Volume 101, Number 1

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces the understudied and undertheorized private prosecutions of the family regulation system and situates them within the carceral state. Drawing on sources including statutes, legislative history, case law, accounts developed by other scholars, information obtained through records requests, and interviews with practitioners and state officials, it sketches out the legal framework for these prosecutions and traces recurring patterns of use. This study reveals private prosecutions to be a tool of last resort: Private individuals opt to prosecute their loved ones—or even themselves—after the state has failed to meet their needs through other means.

The Article makes two contributions. First, it develops an initial descriptive account of private prosecutions in the family regulation system. Second, the Article builds from that account to develop a theoretical claim. It argues that private prosecution illustrates the state’s decision to operate an expansive carceral state in place of a robust welfare state. Moreover, private prosecution lays bare the central role of private individuals in maintaining and expanding the carceral state, as private prosecutors increase the reach of the carceral apparatus while entrenching its logics. But even as private prosecutions shore up the carceral state, so too do they allow private individuals to extract support from it. As debates around the utility of private prosecution and enforcement across the carceral state continue, private dependency prosecutions offer a reminder. Before evaluating the utility of private prosecution, we must ask its goal: to disrupt the carceral state or to provide immediate relief to some already suffering in its thrall.

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and offers a set of concrete proposals for reforming IP through expanding and adapting its terminal rules. Finally, the Article considers what lessons, if any, traditional property law might learn from how IP ends.

Since the Tax Revolt of the 1970s, cash-strapped state and local governments have increasingly relied on user fees to pay for public programs. Scholars attuned to city budgets have raised alarms about these fees: They undermine government’s redistributive role, impose regressive costs, and exclude low-income people from vital public services. This Article complicates these prevailing claims based on a first-of-its-kind study of user fee policies in a sample of American cities.

The Article reveals that policymakers regularly call on a progressive tool to reduce fees’ harms: fee waivers. As implemented, user fees are thus more redistributive than the standard understanding of them has allowed. But they are also more complex. The survey finds that fee waiver eligibility rules are patchwork, burdensome, and narrowly targeted. User fee rules form a multifaceted tapestry of exclusion and protection, deprivation and generosity.

The Article also sounds a clarion call: User fees’ protective features are not guaranteed. Without adequate defense, fee waivers risk succumbing to external attack from those who would outlaw them. Without adequate scrutiny, they risk falling victim to their own internal design flaws. The Article addresses these risks by offering reform principles drawn from model programs surveyed across the country. Mayors, city councils, school boards, and state legislatures can use this Article as a playbook to inform the design of user fees that raise revenue while protecting vulnerable American households.

In the past ten years, jurisdictions across the United States have witnessed an explosion of fossil-fuel-industry-backed laws targeting anti-pipeline and anti-critical infrastructure protestors. In passing these laws, state legislators throughout the country have sought to criminally punish activists who dissent against the construction of infrastructure sites atop their homes and in their neighborhoods. These activists resist a trend in which local governments designate their communities as “sacrifice zones.” In these areas, local governments allow companies to build polluting industries and facilities that subject residents to severe health and safety risks. Because these infrastructure sites disproportionately displace and harm communities of color, some have deemed this practice “the new Jim Crow” and have argued that it functions as a relic of slavery. In cracking down on these communities’ opposition to the creation of sacrifice zones, state legislatures and the oil and gas industry silence Black- and Indigenous-led racial justice movements across the country.

Using dissent in sacrifice zones as an example, this Note argues that modern suppression of racial justice advocacy hearkens back to a long tradition of silencing movements that promote racial equality. This repressive practice traces its roots back to pre-abolition times. As this Note explicates, the Framers of the Thirteenth Amendment (which formally abolished slavery) sought to curtail such speech- silencing efforts. Thus, suppression of racial justice advocacy—and specifically, suppression of anti-sacrifice zone advocacy—should be considered a “badge and incident of slavery” violative of the Thirteenth Amendment.

This Note offers two Thirteenth Amendment avenues for challenging what this Note calls “sacrifice zone speech suppression,” a subset of anti-protest speech suppression aimed at silencing dissent in sacrifice zones specifically. First and foremost, this Note proposes a litigation pathway, and second, it proposes a legislative pathway. In proposing these solutions, this Note shares the hope of the many activists who have spent years, decades, and centuries fighting for an end to the legacies of slavery: the conviction that, in the words of Bill Quigley, “justice is possible.”

State constitutions promise what the federal Constitution does not: affirmative guarantees of democratic participation, among a broad array of positive rights. But state courts tasked with enforcing those rights routinely fail to properly engage with their constitutions, defaulting instead to the federal judiciary’s clause-isolation and tiered scrutiny. The result is a methodological mismatch that allows state legislatures, many of them elected by a plurality or minority of their state’s voters, to erode democratic rights unchecked. This Note argues that the Michigan Supreme Court charted an independent path in Mothering Justice v. Attorney General, where it struck down an unaccountable legislature’s gutting of two voter-initiated laws by reasoning holistically about Michigan’s constitutional commitment to democracy. Drawing on the work of Professors Bulman-Pozen and Seifter—who identified the democracy principle as a synthesis of state constitutional commitments to popular sovereignty, majority rule, and political equality; proposed democratic proportionality review, which asks whether the burdens a law places on democratic participation are proportionate to and justified by the government’s legitimate objective, as an alternative to federal methods; and coined the term “methodological lockstepping” to describe the problem—this Note uses Mothering Justice as a prototype of the judicial application of a new framework.

Upon the foundation that Mothering Justice laid, this Note constructs a three-part doctrinal test: (1) assess the strength of the state constitution’s commitment to the democracy principle; (2) balance the burden on a democratic right against the legislature’s justification for imposing it; and (3) craft a “remedy-plus” that resolves the immediate dispute while establishing prospective safeguards against recurrence. Applied to voter identification laws and partisan gerrymandering, the test reveals at once its range and its aim: to equip state courts with a structured, state-grounded framework for curbing legislatures that have themselves sought to limit the sovereignty and power of the very people who elect them and whose rights their constitutions enshrine.

“It is also that, in the constitution of that Other of Europe, great care was taken to obliterate the textual ingredients with which such a subject could cathect, could occupy (invest?) its itinerary—not only by ideological and scientific production, but also by the institution of the law.”

Legal history transforms stories into state-backed power. Courts, acting as historical exegete, foreclose possible historical worlds to create law. However, in recent years, the kind of “history and tradition” courts and originalists have been prepared to grace with legal meaning has become myopic. This is so not just because of the limited range of historical subjects on which courts have focused their attention, but also because of the normative questions originalist methodology eschews and the teleology it obscures. However, originalism need not have the final word on legal history.

This Note will argue that one way to move beyond originalism and toward liberatory legal meaning is to embrace a postcolonial approach to American legal history—a postcolonial legal historiography. Certainly, this approach, like postcolonial theory more broadly, seeks to understand the world in relationship to the history of imperialism and colonial rule. But that understanding requires more than just a critique of what history is told. A postcolonial legal historiography requires a radical shift in methods—especially relative to how originalism engages in legal historiography. To illustrate how different a postcolonial historiographical inquiry could be, this Note will discuss the debates engendered by the Subaltern Studies Group, a group of postcolonial historians who raised issues of representation in traditional historiographies of India. While those debates occurred decades ago and are just one facet of postcolonial approaches to telling history, I argue that looking at them afresh might allow advocates to chart a way out of originalism.

This Note will proceed in four parts. Part I will briefly summarize originalism’s methodology and justification before moving into an overview of two of its critiques, with an eye toward underscoring what might already be obvious: Originalism prevents liberatory approaches to legal history from emerging. Part II will introduce postcolonial approaches to historiography, focusing on the discourse around the Subaltern Studies Group and, in particular, the tensions between two giants of postcolonial studies: Ranajit Guha and Gayatri Spivak. Guha’s and Spivak’s respective contributions and disagreements offer alternative answers for how and why we engage in historical inquiry. Part III will then compare and contrast postcolonial historiography with originalism and argue that postcolonial historiography has a stronger answer to the questions of how and why we do legal history in the first place, particularly for those interested in liberatory legal meaning. Part IV will conclude by briefly examining how a postcolonial approach to American legal history might create alternative and liberatory legal meanings—especially as questions of colonialism and conquest begin to take a more prominent role in domestic American legal scholarship.