Can individual states implement laws to lower prescription drug prices without violating the Dormant Commerce Clause? Every year, new prescription drugs are created to treat and cure diseases. Some prescription drugs are blockbuster drugs that are potentially life-changing, while others were created to be a temporary solution until a better drug is created. As these new drugs are created, more lives are saved, but at a cost. The cost of prescription drugs continues to rise every year. There are many reasons why prescription drugs cost so much, from the significant amount of time pharmaceutical companies spend on research and development to the lack of generic drugs available. Prescription drug prices will continue to increase unless someone intervenes. States in the past have tried to reduce drug prices by passing laws. Although admirable, many of these legal efforts have failed because of the Dormant Commerce Clause. This Comment evaluates whether the Dormant Commerce Clause poses a barrier to prescription drug price reduction. The Comment discusses (1) reasons for high drug prices, (2) the legal framework of the Dormant Commerce Clause, and (3) recommendations for legislation that avoids Dormant Commerce Clause violations. Ultimately, state laws may be one tool that can address drug prices without interfering with the Dormant Commerce Clause.

Higher education plays a profound role in shaping the course of students’ lives. If it goes well, higher education can provide students with greater earning potential, employability, self-confidence, networking opportunities, lifelong friends, and an overall happier life. But if a student in higher education is accused of misconduct, the resulting disciplinary consequences can be career-ending. The most severe punishments—suspension and expulsion—limit students’ access to further education, scholarships, internships, and employment. While some states and local jurisdictions have laws prohibiting employers from asking about a prospective employee’s criminal background during the job application process, suspension or expulsion from a college or university may be noted on a student’s official transcript and can carry an almost equally significant stigma. But the circuit courts are divided on what students must plead to establish a constitutionally protected interest entitling them to procedural due process prior to suspension or expulsion.

As the threat of authoritarianism continues to rise, legal scholars have looked to more creative interventions to renew a decaying constitution. However, legal scholarship has not yet included the work of youth-led social movements as an interpretive authority to realize, reform, and reimagine the Constitution. Without including these uniquely marginalized and mobilized communities, scholars risk overlooking new possibilities for constitutional change and legitimizing youth suffering under the rule of law.

This Article provides a comprehensive analysis of Brnovich v. Democratic National Convention, which purports to create a new standard for Section 2 claims under the Voting Rights Act, by situating the critique in the ratifying-era history and original intentions of the VRA’s constitutional counterpart, the Fifteenth Amendment.  Brnovich is necessarily examined through a historical and political framework, identifying throughlines from the Reconstruction Era original intentions for the Fifteenth Amendment, distilled from Congressional debates, the VRA’s initially expansive Supreme Court interpretation in South Carolina v. Katzenbach, and Congress’ Section 2 amendments in 1982, rebuking the Court’s attempts to erode the legal force of the VRA in Mobile v. Bolden.

In Brnovich, the Court effectively nullifies the VRA’s Section 2 by erecting ultra vires legal standards and “guideposts” to evaluate voting qualifications, prerequisites, standards, practices, and procedures which were intended to, and do have a disparate impact and discriminatory effect on VRA protected classes.  The Court’s newly created “guideposts” are not based on the rich legislative history of the Fifteenth Amendment or Voting Rights Act and its five subsequent bipartisan reauthorizations through 2006 or properly applied cannons of statutory interpretation.  Instead, these “guideposts” are judicially fabricated to end the so-called “racial entitlement” the Act purportedly creates, bearing little resemblance to the Fifteenth Amendment’s original racial equity purpose and the Court’s prior legal precedents.

Formalist jurists are constructing a new kind of administrative law. In this emerging regime of private prerogative, “private rights” of property and contract receive heightened protection against administrative interference. These rights get special treatment in the form of novel constitutional rules against the delegation of policymaking and adjudicatory authority to agencies, as well as restrictive principles of statutory interpretation. Private prerogative treats economic entitlements as sacrosanct, and therefore grants their holders discretionary control over other people. Administrative power is treated as a generally threatening and often arbitrary imposition that often risks and never protects constitutional rights.

This Article offers a better alternative. It argues for an administrative law of public liberty that is more firmly grounded in the legal materials and more responsive to the requirements of popular sovereignty. Understood as the law of public liberty, administrative law is not primarily about the restraint of governmental power to protect vested economic interests. Rather, administrative law affirmatively protects “public rights”—entitlements held by the body politic that are requisite to republican self-government. These include the people’s rights to health, safety, and equality. Such rights routinely and pervasively impinge upon property and contract. While historically anchored in monarchical sovereignty and made actionable in the common law of nuisance, public rights today are anchored in popular sovereignty, recognized by federal statutory law, and implemented by federal regulatory agencies. Agencies are competent to protect these shared political interests where private initiative and ordinary litigation cannot.

They finally did it. Forty-five years after the Supreme Court’s splintered decision in Regents of the University of California v. Bakke, repeated challenges to race-based preferences in university admissions broke through in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA). A six-Justice majority held that the processes followed by Harvard and the University of North Carolina, Chapel Hill, violated the Equal Protection Clause of the Fourteenth Amendment and federal antidiscrimination law, Title VI.

This Article locates the SFFA decision in the larger context of American constitutional history. We were inspired to do so by a novel feature of the decision. For the first time ever, the Supreme Court referred to Reconstruction as the “Second Founding”—and, as if to make up for lost time, did so repeatedly, in multiple opinions. The majority opinion by Chief Justice Roberts, the concurrence by Justice Thomas, and the dissent by Justice Jackson all used the phrase. But though the Justices used the same phrase, that’s where their agreement about the “Second Founding”—and the legal theories espoused by Congress during Reconstruction—ends.

We have crossed a defining threshold, both in environmental law and in ecology. In law, we see a new era of environmental constitutionalism, and not at all unrelatedly, we find ourselves in a new ecological era that is marked by colossal human destruction of the very systems sustaining all life on Earth. Bill McKibben says it is as if we have destroyed our planet that sustained us and are now on a different planet altogether. And as the years pass, it will feel more and more that way. Our climate system is so disrupted by the greenhouse gases that have accumulated in the atmosphere that we now face a clear existential threat to humanity and society. As a Ninth Circuit Court of Appeals panel put it, we are nearing the “eve of destruction.”

There have been nearly 3,000 “climate litigation” cases. The U.S. is responsible for nearly two out of three of these. Yet neither Congress, the U.S. Constitution nor common law have exhibited much if any capacity for addressing or redressing climate change. International and regional instruments as well offer potential but little progress.

Subnational constitutions in America can help to fill the breach. There is a growing cadre of ‘climate rights’ cases that arise under state constitutions. For example, a state court in Montana recently ruled that a state law prohibiting consideration of climate impacts violates that state’s constitutionally enshrined environmental right, the Hawai’i Supreme Court has issued a series of decisions recognizing climate rights, and other state constitutions recognize rights that can arguably reach climate change. A wave of subnational climate rights cases is underway.

Much has been written about climate law and litigation yet little about subnational climate rights. This paper argues that the future engagement of climate rights in the United States is likely to occur at the subnational level based on either explicit rights to a healthy environment or on implicit implications of socioeconomic rights, such as to life, health and dignity. Part I asserts that the limits of international, regional and domestic national law create an opportunity for consideration of impactful subnational climate rights litigation in the U.S. Part II examines what I call “Environmental Climate Rights,” that is, climate rights based on constitutionally instantiated environmental rights, including at the subnational levels in Pennsylvania, Montana and Hawai’i, and sees promising if limited progress. Part III explores what I call “Socioeconomic Climate Rights,” that is, climate rights based on other constitutionally incorporated human rights, such as to life, health and dignity, and argues that there is untapped potential here. Part IV argues in favor of further exploration of subnational climate rights in the U.S.

Constitutional environmental rights are in vogue. In the United States and across the world, plaintiffs frequently claim that their governments, in failing to adopt and implement sufficiently ambitious policies, have violated constitutionally-protected rights to an environment of a certain quality. Such claims have garnered considerable success in many jurisdictions. And in the United States, the first such successful claim was recently accepted by a state trial court in Montana. Environmental rights are imagined as a valuable weapon to be wielded against recalcitrant governments.

Environmental rights are having a moment. Though only eight states and territories have expressed environmental rights provisions in their constitutions, a trickle of positive developments has seemingly turned into a stream. Supreme courts in Hawaiʻi and Pennsylvania gave some force to their states’ rights provisions beginning in the 2010s—and the scope of protections guaranteed by each right continues to be fine-tuned by litigation. In 2021, New York voters added an environmental rights provision to their state’s constitution—the first such addition of the twenty-first century. More states may well add similar amendments to their constitutions.

Our constitutional law of religious liberty is a riot of principles: principles of freedom of conscience, neutrality, separation of church and state, and others. To resolve concrete disputes, we must identify what those principles are and how they could ever jointly deliver singular answers to constitutional questions. Furthermore, to identify what the principles are, we must grasp what makes them so. This Article aims to meet these three needs. It clarifies what grounds our constitutional principles, sketches what our constitutional principles of religious liberty are today, and explains how the law could ever lie decisively on the side of one litigant or rule over another when individual principles point in opposite directions. It develops and tests its claims by analyzing two questions at the law’s frontiers: whether free exercise principles support a constitutional entitlement to exemption from antidiscrimination obligations beyond what free speech principles alone mandate, and whether publicly chartered religious schools are constitutionally permitted, required, or prohibited.

This is an investigation into the constitutional law of religious liberty, of course. But two of the three essential tasks it tackles—explaining how our principles are what they are and how multiple principles could ever provide determinate legal answers to contested constitutional questions—are critical across all regions of constitutional law. Accordingly, this Article examines the constitutional law of religious liberty both for its own sake and as a window into the fundamental elements and mechanics of American constitutional law generally. Its central arguments are that principles are the building blocks of our constitutional law, that they change organically as legal practices and commitments change, and that they can yield singular constitutional facts or rules despite their plurality.

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that there is no constitutional right to abortion. The decision has had a devastating impact on people seeking abortions in many states, and it will have an even more profound effect on the rights and lives of minors. Pregnant minors face greater risks than pregnant adults when they are forced to continue a pregnancy that can harm their physical and mental health and their educational and financial futures. Very young minors are incapable of consenting to the sexual acts that result in pregnancy, but many states require even these young rape victims to sacrifice their health and well-being—and potentially their lives—for the sake of a future child.

But the Dobbs opinion also calls into question other constitutional rights of minors. In Dobbs the Supreme Court interpreted its prior holdings to recognize a substantive right under the Fourteenth Amendment Due Process Clause only for (1) “rights guaranteed by the first eight Amendments,” and (2) a “select list” of unenumerated fundamental rights. “In deciding whether a right falls into either of these categories, the Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s 'scheme of ordered liberty.” If a right does not fall within either of those categories, it is not entitled to substantive constitutional protection under that provision. The Court concluded that the right to abortion was not protected by the Constitution.

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings. Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level. This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions. Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives nominate non-House-members for the speakership—and many argue the practice is constitutional. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of the Constitution, and 700 years of history and tradition to show that the Constitution requires the Speaker of the House to be a member of the House. It also considers the practicalities of correcting this drift. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, especially if Congress itself is the one violating it? Though the Speaker Clause likely is not justiciable, Congress has an independent duty—equally important to that of the judiciary—to uphold the Constitution.

A few years ago, conversations about artificial intelligence (“AI”) were confined to the pages of books and the ivory towers of academia. Now, even older generations know that AI makes many of the decisions in their lives. The heightened public awareness around AI has generated exciting conversations about its potential to push society into the future but it has also raised concerns about AI’s safety and inherent fairness. These concerns raises the following question: Can I trust a “robot” or automated system that makes decisions on my behalf?

As the use of AI by federal agencies continues to grow, concerns have been raised about the potential for “corporate capture of public power.” As many government agencies lack the expertise and resources to develop their own AI models, they rely on private companies to create them, leading to questions about bias and privacy safeguards in automated systems. These concerns add to the larger conversation about the trustworthiness of AI decision makers in our daily lives.

Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one that has both seduced and vexed scholars and Justices alike for generations: constitutional statesmanship. When wrestling with the statesmanship ideal, theorists are often inclined to simply shrug their shoulders, concede that a precise definition is impossible, and suggest that we often know statesmanship when we see it. We can do better. In this Article, I define constitutional statesmanship for our age of constitutional revolution. Drawing on a diverse set of theorists and methodological approaches—most notably, Ronald Dworkin’s famous concept of “fit”—I argue that constitutional statesmanship is best understood as the balance between three modes of analysis: (1) legal fit (relying on conventional legal materials and arguments); (2) popular fit (drawing on concrete indicators of current public opinion); and (3) pragmatic fit (factoring in predictions about public responses, policy consequences, and assessments by legal elites).

This Article identifies a radical transformation in constitutional law methodology: the central project of constitutional analysis has changed from offering value-neutral theories of interpretation to observing and critiquing conservative forces that undermine popular self-rule. This is most apparent in scholarly reactions to the Roberts Court’s refusal to strike down legislation that promulgates voter suppression, partisan gerrymandering, and abortion restrictions. Scholars treat these decisions to leave legislation standing as a direct assault on democracy, a distinction previously reserved for decisions that struck down legislation (such as Lochner v. New York). This new paradigm indicates a radical realignment in academic evaluation of judicial review, with a focus on substance rather than procedure. This Article illuminates this shift by observing scholars’ novel invocation of the ‘countermajoritarian difficulty.’ Widely recognized as the obsession of law professors for the past century, the countermajoritarian difficulty traditionally queries, why do non-accountable judges have authority to interdict decisions by elected representatives? The threat of far-right extremism has inspired constitutional law scholars to use countermajoritarianism to denote any political influence – the conservative-dominated judiciary, Republican legislatures, or polarized right-wing voters – that is perceived as exacerbating democratic backsliding. This changing use of countermajoritarianism portends a wider shift in constitutional theory. The classical approach to the countermajoritarian difficulty aspires to use general principles of constitutional analysis to reconcile independent judicial review with popular self-determination. This approach provides abstract explanations of constitutional interpretation and avoids openly committing to ideological or policy positions. Conversely, the new trend defines any threat to legitimate democratic self-governance as countermajoritarian. PCM constitutional theory thus takes as its starting point a set of substantive moral commitments. Polarized countermajoritarianism has a dramatic effect on doctrinal analysis. Traditionally, scholars invoke countermajoritarianism when courts strike down legislation. The new trend identifies it where courts allow legislation to stand but such inaction fails to protect democratic process against attacks from the far right. This Article posits that this radical shift in doctrinal analysis is a response to the loss of civic unity and democratic consensus in American politics. Polarized countermajoritarianism highlights the fragile condition of contemporary democracy but linquishes the analytic clarity of classical countermajoritarianism—a tradeoff scholars and jurists must incorporate into future analysis.

The 2020 presidential race was hard fought—before Election Day, and after. The loser, Donald Trump, spent weeks pressuring state legislatures to overturn his defeats. His arguments hinged on Article II of the U.S. Constitution, which, his lawyers insisted, permitted legislatures to intervene. While no legislature did so in 2020, the specter of postelection legislative interference still threatens our elections and risks a constitutional crisis.

This Article explains why Article II permits no such thing. Specifically, it argues that Article II’s grant of power—whatever its content—must be read as directed only toward pre-election legislatures, not postelection ones. This claim fills major gaps in the literature. First, previous scholarship assumes that Article II is silent, or ambiguous, on postelection interference. Blocking interventions would then depend on other authorities—like the Due Process Clause or state-constitutional provisions—ill-suited for the job. This Article shows, however, that Article II itself unambiguously bars postelection interference. Second, this Article sidesteps the debate about “independent state legislature” (ISL) theory—the focus of most scholarship on the 2020 election. Its argument holds, that is, regardless of what one believes about ISL doctrine. At the same time, this argument remains vital even after the Supreme Court snubbed ISL logic in Moore v. Harper. That decision leaves ample room, this Article argues, for Bush v. Gore-style debacles that foil state courts in constraining rogue legislatures.

To support its position, this Article advances four separate contentions, each sufficient to compel the above conclusion. The first contention analyzes Article II’s text according to intratextualist principles. The second unpacks the Framers’ original understanding of Article II. The third examines the original understanding behind Congress’s election-timing statute, which gives effect to Article II, Section 1, Clause 4. The fourth analyzes constitutional purpose. Finally, this Article also explains why the original understanding of Congress’s election-day statute—which let legislatures handpick presidential electors if their state “fail[ed]” to choose on Election Day—did not permit such handpicking after the 2020 election.

When the U.S. Supreme Court in the 2019 case of Franchise Tax Board v. Hyatt held that the Constitution bars private suits against a state in another state’s courts, it endorsed a surprisingly shallow conception of state sovereign power. But the doctrinal alternative from the now-overruled Nevada v. Hall is no better. Where Hyatt gives too much constitutional protection to would-be defendant states, Hall gives too little. And both approaches mistakenly conceive of interstate sovereign immunity as an on/off switch that the Constitution locks in one position.

Finding neither Hyatt III nor Hall satisfactory, I offer a third view. The Full Faith and Credit Clause was meant to ensure that states extend to each other dignity and respect for their sovereign duties. In the case of private suits against a defendant state in another state’s court, these sovereign duties conflict, and it is impossible for a forum state to preserve the sovereign duties of another state without impairing its own. To ensure full faith and credit, the Constitution, I argue, requires that states extend sovereign immunity to their sister states only when doing so maximizes the total sovereign power available to both states. In my view, this approach to interstate sovereign immunity is more consistent with the crucial value precipitated by the Constitution and enshrined in our federal system: states respect each other.