated, overlooked harms these tools inflict on the foundations of modern criminal law. The Article then offers a novel legal framework to tackle these harms. By integrating the right to due process, the right to contest AI, and the right to speak in criminal proceedings, it proposes a system of “re-individualization through contestation.” This framework will not only recalibrate algorithmic tools to accord with fundamental criminal law principles, but also offer an opportunity to leverage mounting criticism of unchecked algorithmic expansion to catalyze solutions to decades-old problems in our criminal legal system.
Political prediction markets have been around in limited formats since 1988, but they recently returned to the public consciousness during the 2024 elections as platforms like Kalshi offered trades on the United States presidential and congressional races. The question is: are these trades legal? The Commodity Futures Trading Commission (CFTC) said no, a federal district court said yes, and the answer has implications for the use of prediction markets beyond just elections. To get closer to an answer, this Note examines the statutory source of the CFTC’s authority to review trades that are based on the outcome of events (sometimes called “event contracts”). It concludes that the law is contradictory and unclear, but that political prediction markets benefit the public. For that reason, this Note recommends new language for the relevant part of the Commodity Exchange Act that would narrow the CFTC’s authority to review event contracts and clarify the standards by which the agency decides whether the contracts it reviews are contrary to the public interest. “All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturally accompanies it.” —Henry David Thoreau
A debate is now raging concerning whether to relax the rules that govern the provision of legal services, to welcome nonlawyers into the fold. In recent years, roughly a dozen states have taken precisely this step, seeking to expand access to those currently priced out of the legal services marketplace. But in other places, reform efforts have stalled, derailed by claims that lawyers—and lawyers alone—have the training, education, and experience to supply high-quality assistance. The stakes of this debate are sky high: The legal profession is large and influential, courts are crucial, and the access-to-justice crisis at issue—the problem that has set states’ reform efforts in motion—is staggering. But the debate, itself, backstops on a question that is surprisingly straightforward: Can nonlawyers furnish legal services with competence and integrity? Or alternatively, to navigate our labyrinthian legal system, must one have comprehensive know-how of the kind only licensed lawyers possess? Wading into this debate, we compile the best evidence currently available. After canvassing nearly a century of research conducted at different times, in different places, and using a wide array of methodologies, we conclude that specially trained nonlawyers can, indeed, supply high-quality help. The notion that having a law degree is a necessary predicate to offering legal services with “integrity and competence” may be well ingrained. And, for those of us in the legal profession, it is surely convenient and comforting. But it is an idea that, when empirically tested, simply does not hold up.
An important question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a “search” occurs? The issue comes up in diverse contexts including geofence warrants, reverse keyword searches, tower dumps, and Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of any Fourth Amendment search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan? This Article argues that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. The proper question is what information is expressly or implicitly exposed, not how much raw data passes through the filter or what the raw data output says expressly. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, tower dumps, and artificial intelligence queries.
First Amendment independent appellate review, now known as the Constitutional Fact Doctrine, calls on federal appellate courts to review de novo facts that strike at the heart of speech freedom claims. Yet the doctrine’s scope is underdefined, and the Court has never explained why, exactly, speech freedom interests warrant this special protection.In search of the Constitutional Fact Doctrine’s missing normative underpinnings, this Article recovers its overlooked origin story. This Article traces the doctrine’s roots not to early speech cases, but rather to capital criminal appeals brought to the Supreme Court predominantly by Black men sentenced to death for rape and murder in Southern states. The Supreme Court recognized the egregious equal protection and due process violations these petitioners suffered only by refusing to defer to lower courts’ factual findings in those cases. The doctrine migrated to the First Amendment realm in the 1960s through racial civil rights cases. This evolution suggests that independent appellate review was not motivated by an abstract reverence for speech. Instead, it sought to address entrenched inequities and to safeguard democratic principles.To that end, this Article proposes a new, more focused framework for applying independent appellate review in the First Amendment context. Courts should apply the doctrine: (1) when it advances democratic interests weakened by structural forces or (2) when it resolves factual questions entangled with complex doctrinal standards. The Article applies this approach to the growing circuit split over the standard of review for true threats determinations and ultimately argues that independent appellate review is not warranted in that context. This Article aims to align First Amendment independent appellate review with its foundational purpose: ensuring that fundamental constitutional rights—including speech freedom—are vindicated with fairness and a pragmatic attention to power.
The United States is facing a dire housing crisis, and most Americans agree that housing is a universal necessity. Yet under current Supreme Court jurisprudence, housing is not a fundamental right, and individuals facing housing insecurity from an eviction are generally not members of a suspect class. This is because eviction is often viewed as an individual problem and a symptom of poverty, which the Supreme Court has repeatedly affirmed is not a suspect classification. This Article disrupts the superficial narrative that eviction is an individualistic symptom of poverty, and instead views evictions from a systemic and historical perspective. It argues that this shift in viewpoint opens the door to constitutional protections for some evictees. To accomplish this, the Article introduces a novel framework-the Eviction Caste System. It builds this system in three parts. First, it outlines the origins of the system, including discriminatory housing initiatives throughout the 1900s, which relegated certain minority populations to rentals rather than homeownership and excluded these individuals from generational wealth building. Second, it explores contemporary factors that have solidified the system, such as the rise of artificial intelligence and tenant screening companies, which sell inaccurate and incomplete data to landlords who rely on it when deciding who to rent to. This process brands tenants with a "Scarlet E," carrying lifelong consequences that are frequently passed down to future generations. And third, it draws on definitions and teachings about caste from other arenas to propose a system comprised of three castes-the Preferred Property Caste, the Perpetual Renter Caste, and the Scarlet E Caste. It posits that those subjected to historically discriminatory housing practices and carrying the "Scarlet E" occupy the lowest rung of the caste system, having access only to poor-quality housing in under-resourced areas. With this systemic framework in place, the Article concludes by offering a path for protections for the Scarlet E Caste-through the Fourteenth Amendment and the Court's unconstitutional animus jurisprudence as well as an amendment to the Fair Housing Act. The viewpoint shift offered by this Article thus allows protection of an exceedingly vulnerable (although not suspect) class, and recognition of a critically important (although not fundamental) right. It also brings collective power to this group of individuals, many of whom have traditionally been unable to vindicate their rights through affirmative litigation. And it moves the needle toward addressing the pressing housing crisis in the United States.
Academic freedom faces an existential crisis. The Trump administration, building on a movement that began in the states, is seeking ideological conquest of higher education. Some universities have already surrendered. Others fight on, facing an endless barrage of assaults on their institutional autonomy. Faculty too have chosen to resist, relying on their free expression rights. One of the most potent weapons in higher education’s arsenal is the constitutional academic freedom doctrine, a First Amendment protection that safeguards faculty’s academic expression and universities’ academic judgments. But the Supreme Court’s embrace of history and tradition as a focal point of its individual rights jurisprudence draws into question this doctrine’s vitality.This Article explores where academic freedom stands in an increasingly traditionalist order. Examining three defining events in America’s free speech tradition—the Sedition Act of 1798, the suppression of antislavery speech during the antebellum period, and segregationists’ attempts to silence the Civil Rights Movement—I find four free speech principles that persisted across time. First, laws discriminating against speech based on the speaker’s opinion are unconstitutional. Second, the First Amendment vigorously protects discussion of matters of public concern. Third, the First Amendment safeguards the processes that produce knowledge and discover truth—namely, free inquiry and discussion. Fourth, the purpose of free speech is to guarantee a republican form of government, which requires the people be able to freely investigate public measures and men and communicate their findings. These enduring principles also happen to be well represented in speech doctrine, including its protection of academic freedom.Furthermore, assessing the traditional functions of education in a republic offers insights into the purpose of academic freedom. James Madison, Thomas Jefferson, and their contemporaries believed education to be integral to diffusing knowledge and instilling republican values, which protected liberty and enabled the people to carry out their duties of citizenship. Antislavery Republicans shared this belief in the close connection between education, citizenship, freedom, and republicanism—making education a major part of their Reconstruction agenda. The constitutional academic freedom doctrine is a legacy of this history, synthesizing free speech principles to the end of guaranteeing a republican education. As the Trump administration’s campaign of ideological conquest makes its way before the judiciary, courts should lean on academic freedom to promote the First Amendment’s and education’s traditional values.
What happened to balancing the equities? According to the standard formulation, courts must weigh competing interests when determining whether to grant preliminary relief in litigation. That is in addition to considering the plaintiff’s likelihood of success on the merits and assertions of irreparable harm. But in regulatory cases, where preliminary relief is increasingly salient in the national political sphere, courts have turned away from equitable balancing. Today, preliminary-relief determinations in these cases are almost entirely about the merits. Courts, including the Supreme Court, simply declare that the interests are “very weighty” on both sides and thus decline to engage in the time-honored tradition of equitable balancing that defined the task of courts at the preliminary stage when Congress enacted the Administrative Procedure Act. But equitable balancing is possible—and the Supreme Court’s recent turn in administrative law jurisprudence can light the way forward. When considering the government’s interest preliminarily in a regulatory case, courts should disfavor novel regulation, elevate federalism, respect the President’s interest in internal executive branch management, and take account of the scope of the requested remedy. The government’s interest is not the same in every case, and applying these four principles will help courts move past “very weighty” and get down to brass tacks when balancing the equities. A return to equitable balancing in regulatory cases can have several positive implications: disciplining remedial practice, promoting interbranch harmony, alleviating the Supreme Court’s emergency docket, clarifying the role of amicus-brief filers, and ameliorating other issues at the preliminary-relief stage.
In 2015, in In re National Football League’s Sunday Ticket Antitrust Litigation, four plaintiffs filed a class action lawsuit against the National Football League (NFL) alleging that the league violated antitrust laws through its contract with NFL Sunday Ticket—a programming package that the NFL advertises as “the ultimate fan experience.” Although the Sports Broadcasting Act has long protected the NFL from antitrust challenges to its telecasting contracts, some of these contracts, like the one with NFL Sunday Ticket, may not fall under its purview. The case is currently working through the appeals process, and its implications could completely alter the American sports broadcasting landscape. This Note examines the consequences of both potential outcomes of the litigation, ultimately arguing that a ruling for the plaintiffs would create a more competitive market for broadcasting rights which would benefit consumers. Additionally, because the NFL and other professional sports leagues are now multi-billion-dollar industries, this Note argues that Congress should repeal the Sports Broadcasting Act to create a legal landscape that best accomplishes the goals of the Sherman Antitrust Act.
In the United States, privacy at death is not a right; privacy at death is a privilege purchased through the use of a trust. The legal system grants privacy at death but only to those who can afford it. The vast majority of Americans, those who devise their assets through wills or die intestate, must engage in a public probate proceeding that exposes the details of their estates to the public. The result is a dual-track system of succession—one that sells privacy to the ultra-wealthy and one that requires full transparency for everyone else. Over the past two decades, state legislatures and courts have strengthened estate privacy in trust law by eliminating trust registration requirements, enhancing protections of trusts in land records, and creating silent and perpetual trusts. These reforms have been lauded as promoting efficiency and honoring decedent intent. They have been adopted with little public scrutiny and have disproportionately benefited wealthier individuals, enabling the transfer of assets in secrecy and (in some cases) facilitating fraud, abuse, and/or lack of accountability. This Article examines the legal and policy foundations of trust and estate privacy, highlighting how the current system exacerbates economic inequality and denies privacy at death to most Americans. It advocates for reform to both curb abuse and expand privacy interests after death. First, the Article proposes requiring modest disclosures in trust administration to protect beneficiaries and deter misconduct. Second, it argues that privacy protections should be expanded for those who use the probate system. By addressing the asymmetries in privacy access at death and proposing reforms on both sides of the succession divide, this Article offers a new framework for evaluating the role of privacy at death. With trust law increasingly becoming the domain of the wealthy and probate records increasingly becoming digitized and easily searchable, this is a pivotal moment to grant privacy at death to all.
The Roberts Court has veered sharply in a culturally conservative direction. More specifically, traditional solidarities of faith, family, and nation have been elevated as a constitutional matter above the individual autonomy interests that motivated the liberal Justices who steered the Court in the post-war decades. The Supreme Court’s jurisprudence in this register complements, and is reinforced by, changes in public law more generally—for example, in recent executive orders from the Trump Administration that amplify the same values. In legal scholarship, this jurisprudential shift is pervasively framed in terms of domestic electoral politics, particularly as a product of Republican dominance of the presidency and the Senate at key moments. But open out the analytic lens a few notches, and it quickly becomes clear that the Roberts Court’s new emphasis on values of family, faith, and nation is in no way unique to the United States today. It is embedded in, and contributing to, a global phase shift in public law. Across many different countries, basic legal norms are moving sharply in the same culturally conservative direction. While the American Supreme Court is an influential participant in this global turn against legal liberalism, other nations’ courts, and legal advocacy organizations, have also adopted their own culturally conservative results. The Roberts Court hence must be understood as just one element of a larger, and even more dramatic worldwide change in public law more generally. This Article analyzes this international dimension of the Roberts Court’s turn to family, faith, and nation. It first situates our local shift in constitutional jurisprudence in the context of a broader jurisprudential pivot toward illiberal ends across diverse geographic and cultural domain—including Europe, Latin America, the Middle East, Africa, and Asia. We then offer an analytic framework for understanding the observed causes and effects of this global shift toward illiberal basic law. We show that this movement has no single, dominant causal pathway, but that there are several different “diffusion” mechanisms, including common causes and self-reinforcing feedback mechanisms. Nations experiencing an illiberal legal shift are subject to common political and socioeconomic pressures. Further, judges and political actors learn from peer institutions, or via transnational networks of political activists. Our analysis yields a more robust causal account of the emergence of a distinctively illiberal shift in constitutional jurisprudence, not just in the United States, but globally—and a sharper account of the Roberts Court’s role in that startling, novel international context. Hardly an outlier, the American Supreme Court reflects a dramatic sea change in global public law, toward illiberalism.
