American democracy is under siege.  This is so because of the confluence of three trends: (1) demographic change and residential segregation, which increasingly have placed more racially diverse Democratic Party voters in cities and suburbs, while rural areas have become more white and Republican; (2) a constitutional structure—particularly the Electoral College, the composition of the Senate, and the use of small, winner-take-all legislative districts—that gives disproportionate representation to rural populations; and (3) the willingness of this rural Republican minority to use its disproportionate power to further entrench counter-majoritarian structures, whether through extreme partisan gerrymandering, increased voter suppression efforts, court-packing, or outright rebellion against the results of democratic elections. These three trends together pose an existential threat to the whole idea of democratic self-governance.  This Article therefore makes the case for heightened judicial scrutiny in order to protect democratic processes against partisan and discriminatory entrenchment.  In making this argument, we seek to revive the political process rationale for heightened judicial scrutiny.

As advocates push to expand the right to trial by jury in criminal cases, the Supreme Court should revisit the “petty offense” exception in light of the expansive web of collateral consequences that has developed in the past few decades. In Ramos v. Louisiana, the Court grappled with the question of stare decisis and overruled decades-old precedent on the constitutionality of non-unanimous jury verdicts, recognizing that the Court should be most willing to reconsider precedent in cases involving constitutional criminal procedure. At the same time, state legislatures should address the problem by extending the state right to jury trials to cover all criminal prosecutions. The implications of such changes would extend beyond a procedural reform that would affect the rights of individual defendants. Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice at a time when such change is needed to establish the popular legitimacy of the criminal justice system.

The Article explains why the constitutional path to victory by religious foster care agencies that seek to place conditions in accepting foster parents, including Catholic Social Services in Fulton v. City of Philadelphia, should be one lit by rights of children, which the agencies should have standing to assert, rather than any rights of their own.  Courts should dismiss religious foster-care agencies’ First Amendment claims as simply inapposite, a category error, because the state is not constrained by First Amendment rights of third parties when acting in the fiduciary capacity that parens patriae authority entails.  It should also recognize, however, that children have Fourth and Fourteenth Amendment rights against the government’s seizing them and then treating them as distributable goods whose fate is influenced by solicitude for the sentiments and equality claims of aspiring foster parents.

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful to discriminate against an individual in employment “because of such individual’s race, color, religion, sex, or national origin.” The Supreme Court has since clarified that discrimination includes both harassment and stereotyping based on a protected class. Legal scholars have increasingly recognized and explored how intersectional discrimination, in which people are discriminated against on the basis of more than one trait or characteristic, relates to Title VII and other anti-discrimination laws. A key insight of intersectional theory is that this kind of discrimination is not merely additive (discrimination against Black women equals race discrimination plus sex discrimination), but that “categories may intersect to produce unique forms of disadvantage.” This Article argues that claimants can use the existing Supreme Court precedent of Oncale v. Sundowner Offshore Services, Inc. to contend that intersectional discrimination is a “reasonably comparable evil” to the single-basis discrimination contemplated by Congress in 1964, and therefore falls under the broad and flexible interpretation the Court has applied to Title VII’s “because of” language.

Some courts, on the state and federal level, have implemented rules for appointing counsel in habeas corpus petitions, which allow petitioners in state or federal custody to challenge the validity of their detention. But these rules are inconsistent and differ greatly, leading to petitioners having no knowledge of whether or not counsel will actually be appointed, or whether appointed counsel is prepared to provide adequate representation.

However, because local rules of the federal district courts can be changed relatively easily, judges have an opportunity to adopt favorable appointment mechanisms without much difficulty. This article looks at the Pennsylvania state rules and the local rules of several district courts, with the local rules of each court serving as individual “cases,” to determine just how effective the mechanisms of appointment are, and in doing so, makes recommendations as to what rules courts should adopt to ensure more effective appointment of counsel in habeas proceedings.

Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.” For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a circuit court trial which is apparently the first federal decision to articulate a broad theoretical basis for white supremacy. Dow identified whites as the “master” race, and the opinion explained that only those of European origin were either welcomed or allowed to be members of the political community in the American colonies. Non-whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion. Dow, however, was not a person of African descent—he was Malay, from the Philippines. Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans.

In Dred Scott v. Sandford, Chief Justice Roger B. Taney justified denying free Blacks the right to sue in diversity in federal courts on the ground that no Black, whether slave or free, could ever be a citizen of the United States. He asserted that at the Founding, free Blacks were not citizens of the nation and that they could never be incorporated into the American polity. He infamously asserted that at the Founding, Blacks were “so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” Taney was fundamentally wrong in these claims, and he should have known as much. In the last three decades of the eighteenth century, Americans actually witnessed a dramatic revolution in race relations, leading to the first civil rights laws in U.S. history. While some states retreated from this period of expanded civil rights in the nineteenth century, others did not.

This Essay primarily addresses two points, raised by Professor Gabriel J. Chin in his Article, Dred Scott and Asian Americans: first, Chief Justice Roger Taney as a proponent and defender of interconnected, even intersectional, racial ideologies; and second, Taney’s representativeness as an historian and as a legal realist describing law and politics as they were. In Professor Chin’s first claim, about the interconnected nature of Taney’s racial thought, we find a fascinating insight into the construction of a predominantly Democratic vision of the white race that helped shape not only Taney’s jurisprudence, but also his party’s efforts to develop a constructed identity politics. Professor Chin’s focus on the Naturalization Act of 1790 is a powerful rejoinder to many early U.S. historical narratives that examine race making solely with regard to people already in what became the United States. Taney’s arguments about a white Christian master race in turn help center nonwhiteness, not just Blackness or indigeneity, in early U.S. history with profound consequences. These are major claims and major contributions.

This commentary considers Professor Jack Chin’s analysis in his Article, Dred Scott and Asian Americans, of the white supremacist underpinnings and modern legacy of U.S. Supreme Court Chief Justice Roger Taney’s decisions in United States v. Dow, a little-known decision denying full citizenship rights to Asian Americans, and Dred Scott v. Sandford, an iconic Supreme Court decision that rejected full citizenship to a freed Black man and precipitated the Civil War. It further explores how Chief Justice Taney’s analysis of race and racial subordination in the nineteenth century exemplifies the fundamental tenet of modern Critical Race Theory that the law operates to enforce and maintain white supremacy.

The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision—“dual federalism”—where the federal government acts as the ultimate arbiter of questions of international policy. But dual federalism has not endured. Cities, counties, and states have become key decision-makers in areas once dominated by the federal government, and they have also become champions of the CRPD. This Article explains that “foreign affairs federalism” is at the heart of this paradigm shift. This new status quo reveals that the Constitution leaves ample room for subnational entities to engage on issues of international scale.

This Article argues that a functional approach to family law—treating those who have acted like family as family—undermines principles of family privacy and autonomy, and ultimately may not secure equal treatment for certain families within communities of color and and LGBTQ communities. In doing so, this Article challenges not only the functional turn in family law, but feminist scholarship that has been critical of family autonomy and privacy doctrine. Building on the consistent defense of privacy that emanates from women scholars of color, Professor Katharine K. Baker demonstrates how functional analyses demand interference and judgement that is likely to tear at the fabric of minority communities.

This Article provides the results of an empirical survey (nearly 200 currently sitting U.S. judges) of judicial thought on legal prediction, and it uses these results, along with an analysis of legal prediction cases in U.S. law, to argue that current legal scholarship has missed an important distinction in legal prediction problems: predicting up (What will the agent of a subsequent legal decision do? That is, what will the prosecutor decide? How will the court rule?) and predicting down (What will the object of the legal decision do? That is, will the defendant show up for court? Will he recidivate?). An example of a court predicting up is Barnette v. West Virginia State Board of Education, where a lower court anticipated a shift in higher court thinking. An example of a court predicting down is Miller v. Alabama, where the Supreme Court limited life without parole sentences to only those juveniles who are considered “irreparably corrupt.” There are unique issues that inhere to these distinct classes of prediction problems, such as technological-legal lock-in, the need for lay connection to legal processes, and the risk of racial bias.

The “myth of voter fraud” poses a significant threat to American democracy by both disenfranchising large numbers of voters and by weakening the public’s faith in elections. Noting that about twenty-one states currently enforce strict voter ID requirements, and that many state legislatures are in the process of further restricting access to the polls, this Comment urges voting rights advocates to challenge voter ID laws in state court—and proposes potential pathways for doing so.

During the protests that followed George Floyd’s death at the hands of law enforcement in 2020, a number of journalists were arrested on the job. A series of journalists fired back with lawsuits, asserting that their constitutional rights were violated. Collectively referred to as the “Floyd Caselaw,” these cases present a compelling portrait as to the status of First Amendment rights in the United States, and hint at broader acceptance of judicially-recognized press rights.