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.