Article

The Peace Powers: How to End a War

Article

The Constitution seems silent about who may end a war and how they may do so.
There is no “declare peace” clause, and scholarship has long neglected this matter. Yet
given two “Forever Wars,” considerable fatigue with both, and numerous demands to
end them, the question of how to end hostilities is exceptionally salient. We conduct an
overdue dissection and reveal that the Constitution charts many paths to peace.

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The Trajectory of Federal Gun Crimes

Article

Federal gun prosecutions have been a significant part of the federal docket for decades. In this Article, we explore for the first time the...

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Persisting Sovereignties

Article

From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and...

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Arbitrariness Review and Climate Change

Article

In its ideal form, arbitrariness review is an instrument for promoting
“deliberative democracy”—a system that combines reason-giving with political
accountability. Under arbitrariness review in its current form, courts tend to embrace
the “hard look doctrine,” which has a procedural component, requiring agencies to
offer detailed justifications, and also a substantive component, in which courts assess
the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in
government, in which scientific and economic judgments are overridden by political
considerations. With respect to regulatory policy, it is not enough to say that “elections
have consequences.”

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The Living Rules of Evidence

Article

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. After all, it’s been...

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America’s Misunderstood Constitutional Rights

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In contemporary rights jurisprudence and theory, the Fourteenth Amendment and the Federal Bill of Rights are most frequently conceptualized...

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Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force

Article

Recent instances of law enforcement killing community members and ensuing social movements have increased public attention on the issue of police use of force and the lack of officer accountability. Qualified immunity has been central to this discussion because the doctrine is often used to shield officers from civil lawsuits when plaintiffs bring constitutional tort claims under 42 U.S.C. § 1983.
The traditional understanding of qualified immunity as applied to excessive force cases is that it tracks the history of the doctrine itself. It is widely accepted that the doctrine began to thwart excessive force claims against police right after it emerged for the first time in 1967 with Pierson v. Ray—a false arrest case that created a subjective good faith defense for some § 1983 claims. Most assume this influence continued as qualified immunity took on its modern form in 1982 with Harlow v. Fitzgerald—an executive privileges case that created an objective qualified immunity test relative to clearly established law. With this standard narrative, it is largely thought that these early cases on qualified immunity in the contexts of false arrests and executive branch privileges naturally, immediately, and seamlessly became a significant constraint on plaintiffs’ § 1983 excessive force claims against police officers.

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Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, and Democratic Design

Article

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged...

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Tax Law as Foreign Policy

Article

The use of economic statecraft is at a high-water mark. The United States uses sanctions, tariffs, and import and export controls more than...

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The Perils of Land Use Deregulation

Article

Land use regulation and zoning have long been core functions of local governments. Critics of local land use practices, however, assert that local regulations are too restrictive and that “exclusionary zoning” ordinances increase housing costs, reduce mobility, entrench racial segregation, prevent the poor from accessing jobs and services, and reduce economic productivity. Spurred in large part by an affordable housing crisis in popular metropolitan areas, the YIMBY (“Yes in My Backyard”) movement has urged state and even federal action to override local land use regulations that raise barriers to the construction of market-rate housing. The conventional wisdom is that local governments cannot be trusted with land use policymaking and that striking down local regulatory barriers is necessary to address a whole range of ills.

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