This is a publication of the Michigan State Law Review.

In recent years, the LGBTQ community has seen major
changes in the recognition of its legal rights.1 These changes come
after a long history of discrimination against the community and
criminalization of gender and sexual minorities in the United States.2
Today, the LGBTQ community, and transgender individuals in
particular, still face…[Read more]

What if half of the people in the jury pool for a capital case
are unqualified to sit—and the lawyers are not accurately identifying
and removing them? And what if the lawyers are actually identifying
the wrong people as unqualified and removing them instead?
This appears to be the case. The Constitution prohibits jurors
who will always (or n…[Read more]

Over the past six years, constitutional law scholars, politicians,
and public opinion-makers have grappled with what many have
described as the anti-constitutionalism of the Trump administration.1
Responding to Trump’s presidency, its aftermath, and the
circumstances that predated and arguably precipitated it, critics have
focused on p…[Read more]

Ralph Waldo Emerson once suggested that we read not for
instruction but for provocation.1 By that standard, in The Words That
Made Us, Akhil Reed Amar has written a characteristically great
book.2 This is not to deny that there is abundant instruction in its
many pages: Amar offers a synoptic and yet still nuanced description
of the great…[Read more]

What’s new in my new book, The Words That Made Us?
What’s missing? What’s next? If my tale is anywhere close to
correct, what tales told by other narrators must be rejected or
revised?
At heart, the biggest news is that a book such as this now
exists, as it did not before—a book that brings together between a
single set of covers the main co…[Read more]

During the four years of the Trump presidency, there was much
Sturm und Drang over the destruction of the rules-based international
trading system. That system—first as the General Agreement on
Tariffs and Trade (GATT), then as the World Trade Organization
(WTO), as well as hundreds of preferential trade agreements among
countries—has bee…[Read more]

On February 1, 2020, Patricia Dowd called her brother to
cancel plans to attend a funeral later in the week because she had
fallen ill with what seemed like the flu.1 Only five days later, Dowd
suddenly collapsed and died of what appeared to be a heart attack
while standing in her kitchen.2 A subsequent flu test returned a
negative result,…[Read more]

Employers have used non-compete clauses to deprive tens of
millions of workers of the freedom to change jobs or start their own
businesses. In occupations ranging from home health aide to
journalist to sandwich shop worker, employers have used this legal
power to their great benefit. Non-compete clauses reduce worker
mobility, help employers…[Read more]

Surviving spouses in community property states enjoy a
significant, but unintended, income tax advantage over surviving
spouses in other states. The advantage, known as “the double basis
step-up,” generally eliminates capital gains for surviving spouses in
community property states. This geographic inequality incentivizes
inefficient beh…[Read more]

On January 6, 2021, a seditious mob incited by President
Donald Trump invaded and ransacked the Capitol in an attempt to
stop a joint session of Congress from certifying Trump’s defeat in
the previous November’s election.1
In the days immediately following, many people demanded that
President Trump be impeached for a second time for his rol…[Read more]

What purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, “Believe in it? Heck, I’ve actually seen it done.”

I am not a fan of fa…[Read more]

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article f…[Read more]

Most fields of law in the United States appear to be heeding the
exhortation of a big-selling song, Imagine no religion, in that they
manifest a commitment to secular rather than religious authority.1
Within the Articles of the nation’s founding document, before any
amendments were ratified, framers of the new American design
provisioned t…[Read more]

My earliest interaction with the police came in September 1976
when I was four.1 My mom, who is Anishinaabe, and dad, who is
white, had driven us in our small car all the way up north from
southwest Michigan where we lived to take a quick camping trip
north of Sault Ste. Marie, Ontario. At the border, the police separated
my mother from us…[Read more]

Nearly ten years ago, I argued that government inaction in
certain cases can violate the Fifth Amendment Takings Clause.1 I
dubbed these “passive takings.” This category of liability, if
recognized, would mean that the government can violate the
Constitution by failing to act.2 Or, to put it even more provocatively,
it would mean that the Con…[Read more]

There is a conventional story of the state action doctrine. It
begins with the Supreme Court’s 1883 decision in the The Civil Rights
Cases, holding that Congress did not have the power to forbid
discrimination in hotels, trains, and other places open to the public. In
reaching that conclusion, the Court sharply distinguished b…[Read more]

Religious property disputes raise an assortment of issues both
practical and constitutional. Should civil courts be able to decide these
disputes, and if so, under what circumstances? What is the role of the
doctrine of “church autonomy” in these disputes? 1 Can “neutral
principles of law” help courts decide these cases, and if so, what is…[Read more]

Notwithstanding the robust national power conferred by the
U.S. Constitution’s Bankruptcy Clause, the design and administration
of federal bankruptcy law entails choices about the extent to which
nonbankruptcy-law entitlements will remain undisplaced. When such
entitlements sound in domestic nonfederal law (i.e., state or local l…[Read more]

The. lead opinions -in Obergefell v. Hodges advocated very different
conceptions ofthe Court’s role in a democracy. Meanwhile, however, both sides
of the debate expressed an allegiance to principles of deliberative democracy.
The majority engaged in the practice of deliberative democracy by providing a
reasoned explanation for its decision…[Read more]