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Volume 73, Issue 6


Qualified and Absolute Immunity at
Common Law

by  Scott A. Keller

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there has been plenty of commentary criticizing the Court’s existing clearly-established-law test, there has been no thorough historical analysis examining the complicated subject of state-officer immunities under nineteenth-century common law. Yet the legitimacy of state-officer immunities, under the Court’s precedents, depends…


Policing Under Disability Law

by  Jamelia N. Morgan

In recent years, there has been increased attention to the problem of police violence against disabled people. Disabled people are overrepresented in police killings and, in a number of cities, police use-of-force incidents. Further, though police violence dominates the discussion of policing, disabled people also disproportionately experience more ordinary forms of policing that can lead…


Traffic Without the Police

by  Jordan Blair Woods

We are at a watershed moment in which growing national protest and public outcry over police injustice and brutality, especially against people of color, are animating new meanings of public safety and new proposals for structural police reforms. Traffic stops are the most frequent interaction between police and civilians today, and they are a persistent…


Finality, Comity, and
Retroactivity in Criminal Procedure

Reimagining the Teague Doctrine After Edwards v. Vannoy
by  Jeffrey G. Ho

The Supreme Court’s habeas corpus retroactivity jurisprudence has never been a model of clarity or fairness. Ordinarily, if a case is on direct review, a court is bound to apply constitutional law as it currently stands, not the law as it stood at the time of trial, conviction, or sentencing. This rule derives from Griffith…


Indirect Constraints on the
Office of Legal Counsel

Examining a Role for the Senate Judiciary Committee
by  William S. Janover

As arbiter of the constitutionality of executive actions, the Department of Justice Office of Legal Counsel (OLC) possesses vast authority over the operation of the federal government and is one of the primary vessels for the articulation of executive power. It therefore is not surprising that the OLC has found itself at the center of…

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Recent Online Essays

Managing Sudden Death, Grief, and Loss in Close Community

Not Your Usual Law Review Essay

Deborah Rhode’s intellectual largesse has been central to chronicles of her legacy for good reason. For the innumerable who have encountered her illustrious writing and expansive career, her passing has meant the loss of a visionary thinker and leader: the end of an era, the loss of a giant who, across fields, did not shy from hard questions or difficult analysis when considering ethical ends and law’s true purpose. To junior colleagues, mentees, and students over decades and sites, it has meant the loss of a true champion and path-maker, someone whose favorite use of her letterhead was in service of others. To her collaborators, it has meant the loss of a generous colleague, someone who did not take shortcuts and whose commitments to causes bigger than her were always evident as a reflective and inspiring example.

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Hard Questions About ‘Soft Skills’

A Celebration of Deborah Rhode’s Scholarship

This Essay celebrates the life and scholarship of Professor Deborah Rhode by centering her pivotal contributions on character and leadership in the legal profession to the national conversation about criminal justice reform. Deborah unmasked the systemic deficiencies in identifying and informing the character and leadership necessary for the institutional actors of the criminal process. Her contribution to the national discourse requires reformers to ask hard questions about the essential soft skills of those individuals tasked with providing legal representation to the most marginalized among us. As scholarship by transformational scholars and mentors like Deborah Rhode often does, her work inspires conversations about what it means to be an institutional actor in the criminal process. It also leaves a roadmap for those fortunate enough to have worked and learned from her to pursue answers to these questions. Her legacy speaks to both those who seek to advance justice through their practice of law and those who advance our understanding of law by researching the institutions tasked with ensuring systemic integrity in a criminal process that is increasingly coming under criticism.

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She Stood Up

The Life and Legacy of Deborah L. Rhode

If you look closely, you will see an anomaly. There are twenty-seven men and five women pictured. Of the latter, four are in dresses and sitting. One, however, is in pants. And she is standing up. That woman is Deborah L. Rhode. She’s standing because, when she was instructed to sit, she politely but firmly refused. And that, my friends, is the point.

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The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone

The Chinese Exclusion Cases created a world in which an entire class of noncitizens could be deported or excluded from the United States. Today, the ghost of the Chinese Exclusion Cases is still alive and well, interwoven into the lives of many citizens and noncitizens in the United States. Because of the Plenary Power Doctrine sanctioned by the Chinese Exclusion Cases, two-thirds of the U.S. population live in a Fourth Amendment–free zone where border officials can conduct warrantless searches with impunity. Minority populations, in particular, are subject to constant policing and suspicion: an experience that would not have been foreign to Mr. Chae Chan Ping and Mr. Fong Yue Ting.

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Priam’s Folly

United States v. Alvarez and the Fake News Trojan Horse

In legal scholarship over the past few years, fake news has been criticized and pondered repeatedly. In many ways, 2020 was a year of reckoning which brought to the fore the myriad problems posed by fake news. This Essay uses the context of 2020 to critique the Supreme Court decision in United States v. Alvarez, the latest Supreme Court ruling on the issue of whether fake news is protected by the First Amendment. Alvarez was decided in 2012, before the true dangers of fake news during the Internet Age were made fully apparent to the public. While Alvarez upheld the noble idea of truth ultimately triumphing in the marketplace of ideas, in reality, Alvarez opened the gates to the pernicious dangers posed by fake news.

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