Volume 99, Number 5

The last decade has seen renewed debate, much of it between feminists, about workplace and school regulation of sexual conduct. Those debates proceed on the assumption that institutions distinguish permissible sex from impermissible sex based on whether it is consensual or, in civil rights parlance, “welcome.” The person at greatest risk of punishment by an employer or school, it would then appear, is the heterosexual man who seeks sex with women and who, allegedly, transgresses the bounds of their consent. This story, though, is incomplete. Workplaces and schools have long punished workers and students for having sex that is indisputably consensual but nonetheless undesirable to the institution. This sanctioned conduct includes premarital sex, commercial sex, “kinky” sex, sex with colleagues, and sex on work or school premises. And case law and public accounts suggest those punished for at least some of these offenses disproportionately include women, girls, and queer people, some of whom have filed sex discrimination lawsuits.

This Article argues that both litigants and critics would benefit from situating these modes of punishment within the broader regime of gendered sexual regulation by workplaces and schools. For litigants, that context may open new doctrinal pathways to challenge sanctions for consensual sex under sex discrimination laws. It illuminates, for example, that the reasons defendants give to defend the punishments they levy—essentially, that they object to plaintiffs’ conduct, in putative contrast to their protected characteristics—are sometimes themselves discriminatory. And for critics of institutional sexual regulation, consideration of these forms of punishment would serve a clarifying and corrective function, promoting a more accurate vision of gendered power and highlighting nuance in the relationship between sex equality and punishment.

This Article frames the problem of capital taxation as a dilemma of the middle of history. At the “beginning of history”—before any wealth inequality has emerged and before individuals have made any saving choices—the much-cited Atkinson-Stiglitz theorem teaches that the optimal capital tax is zero. At the “end of history”—after individuals have made all of their saving choices—the optimal capital tax is generally agreed to be 100%, since a capital tax today cannot distort decisions made in the past. Neither result tells us how to proceed in the “middle of history”—after significant wealth inequality has emerged but while the shadow of the future still looms large. Yet absent an imminent apocalypse, the “middle of history” is the temporal reality with which our tax policies must contend.

The central question for capital taxation in the middle of history is how governments today can respond to accumulated inequalities while credibly committing to future tax trajectories. This Article focuses on three factors—institutions, inequality, and ideas—that mediate the relationship between past and present policy and expectations of future policy. Exploring these three mediating factors in deep detail can enrich our positive understanding of capital taxation’s real-world effects while refining our normative views about optimal capital tax design. Economic reasoning proves useful to this inquiry, but the Article also emphasizes the importance of integrating perspectives from history, political science, sociology, and—not least—law into a holistic account of capital taxation and credible commitment.

The analytical payoffs from such an approach are far-reaching. For example, a middle-of-history perspective complicates the conventional wisdom regarding the relationship between capital taxation and investment incentives: Capital tax cuts—which are typically thought to incentivize investment—may have the reverse effect when they undermine public confidence in the political stability of a low-capital-tax regime. Beyond the implications for tax, a middle-of-history perspective can yield lessons for—and derive lessons from—fields ranging from criminal justice to intellectual property, which face credible commitment problems comparable to tax’s dilemma. The challenge of sustaining credible commitment when policymakers’ incentives are time inconsistent is not just a problem of capital taxation in the middle of history but a more general problem of law in the middle of history.

The American carceral state has grown exponentially over the last six decades, earning the United States a place of notoriety among the world’s leaders in incarceration. That unprecedented growth has been fueled by a cultural addiction to carceral logic and its tools—police, prosecution, jails, prisons, and punishment—as a one-size-fits- all response to the myriad vectors of socioeconomic disadvantage that drive people into the jaws of the criminal legal system. The system operates in the shadow of endemic racial inequality, feeding on the conflated amalgam of race, criminality, and dangerousness. For those who experience the worst of what the system has to offer, it is little more than a purveyor of harm and injustice, deepening the inequality that characterizes America.

The modern public defender was born before the rise of mass incarceration and criminalization and has evolved ever since, from helpmate to the criminal system to a zealous advocate for the accused. The last major evolutionary turn transformed public defenders into a bulwark against America’s penal impulses, defending people against the state while working holistically to address the range of legal and social needs that drive criminal legal system involvement. Recent years have witnessed a growing willingness to grapple with abolition as a strategy and vision, and with it an increasing recognition that being a bulwark—while an essential feature of public defense—is simply not enough to upend the status quo. In this Article, I contend that public defense can and should embrace an abolitionist ethic. I do so because I believe that an abolitionist ethic orients the work of public defenders more pointedly at the interlocking structural causes that lead people into the clutches of the criminal system, and it directs sustained energy at its oppressive nature, ultimately benefitting the people and the communities that public defenders serve.

What does an abolitionist ethic mean for a public defender? Fundamentally, it is a merger of retail-scale zealous criminal defense with wholesale structural change aimed at dismantling the criminal system. Beyond that, it means building a world in which police, jails, and prisons are obsolete. And it employs frameworks and advocacy tools that are accessible to public defense. A public defender’s abolitionist ethic combines a racial justice lens informed by Critical Race Theory to understand the forces that animate the criminal system; zealous holistic defense of individuals infused with the spirit of resistance lawyering; movement lawyering to support social justice advocacy aimed at reducing the size, scope, and scale of the system on the way to dismantling it; and organized efforts to render the carceral state dispensable.

Shifting the paradigm of public defense and the work of public defenders is no easy task. Indeed, it is laden with challenges. Inadequate funding, the skepticism that travels with abolition, the sheer difficulty of criminal defense work, and the seemingly intractable nature of the criminal system can make the turn to an abolitionist ethic seem like a fruitless pursuit. For the public defender, those challenges cannot be the end of the story. The lessons that flow from the centuries-long struggle for racial justice, where abolition was born, teach us that—as organizer and activist Mariame Kaba says—“hope is a discipline.” By nature, public defense work rests on that discipline. Defenders fight against long odds in an unforgiving system. They do so for a host of reasons, among them the hope that what they do will make a difference in the broader fight for the dignity and humanity of those they represent. Defenders must draw on that same sensibility in pursuit of the world that those whom they defend—and all of us—deserve.

In this Note, I challenge three dominant theories behind property tax exemptions for university housing—the “Quid-Pro-Quo,” “Sovereignty,” and, what I call, “Oxbridge” theories—and propose that only undergrad housing should be tax-exempt. My proposal would recognize the unique educational value of undergrad housing, help reduce town-gown tensions, and be easy to apply.

Data makes the world go round. Now more than ever, routine police work depends on the collection and analysis of digital information. Law enforcement agencies possess vast sums of intel on who we are, where we go, and what we do. The proliferation of digital technology has transformed federal criminal procedure—from how police investigate crimes to how prosecutors prove them at trial. Courts and commentators have written much about the first part, but less so about the second. Together, they represent two sides of the same problem: constitutional doctrine lagging behind new technology, leading to suboptimal constraints on law enforcement conduct.

This Note explores the effects of digital technology on the nature and scope of federal prosecutors’ disclosure obligations under Brady v. Maryland. As police pass along more data to prosecutors—usually terabytes at a time—prosecutors face the difficult task of sifting through mountains of evidence to determine what is exculpatory or otherwise favorable to the defense. Often, prosecutors turn over their entire case file, knowing full well that defense counsel will fare no better. This state of affairs puts our adversarial system on shaky ground. This Note urges district courts to exercise greater oversight of the discovery process, requiring prosecutors to take reasonable precautions so exculpatory evidence comes to light.

Our tax code is stuck in the Middle Ages. The Internal Revenue Code (“the Code”), codified at 26 U.S.C., uses the concepts of addition, subtraction, multiplication, and division, as one might expect of a tax code. But, disdaining the 1500s invention of the elementary math symbols ‘+,’ ‘–,’ ‘×,’ and ‘÷,’ the Code instead uses complicated English constructions such as “any amount of X which bears the same ratio to that amount as Y bears to Z.”

I propose that we use these elementary math symbols in our tax laws. To see whether this would increase the laws’ legibility, I conducted a preregistered, randomized, controlled trial involving 161 participants. One group received the actual Code, the other, a translation using math symbols. Both groups were asked to solve the same two Code-based tax problems. For the first problem, use of the translation with math symbols increased answer accuracy from 25% to 70%. For the second problem, answer accuracy increased from 11% to 50%.

This result, I argue, can be extrapolated to the broader population and to the Code as a whole, confirming the plausible intuition that math symbols would increase the understandability of the Code. I then argue that this would be a good thing, answering various objections along the way, with a particular appeal to the rule of law and the spirit of democracy. People ought to be able to understand the laws that govern them.

When an employer violates minimum wage and overtime laws, the Fair Labor Standards Act (FLSA) empowers a worker to bring a collective action on behalf of themselves and their affected coworkers. As an early step in such suits, courts authorize notice to the plaintiff’s coworkers so that they can join the litigation. However, employers increasingly require workers, as a condition of employment, to agree to arbitrate such claims and waive the right to sue in court under the FLSA. Courts in several circuits have begun to go along with employers who have pointed to alleged arbitration agreements as a reason the court should not notify a plaintiff’s coworkers of an ongoing suit. This Note explains that courts should reject this reasoning and argues that preventing workers—even those purportedly bound to arbitration—from learning of a collective action is contrary to the goals of the FLSA and the Supreme Court’s original rationale for authorizing lower courts to issue notice. Rather, notifying arbitration-bound plaintiffs of FLSA collective actions will result in more efficient and effective resolutions of lawsuits alleging minimum wage and overtime violations.

Since the end of the Civil War, courts consistently misread and under-utilized the historical sources available when interpreting the scope and meaning of the Reconstruction Amendments. Even as historians updated their understandings of Reconstruction history, the courts lagged, shackling themselves to incorrect historical accounts and outdated precedents.

Entering the twenty-first century, the Supreme Court engaged in a more thorough historical review of Reconstruction, prompting historians to question whether the Court was beginning to finally utilize Reconstruction history correctly. Students for Fair Admissions answers this question: No. This Note describes the history of the Court’s limited review of Reconstruction sources, notes the perceived shift to increased historical review in more recent cases, and outlines Students for Fair Admissions and its uniquely extensive, yet still underwhelming, review of history. Finally, and most crucially, this Note points to sources that were easily accessible to and missing from the opinions in Students for Fair Admissions to argue that the Court continues to misinterpret the meaning of the Fourteenth Amendment through a flawed approach to Reconstruction history.