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Since our nation’s founding, the private sex lives of politicians have been a consistent topic of public concern. Sex scandals, such as those involving Alexander Hamilton, Bill Clinton, and Donald Trump, have consumed the focus of the public. With the advent of the internet and social media, details of a politician’s sex life often come accompanied by photo or video evidence. Outside of the election context, when someone shares an individual’s private explicit material without their consent, the leaker has committed the crime of “revenge porn.”

Recent high-profile incidents have raised the question of whether the crime of revenge porn can still be prosecuted when the disclosure of private explicit materials involves a political candidate. In the election context, unique First Amendment concerns about chilling political speech result in heightened speech protections. Before prosecuting a case, prosecutors must grapple with the question: Does the First Amendment protect revenge porn when it is used to influence an election? This Essay argues that the special First Amendment concerns about elections are diminished in the revenge porn context: The statutes are already tailored to address those concerns, and the state’s independent interest in enforcing revenge porn laws is still compelling. As such, it concludes that the First Amendment should not have extra force in a revenge porn case just because the disclosure occurred in the context of an election.

For over two hundred years of Supreme Court doctrine, judges and scholars have tried to figure out how the Court’s rulings impact ordinary citizens. Yet the answers often seem to depend on whose opinion or even which press releases you read. How can we actually measure the consequences of constitutional decisions?

This Article provides a new methodological inroad to this thicket—one which triangulates a nationwide field experiment, a longitudinal public opinion survey, and litigation-outcome analysis. We do so while focusing on a recent set of developments at the intersection of religious freedom and anti-discrimination law that transpired in Fulton v. City of Philadelphia (2021).

We find that Supreme Court decisions can have substantial behavioral and legal effects beyond a seemingly narrow holding. In Fulton, the Court avoided deciding the equality-religion conflict at the heart of the case for a fact-specific decision that should have been easy to circumvent. Yet our results suggest that the Court’s audience focused on the bottom-line message of the decision rather than the holding. Across the nation, foster care agencies became less responsive to same-sex couples. The public became more supportive of religious service refusals. And courts and litigants resolved all open disputes between equality-seeking governments and refusing religious agencies in favor of the agencies.

Our findings contribute to the development of an empirical approach to constitutional doctrine. Constitutional questions often require determining whether the harm to, or burden on, an individual or group is justified by a compelling state interest— and whether the means are narrowly tailored to that end. These tests often hinge on evidence, yet the Court rarely offers parties guidelines for substantiating their interests at the right level of precision. Our work provides both data and empirical tools that inform the application of this test in the realm of free exercise doctrine, equality law, and beyond.

Sovereign immunity statutes set the boundaries of liability for tortious conduct by state government actors. Legislatures can shield state entities and agents from liability for a wide range of tortious conduct. They can even—as some states have—waive immunity to the extent of liability insurance coverage. These restrictive statutory immunity schemes can facilitate discretion and prevent the overdeterrence of helpful conduct. But by preventing state courts from hearing certain claims of tortious conduct, such schemes effectively leave injured plaintiffs in the lurch and future misconduct undeterred. This Note argues that legislatures should allow courts more leeway to set the standard of care for state government tortfeasors. Stripping courts of their capacity to adjudicate cases of garden-variety misconduct by government actors is misguided. By applying the “public duty doctrine”—a default rule that the government owes no general duty of care in tort to the public at large—courts can negotiate the interests that animate restrictive sovereign immunity statutes. This court-centered approach would fill gaps in civil damages liability under federal constitutional law that otherwise leave government negligence unremedied and undeterred. Moreover, it would let courts adapt the common law to define the scope of the government’s duties to the public.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows that Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship.

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach, interbranch agreement, and interparty consensus. Legal-culturally, it has in places evinced a decline in legal rationality. Although these developments do not rival the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in times of conflict, and reflects on what comes next in the new global conflict, and how best to shape it.

Over the last few years, numerous states and school boards have passed laws aimed at limiting curricula related to diverse communities. Anti-Critical Race Theory and “Don’t Say Gay” laws have threatened to restrict the teaching of race and LGBTQ issues in K-12 schools. These laws are troubling from a policy standpoint because inclusive curricula ensure that students receive a proper education and are taught in a supportive school environment. They are also likely an infringement upon a student’s First Amendment right to receive information, first recognized in Board of Education v. Pico, and, as such, courts have begun to entertain constitutional claims against curricular restrictions. However, there is no binding precedent on this issue, and the circuits are split as to what standard they should use when addressing these challenges.

This Note argues that courts should follow the approach developed by the Ninth Circuit in Arce v. Douglas. Courts should extend Pico beyond its library context to hold that students have a First Amendment right to receive information in the curriculum they are taught. In evaluating whether a curriculum decision violates this right, courts should apply the standard laid out in Hazelwood School District v. Kuhlmeier: Courts should first require that state and local educational bodies justify that their curriculum restriction decisions were motivated by a “legitimate pedagogical concern” and courts should then inquire if such restrictions are “reasonably related” to that concern. This standard properly respects the deference states and localities are due in educational matters, while protecting students’ constitutional free speech rights. The standard also follows basic requirements of constitutional law: requiring justifications, reasonableness in those justifications, and proper process.

Assisted reproductive technology (ART), which encompasses fertility treatments in which eggs or embryos are handled, is a frontier of family law and reproductive justice, and developments in abortion jurisprudence may shape its borders. Abortion restrictions and other laws regulating pregnant people are often framed with rhetoric emphasizing fetal personhood or fetal rights. Now that abortion is legally unshielded from criminalization, the consequences of Dobbs will reach, as did fetal-personhood laws before, even those who are not seeking abortions. As commentators have observed, this collateral damage threatens to touch potential parents seeking to use ART. Yet so far, the most abortion-restrictive states tend to carve out protections for ART from their laws regarding fetuses. This Note argues that states touting fetal personhood protect ART users—while persecuting people who partake in a multitude of other types of conduct thought to harm fetuses—because ART furthers the creation of white, affluent families that suit these states’ normative values. Fetal personhood, then, is a tool for social control. Advocates of reproductive freedom should surface this truth in efforts to stave off the proliferation of fetal-personhood laws at the state and federal levels.

Federal courts have recently grappled with an issue that falls at the intersection of Article III standing and disability, and that presents critical questions about the future of litigation promoting societal change. The issue is whether a plaintiff with disabilities has standing to challenge the failure by a place of public accommodation to provide accessibility information on its website when the plaintiff lacks concrete plans to visit the establishment. The Supreme Court heard argument in a case presenting this question—Acheson Hotels v. Laufer—in October 2023, but two months later it ruled that the case must be dismissed as moot, for case-specific reasons. The Article III standing question therefore remains unresolved, to percolate in the lower courts and plausibly to return to the Supreme Court through another vehicle. The standing issue raises doctrinal quandaries because it reveals the fault line between two models of litigation: a “public- law” model that permits plaintiffs, often backed by interest groups, to use litigation to advance public aims; and a “private-right” model that treats as the default mode of litigation a suit by A against B in tort, property, or contract. This Essay unravels the doctrinal and conceptual threads of the standing issue raised in Acheson and similar cases, and it offers proposals for courts to resolve the issue in a way that would not broadly undermine public-law litigation.

Torres v. Madrid is a seminal Supreme Court decision that was decided during the 2021 Supreme Court term. Torres centered on whether a woman who was shot in the back by the police but managed to escape was seized under the Fourth Amendment. This was a decision that garnered widespread attention because it was decided during a national reckoning with police violence following the George Floyd protests. The Court ultimately held that Ms. Torres was seized the instant the bullet punctured her body. This was a win for the civil rights groups as it allowed Ms. Torres to pursue a remedy, but the decision did not go far enough. This Note focuses on a special class of seizures called attempted and “touchless” seizures, and argues that recognizing both attempted and touchless seizures under the Fourth Amendment will open the door to redressing a broader range of police misconduct.

While the Violence Against Women Act (VAWA) has long been venerated as a major legislative victory for those subjected to sexual and gender-based violence (S/GBV), VAWA is less often understood as the funding boon that it is for police, prosecutors, and prisons. A growing literature on the harms of carceral feminism has shown that VAWA has never ensured the safety of Black and Brown women; queer, trans, and gender-nonconforming people; sex workers; drug users; poor, working class, homeless, and housing insecure people; migrants; and others who do not fit the “everywoman” archetype; nor has it recognized their right to protect themselves from violence.

I contribute to this literature in three ways: First, drawing from the rich narrative traditions of critical race theory and critical legal studies, I tell untold and undertold stories of state violence against victims of S/GBV. Second, I weave together knowledge produced by scholars across disciplines, as well as by transformative justice organizers and practitioners, to situate my illustrations in a landscape of carceral violence. Third, I build on the written work of those scholars, organizers, and practitioners to propose transformative justice approaches to S/GBV. Specifically, I propose that we use VAWA to meet the demand that all criminalized survivors be freed by incentivizing the expanded use of state executives’ clemency powers, as well as by expanding the use of clemency at the federal level. I also argue that an anti-carceral VAWA must include financial reparations for criminalized survivors, as compensation for the harms that the state has inflicted on them through unjust prosecutions and imprisonment, as well as for the violence they have been forced to endure in prisons, jails, and the custody of police officers.