An interstate extradition crisis is brewing. As states increasingly criminalize conduct whose protection is a core public policy of other states, such as abortion, gender-affirming care, and gun possession, it appears imminent that a governor will receive an unwelcome extradition demand. Under many circumstances, federal law requires that governors arrest and extradite fugitives upon demand of the state from which they fled. This mandate presents a grave and immediate threat to interstate comity and the rule of law. There is, however, another way forward. The states may, through collective action, provide governors the power to reject unwelcome extradition demands without running afoul of the U.S. Constitution or federal law. Surprisingly, this end run would realign extradition practice with nearly two hundred years of history and tradition. From the nation's founding until the U.S. Supreme Court decided Puerto Rico v. Branstad in 1987, the federal government declined to enforce federal extradition law. To fill this vacuum, the states created laws and practices that diverged from federal law in many ways, including allowing governors to refuse extradition demands on equitable grounds. How well did this more flexible approach work in actual practice? An original analysis of newspaper coverage of equitable extradition refusals between 1930 and 1987 reveals that governors used this power judiciously: refusing extradition rarely and typically in cases featuring extraordinary facts. Though many of these cases touched on the most polarizing issues of their time-including Black refugees from chain gangs and lynch mobs in the Jim Crow South-even the most contentious refusals engendered only muted responses. Thus, the prior state-driven regime of extradition discretion seemingly succeeded in policing itself. In a moment when the Supreme Court increasingly turns to history and tradition to interpret the Constitution, in the extradition context, the states might turn to history and tradition to circumvent it.
The National Labor Relations Act (NLRA) deteriorates due to constitutional attacks and political sabotage. As labor law buckles, its preemption regime, a keystone of U.S. labor governance, has become unsustainable. This Article argues that, to survive, labor law must flip its federal default by empowering and expanding state-level labor institutions and by prying open the NLRA preemption doctrine. Eighteen states already maintain NLRA-like statutory frameworks, and fourteen more, as a state public policy, recognize workers' rights to unionize and act collectively. These under-examined laws hint at an alternative labor governance model in lieu of the NLRA. Building on emerging preemption challenges, weaknesses in federal enforcement, and employers' own challenges to the NLRA, this Article outlines legal strategies turning retreat into opportunity. After describing the slew of state private sector labor laws, this Article uncovers a hidden labor law principle against the use of preemption arguments that create regulatory "no-man's-lands," where workers have no recourse in state or federal labor law. It also introduces a "catch-22" argument, whereby employers who deny NLRA coverage or authority cannot shield themselves from state law with preemption arguments. Then, this Article explores how emerging state labor laws utilize novel trigger mechanisms and the ways regional cooperation can signal the outlines of a bottom-up labor governance model.
Commentators have leveled trenchant critiques of collateral consequences of criminal conviction, analogizing them to a form of "civil death." This Essay develops the related concept of "civil death by a thousand cuts" in two senses. First, penalties such as voting bans or deportation after a conviction are often just the tip of the iceberg. Second, a system of farflung, intertwined civil and criminal penalties portends the death of a civil society capable of recognizing and mediating excessive penalties. Recognizing how these penalties operate-and how difficult they can be to address-is a critical step toward creating a more proportionate criminal legal system.
Every year, Child Protective Services (CPS) agencies across the United States conduct more than 2,000,000 investigations into allegations of maltreatment-investigations that are invasive, traumatic, and disproportionately concentrated in poor Black and Brown communities. And yet 84 percent of these investigations fail to substantiate the allegations that prompted them. Of those that do, the overwhelming majority identify poverty-correlated neglect rather than intentional abuse. Why, then, does American society spend billions of dollars a year on this investigative apparatus, which can cause families significant harm, with so little to show for it? This Essay introduces a novel framework for answering that question: welfare theatre. Drawing on the concept of security theatre-policies designed to produce a feeling of safety regardless of their actual effectiveness-this Essay argues that CPS investigations function as a welfare theatre: a system of agencies, practices, norms, and popular narratives that perform a collective concern for child welfare irrespective of its actual impact on the children it claims to protect or the families it targets. This Essay traces the origins of the welfare theatre to a particular political moment in which the organized abandonment of Black and Brown communities was reconstituted as a child protection imperative, and in which the tools of investigation and surveillance were substituted for structural investments that might have materially addressed the conditions now labeled as neglect. This Essay identifies three central functions of family policing's welfare theatre: communicating to the non-policed public that the government is committing its resources to doing right by its children, individualizing collective harm by scrambling structural shortcomings into parental failure, and securitizing race-class marginalized families-compelling their compliance as the theatre's objects. This Essay concludes by surveying how impacted families have already begun to break the fourth wall and by proposing legal and policy reforms to shrink the stage.
