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This Article discusses a niche within a niche: Federalism considerations in theories of governmental takings of property. Several property and land use theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, because these differently scaled legislatures are likely to behave differently in dealing with individuals’...

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown Sheet & Tube Co. v. Sawyer concurrence provides the correct framework for resolving contests between the U.S. Congress and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been...

Institutions and institutional categories pervade the world and pervade human thinking, but institutional categorization plays a smaller role in constitutional doctrine than might be expected. Although constitutional doctrine often uses categories of the law’s own making, and often draws distinctions based on the character of the act or (less frequently) the character of the agent who engages in...

Employment law commentators have paid insufficient attention to the Solomon Amendment case of Rumsfeld v. Forum for Academic & Institu¬tional Rights, Inc. (FAIR) and its discussion of the right to expressive association under the First Amendment. By failing to methodically analyze whether all law school constituents of the FAIR organization constitute expressive associations, the Court...

Legal study of the institutions of national security decisionmaking has focused primarily on the allocation of authority between the president and the U.S. Congress to wage war. An overlooked gap within this framework is the strained relations between the U.S. civilian leadership and the military. The War on Terror has exacerbated these tensions—particularly with the Judge Advocate General’s...

Despite its substantial theoretical flaws, dual federalism—the model of American federalism according to which the field of federal regulation is separated from the field of state regulation in a mutually exclusive (or close thereto) fashion—continues to attract sophisticated adherents. In this Article, I debunk the myth that the U.S. Supreme Court was ever committed to a dual federalist...

Although the U.S. Supreme Court has held that the same strict scrutiny standard applies to both state and federal affirmative action, federal courts often appear to apply a more deferential form of strict scrutiny to the federal government’s use of race. Analyzing the entire corpus of published federal court decisions between 1990 and 2003, I show that federal affirmative action laws are twice as...

Popular discourse in the U.S. immigration debate often simply asserts that immigrants take jobs that native workers do not want. Though perhaps politically salient, such slogans overlook the complex interaction between employer preferences, immigration, and legal protections. Building on sociological research, this Comment explores the reality that many employers actually discriminate against U.S...

As the rapid growth of immigrant communities in recent years transforms the demography of the United States, language diversity is emerging as a critical feature of this transformation. Poor and low-wage workers and their families in the aggressively globalized U.S. economy increasingly are Limited English Proficient, renewing longstanding debates about language diversity. And yet, despite a...

In 2001, in Buckhannon Board "&" Care Home, Inc. v. West Virginia Department of Health and Human Resources, the U.S. Supreme Court rejected the catalyst theory for recovery of attorney’s fees in civil rights enforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious but expensive claims would be discouraged from bringing suit, finding these concerns...

This Article explores the conceptions of responsible agency that informed legal analysis in nineteenth-century America. Standing behind the “reasonable man” famously drawn by Oliver Wendell Holmes, Jr., there was a second figure, which I call the “default legal person,” who personified mental attributes an individual needed to possess— at a minimum—in order to be deemed a legally accountable...

The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny...

The No Child Left Behind Act (the Act or NCLB) was enacted with the laudable aim of improving education through a system of accountability for schools and school districts. The Act provides for a system of escalating punishments for schools that fail to make adequate yearly progress toward the goal of full student proficiency in core subjects. One of the options that districts have for dealing...

Mediation offers enticing advantages over adversarial systems for the resolution of commercial disputes. Mediation preserves party autonomy by vesting process development and final-decision authority in the hands of the disputing parties. Despite these benefits, businesses underutilize mediation in international settings in part because of unpredictable enforcement practices predicated on varied...