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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understandings of Reconstruction history, the courts lagged, shackling themselves to incorrect historical accounts and outdated precedents.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.

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.

Family law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life.

Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined.

This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth.

Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time.

Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent family with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental respon- sibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental rela- tionship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition.

First Amendment law is heavily influenced by a familiar set of policy considerations. Courts often defend their First Amendment rulings by referencing speech’s place within a “marketplace of ideas.” They consider whether speech facilitates self- governance or furthers society’s search for truth. They weigh the relative value of certain types of speech. And so on.

The Supreme Court has used these policy arguments to resolve and craft rules for many free speech dilemmas. But in some situations, existing policy arguments have generated rules and rulings that are incoherent, ineffective, or insufficient to address the underlying free speech problem. In this Article, we propose a new policy approach to aid courts in these situations. Specifically, we argue that in addition to traditional policy arguments, courts could and should use constitutive rhetorical theory when addressing and resolving today’s novel free speech dilemmas. Constitutive rhetorical theory views language as a process of meaning-making and culture building. It does not treat language only as a tool for persuasion or communication but instead emphasizes the ways language assigns value, creates communities, forges shared identities, and mediates human experiences. In this Article, we suggest that courts and legislatures should use constitutive rhetorical theory to supplement their traditional policy considerations. If judges take seriously the idea that language creates, rather than simply communicates, they might choose to restrict or protect speech not only because of its message or persuasive effects but also because of its constitutive, creative potential.

Our argument proceeds in four parts. In Part I, we review existing First Amendment policy arguments and describe their rhetorical underpinnings. We then present constitutive rhetorical theory as an alternative approach. In Part II, we discuss several contexts where the Court has hinted at, though not explicitly adopted, a constitutive rhetorical approach. In Part III, we apply a constitutive rhetorical lens to three First Amendment problems—hate speech, fighting words, and nonconsensual pornography—to show how the constitutive model might clarify or improve the law in those areas. In Part IV, we discuss the implications and limitations of our argument.

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.