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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.”

“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.

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the physical copy.

This Article argues that the conventional wisdom is radically blinkered. It shows that, contrary to popular belief, courts increasingly struggle to separate the intangible work from its physical form. In reality, the supposed divide between the work and the copy is far less rigid, and decidedly more contested, than scholars have recognized. Judges and commentators often confuse the physical object—a biological substance, a written-down recipe, a computer program, a physical building, a living garden, a copy of a work of visual art—for the intangible work itself. The result is a thickly tangled, sometimes messy, and deeply incoherent body of law.

This Article synthesizes history, theory, and current doctrine to critically analyze these trends. It traces the roots of the intangible/physical dichotomy. It explores how twentieth-century courts navigated this distinction and demonstrates that modern courts remain sharply divided over how to define the intangible work. These disagreements reflect confusion about the kinds of objects that could be eligible for copyright protection. In the end, I argue that this confusion raises fundamental questions about the limits of our copyright system. By grappling with these questions, this Article seeks to advance a new analytical paradigm for thinking about the trajectory, coherence, and breadth of copyright law.

In this Note I undertake a historical survey of the conceptual predecessors to the Fourteenth Amendment’s Privileges or Immunities Clause, from the sixteenth century through the mid-nineteenth century. By doing so I present a different angle on the potential significance of this provision, which merits revisitation as a clause bearing meaningful judicially cognizable rights, despite its effective foreclosure under the Slaughter-House Cases. Because of the open-ended and adaptive quality of this enigmatic phrase and its preceding variants, it bore a wide range of significances over the centuries. Indeed, as this Note also demonstrates, one can trace critical moments in early American history alongside varying uses of this phrase, further indicating its previously evolutionary quality. In its earliest forms, it implied the British Crown’s support for the development of colonies in the New World, and soon thereafter, it served as a vehicle for establishing individual rights akin to those of the Magna Carta. It also generated newfound rights that provided justification for the American Revolution and was used to advance unity among the states of the new nation, especially for the sake of economic development.

In the decades prior to the Civil War, its meaning was shaped by the pressing issue of slavery. Justice Bushrod Washington’s limiting construction of the Privileges and Immunities Clause in Corfield v. Coryell, I propose, was centrally informed by the debates leading to the Missouri Compromise, in which slaveholding as a protected right under privileges and immunities was a key point of contention. Because Corfield implicitly truncated the basis for asserting a right to slaveholding via privileges and immunities, the Court in Dred Scott, dominated by Southern justices, focused on excluding access to such rights based on immutable characteristics.

The Southern preference for broad rights and narrow access, however, was definitively defeated through war. It is thus uncertain whether a historically informed meaning of the Privileges or Immunities Clause necessarily turns on the disputes in the decades immediately leading to the Fourteenth Amendment’s ratification—which would suggest a fixed and narrow construction aligned with Corfield—or whether the deeper, evolutionary history of privileges and immunities lends a meaningful gloss on the clause, counseling a broader and more expansive interpretation. The Fourteenth Amendment’s legislative history is ambiguous at best, providing fodder for both possible readings.

While confronting these uncertainties, this Note draws from a historical method not previously deployed for the purpose of grasping the fuller meaning of this constitutional provision: It undertakes a longue durée approach, accounting for the variations of this phrase’s significance across time and as affected by a dynamic multiplicity of inputs. Most claims regarding the meaning of this clause tend to pinpoint one or several moments in its long history as the “true” origin point(s). A historical sense of privileges and immunities derived through this method, however, indicates that reaching a determination on the breadth of rights conveyed through this provision entails the resolution of a close call, requiring careful sifting of historical data, perhaps paired with other constitutional principles and policy considerations.

Less than two years after the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, the landmark decision recognizing a right to choose abortion, a campaign to reverse Dobbs and reestablish a new right to reproductive autonomy has taken shape. This emerging strategy deploys what this Article calls state constitutional incrementalism: an effort to chip away at a federal precedent by scoring wins in state supreme courts.

This Article explores the promises and perils of state constitutional incrementalism, using reproductive rights, both past and present, as a critical case study. It traces the history of antiabortion incrementalism, with special attention to state courts, and then explores how contemporary abortion-rights advocates have drawn on the lessons of the past (among others) to reverse engineer this campaign in the present day. Two incrementalist strategies have emerged in state court as a result: efforts to secure state constitutional protections for abortion and to highlight the inadequacy of exceptions to state abortion bans. These efforts are incremental in more than one sense. None of them directly challenge federal precedent. In the short term, however, both promise to change the reality on the ground, state by state. And both can set the stage for a later challenge to a federal precedent.

A complicated picture of the costs and benefits of state constitutional incrementalism emerges from this study. State constitutional incrementalism can offer powerful evidence of the internal contradictions and unworkability of state precedents that echo a federal decision or state laws that a federal precedent permits. State constitutional incrementalism also facilitates experimentation with different jurisprudential foundations for constitutional rights. These experiments can afford a rare glimpse of the real-world efficacy of different approaches to liberty and equality. And a critical mass of state constitutional decisions can provide evidence of an “evolving,” popular understanding of the constitutional protections that may also matter in the federal context.

At the same time, however, the success of state reproductive-rights incrementalism, much like the fight to reverse Roe, will depend a great deal on the responsiveness of state courts to popular mobilizations for constitutional change. History shows that the incrementalist campaign to undo Roe owed as much to gerrymandering, efforts to deregulate campaign spending, and strategies to limit access to the vote than it did to lower court victories or incrementalist litigation. A new effort to restore reproductive rights will have to attend as closely to the same kinds of structural change.

Legal scholars have long debated the President’s authority over administrative agencies. However, these narratives have ignored that Presidents have assumed directive control for decades—via the National Security Council. This Note fills that void in two ways. First, it provides a historical account. It reviews available national security directives and assesses their role in instigating administrative action. It reveals that, over time, Presidents have increasingly invoked these directives to mold domestic and economic policy. Second, this Note evaluates national security directives under three models of presidential authority: the unitary executive theory, Justice Elena Kagan’s notion of implied statutory authorization, and Professor Kevin Stack’s requirement of explicit statutory permission. It determines that all three theories sanction the President’s deployment of national security directives to control agencies and shape domestic affairs. This Note concludes that by providing a firm constitutional and statutory footing from which a President can dictate administrative action, national security directives are a powerful and expanding presidential tool.

Over the last fifty years, the Republican Party has gradually claimed a majority of state legislative seats and chambers. What explains this? Scholars point to Republican grassroots mobilization of conservative voters in the late-twentieth century. This Essay adds another explanation: Republicans win disproportionate state legislative seat shares by winning rural districts by narrow, efficient margins and by changing state legislative redistricting practices, sometimes by state constitutional amendment. This Essay recounts this history, noting how in the mid-twentieth century, rural-dominated state legislatures failed to mandate fair, regular reapportionment, prompting the Supreme Court in 1964 to force the states to reapportion their legislatures and entrench fair redistricting and voting rights provisions in their state constitutions. Reapportionment added conservative, suburban districts, expanding Republicans’ state legislative seat share in the 1970s, 1980s, and 1990s. With subsequent urban-rural polarization and realignment, Republicans began winning rural districts by narrow, efficient margins, while Democrats won urban districts by wide, inefficient margins, letting Republicans win a greater statewide legislative seat share than popular vote share. Insulated from the popular vote, especially in competitive states, Republican state legislators entrenched their seats by changing elections and redistricting practices, sometimes through state constitutional reform that weakened earlier voting rights and redistricting provisions.

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.

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.