This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it poses for beneficial variation in state property rules.

This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s underlying values better than competing theories.

Shifts in patent law’s enablement and written description requirements make it impractical for patentees of antibody technologies to disclose and claim their inventions. We describe this as a doctrinal paradox and offer a solution that gives patentees the power to claim antibodies without giving them unlimited control over a market.  

Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.  

This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutionally rely on sex-based stereotypes—including that transgender minors are merely confused.  

The new public nuisance is illegitimate because it violates the rule of law and is inconsistent with norms of democratic accountability. It also ignores the dangers of over- and under-deterrence associated with joint ventures between prosecutors and  personal-injury lawyers seeking massive damages from deep-pocketed defendants.

The groundbreaking environmental tort-litigation across the country has overlooked the potential role of tribal courts. Using an original empirical analysis of over 300 cases, this Essay outlines tribal-court jurisdiction over environmental-tort cases in the wake of attacks on tribal sovereignty in the form of tribal jurisdiction stripping. 

A court reviewing unlawful agency action, in deciding whether to “remand without vacatur,” considers the two factors of legal deficiency and undue disruption. Surveying diverging approaches to balancing these factors in environmental cases, this Essay proposes a reframing of the test that draws on parallels with preliminary relief.

This Article argues that public domain allotments (PDAs) are Indian Country and entitled to federal reserved water rights. By comparing federal statutes creating allotments and using the Indian Canons of Construction, the Article uses California as a case study to show that PDAs have rights to water outside state systems.

Social movements are engaged in prefigurative thinking, outside of the terms and constraints of our present moment of global climate emergency and democratic crisis. This Essay asks how we may teach ourselves—lawyers and law students—to work with social-movement organizations on projects that prefigure utopian social arrangements.

This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older constellation of ideas about federalism and fundamental law.  

Public nuisance is a puzzle: both a medieval action and a contemporary force in large-scale opioid settlements, it has provoked historical, formalist, and institutional objections. Close examination reveals, however, that public nuisance adheres to the common law’s accepted bounds and can play an important role in today’s regulatory landscape.

Restrictive voting laws not only infringe upon the rights of individual Native American citizens but also denigrate tribal sovereignty. This Note argues that to fulfill its trust obligation to tribes, Congress should require state election officials to form compacts with tribes governing the administration of federal elections.  

A key exception to the Fair Housing Act’s prohibition of familial-status discrimination has allowed municipalities to weaponize senior-only housing to block the construction of affordable housing and perpetuate segregation. This Note documents this practice, offers a framework for advocates to challenge it through litigation, and proposes policy solutions.

As communities harmed by multinational companies traverse the globe in search of remedy, they face diverse legal systems that are historically ill-equipped to meet their needs. This article explores the current legal context for such efforts in Global North jurisdictions and suggests some new and underutilized avenues for recourse.

This Essay considers the 2021 Supreme Court ruling in Nestlé USA, Inc. v. Doe to interrogate the importance of U.S. nationality in future Alien Tort Statute jurisdictional analysis, offering that the Supreme Court can still bring ATS jurisprudence back in line with history on the question of U.S.-actor liability.

This article discusses some of the challenges that may arise during transnational human-rights litigation against multinational corporations in U.S. courts. To complement these efforts, the author suggests utilizing the foreign legal assistance statute to strengthen human-rights cases promoting corporate accountability abroad.  

Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of constitutional drafting, and exercises of popular sovereignty.

This Article argues that the conventional wisdom about corporate raiders and activist hedge funds—lambasting raiders and praising activists—is wrong. The authors explain how activists are more likely than raiders to engage in mistargeting, implying they are also more likely to destroy value and, ultimately, social wealth.

This Book Review asks what comprises a well-functioning legal system in light of new evidence of how law operated across a wide historical panorama. Such contextualization has implications for a sound working definition of law, understanding law’s relation to the rule of law, and law’s role in emancipatory projects.  

The Constitution’s Port Preference Clause restricts Congress’s ability to favor “the Ports of one State over those of another.” This Note argues that the Jones Act, which prohibits foreign vessels from transporting goods between U.S. ports, violates the Clause by favoring West Coast ports over those of Alaska and Hawaii.  

This Essay examines the major questions doctrine’s relationship to the administrative-law jurisprudence of a man who helped develop it: Justice Breyer. Born of Breyer’s proposal to bring nuance into judicial review of agency action, the doctrine has taken on a life of its own much different than what he imagined.

Justice Stephen Breyer’s context-specific approach to judicial deference has prevailed in Supreme Court’s decisions to an underappreciated extent. Now the conservative majority is moving toward a no-deference rule. But they are unlikely to ultimately succeed because institutional pressure that then-Judge Breyer observed will drive courts to nevertheless consider context-based factors.

The Supreme Court is inventing a new brand of administrative law, in which the President holds all executive power, but the Court restricts and countermands agencies’ policymaking discretion. The Court thus takes a share of the executive power it assigns exclusively to the President. The result is constitutionally unsound.

Two deep-seated tendencies in U.S. immigration law are obstructing the expansive reforms long sought by movement actors: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.

What possibilities arise when law-school clinics experiment in challenging a well-oiled system at its untouched margins, within a collective, community-based movement whose lodestar is abolition? This Essay examines this question in the family-policing context and articulates a radical vision of family defense in subjudicial venues.

Carson v. Makin was yet another defeat for progressives in a brutal term. But just how bad was it? This Essay examines how Democratic lawmakers in Maine have already neutralized the ruling, teaching important lessons about how concerned Americans can best resist the Court’s conservative supermajority in the years ahead.

When Carson v. Makin allowed religious schools participation in educational-choice programs, the public-school establishment predicted dire results for marginalized students. This Essay responds to that prediction, exploring religious schools’ historical importance to marginalized students, the public-school establishment’s longstanding hostility to religious schools, and the establishment’s own role

Recently, the Supreme Court has chosen education as the primary stomping ground for rewriting Free Exercise Clause doctrine. It has framed education policies that prevented public funds from promoting religious indoctrination as discrimination. In the process, it has created a new victim—educational equity and adequacy for traditionally disadvantaged students.

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

The essay responds to Don R. Willett and Aaron Gordon’s Review of The Collapse of Constitutional Remedies.  I show that Willett and Gordon inaccurately describe Collapse’s main argument; offer an internally inconsistent critique; and fail to understand key terms such as judicial independence and the rule of law.

Local governments are deciding whether to retain modifications to the built environment implemented during the pandemic. While these sidewalk and street reconfigurations provide health and economic benefits, they also harm already-underrepresented community members. This Essay weighs these positive and negative implications to enable informed decision-making and create more equitable spaces.

COVID-19 posed an unprecedented challenge to housing stability. This Essay argues that the pandemic exposed the mismatch of affordable-housing programs (including housing voucher programs, tax credits, and emergency rental assistance) to short-term crises, whether personal or nationwide. Yet the pandemic also helped reveal what building a housing safety net requires.

This Essay reflects on the ways that cities engaged in “infrastructure sharing” during the pandemic, and the implications for the potential of cities to address infrastructure inequity. The Essay argues that while cities found creative ways to repurpose public spaces, more can be done to repurpose their proprietary assets.

This Essay considers the status of election law, as an academic field, and advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a baseline level of election services, to all voters.

The threat of election subversion has forced scholars into a rule-of-law pivot. This Essay identifies three prescriptive approaches dominating this discourse and explores their fundamental advantages and limitations. It then explains how the field of election law must further expand to respond to the multidimensional challenges posed by election subversion.

Many recent Supreme Court attacks on the administrative state have been rooted in an asserted effort to increase democratic accountability, or accountability to elected officials, whether the President or Congress. This approach neglects how the Constitution makes available a broader account of democracy that furnishes support for the administrative state. 

Scholars have long debated whether the administrative state is a democratic institution. This Article offers a new framework for analyzing this question—one drawn from agonistic democratic theory. It argues that agonism provides new grounding for the legitimacy of administrative agencies while also pointing to new horizons for reform.

This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to curb industry consolidation in Big Tech, social media, and elsewhere.

“Net zero” is the new organizing principle of climate action—but can it create politically, socially, and ecologically durable results? This Feature critiques net zero’s atomizing structure and sidelining of racial and social justice concerns. Its analysis offers pathways for improving public net-zero governance and reorienting private-sector climate commitments.

Although states set wages and regulate working conditions, NLRA-covered care workers are often restricted to bargaining with their private employers. To address this challenge, this Note argues that states should recognize their implicit joint-employer relationship with these workers, enabling care workers to bargain with the state over state-controlled employment conditions.

Ralph Baxter explains how state bars can alleviate America’s access-to-justice crisis by opening up the justice system to let more people participate. Baxter argues that America has the resources to serve everyone, contends that state bars have a duty to unleash those resources, and prescribes a process to do so.  

Whether nonlawyers should have ownership roles in law firms is a hotly debated topic. This Essay argues against rewriting existing ethical rules to permit nonlawyer ownership because it both fails to solve the access-to-justice problem, as advocates claim it will, and threatens the independence of the legal profession.

There’s a hole in efforts to create abortion “safe havens”: they fail to recognize that medical care increasingly leaves a digital trail that will easily make its way back to abortion-seekers’ home states.  Lawmakers and providers must act now to shield politicized medical records by addressing this “interoperability trap.”

Governor Abbott’s directive that the Texas Department of Family and Protective Services should investigate so-called “abusive sex change procedures” fits within a broader project of weaponizing fear to control marginalized families. The issue is not primarily the directive’s misuse of the family regulation system but the system itself. 

Although local governments aren’t entitled to qualified immunity, four circuits have held that granting an officer qualified immunity dooms a failure-to-train claim against their employer. This “backdoor municipal immunity” misunderstands the role that court decisions actually play in police policies and training, and undermines Section 1983’s deterrence and compensation goals.

Using Louisiana law as a case study, this Essay describes the consequences of the lack of substantive limits on noncapital sentences. It then critiques the focus on procedural rights that results from this vacuum of substantive rights, and discusses how to harness procedural changes to address excessive sentences.

The Supreme Court recently declined to review Tuggle, a Seventh Circuit opinion upholding warrantless, prolonged pole-camera surveillance of a home. This Essay argues that the Court missed an opportunity to update its Fourth Amendment search doctrine. This Essay also explores alternative opportunities—other than federal litigation—for safeguarding privacy rights.

In several recent cases involving claims that security-clearance decisions violated plaintiffs’ constitutional rights, courts have seemed more willing to scrutinize these decisions, which are usually seen as unreviewable. This Essay analyzes these cases and argues that federal courts are competent to review substantiated claims of constitutional-rights violations in security-clearance decisions. 

With the emergence of mass arbitration, companies that once promoted arbitration now seek to block employees from arbitrating claims. This Essay argues that employees have a right to mass arbitrate their claims because mass arbitration is a concerted activity protected by the National Labor Relations Act.

The Yale Law Journal is thrilled to present a Special Issue on the Law of the Territories, w…

The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.

This Article calls on the Supreme Court to overrule—rather than repurpose—the Insular Cases, and it points to constitutional doctrines beyond their reach that can preserve cultural practices without spawning a crisis of political illegitimacy in the unincorporated territories.  

The Article questions the wisdom of urging judicial overthrow of the Insular Cases without a rubric for the many doctrinal universes that might emerge from such an intervention. Ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-dependent interests with roots in that troubled framework.  

Centering on the wide-ranging implications of the Supreme Court’s decision in Rice v. Cayetano, this Article argues that the Court’s race jurisprudence threatens Indigenous self-determination and land rights in the territories. It concludes by offering several strategies that litigants can use to protect Indigenous rights within the existing doctrinal landscape.  

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in representative institutions authority to constitute the separation of powers by statute.  

In The Collapse of Constitutional Remedies, Aziz Huq contends federal courts exacerbate societal inequities by overzealously enforcing constitutional limits on government regulation while neglecting individual-rights violations. Though some of Huq’s criticisms are spot-on, others are overstated, and his confessed “redistributive goals” —exalting certain constitutional protections over others—imperil

Many states claim to own their water. How to understand such claims is a perennially muddied question which the Supreme Court recently failed to clarify. This Note demonstrates why states can have literal ownership of their water, and why a contrary conclusion could imperil groundwater management in the climate-changed future.

McGirt’s insistence on unambiguous proof of Congress’s intent created an opening for aboriginal-title suits against the United States. By enforcing the congressional-intent requirement, McGirt cleared the sovereign immunity and preclusion bars that have stymied such suits. An overlooked Tenth Circuit decision unknowingly demonstrated how courts can implement McGirt.