Tom Ginsburg, A Constitutional Perspective on Institutional Neutrality, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds), (Forthcoming) availible at SSRN (Feb. 12, 2024). Robert Post, The Kalven Report, Institutional Neutrality, and Academic Freedom, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds) (Forthcoming) availible at SSRN, (Aug. 19, 2023). Paul Horwitz The two papers on offer here are neither complementary nor opposed a ..read more

Joy Milligan & Bertrall L. Ross, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, 102 Tex. L. Rev. 305 (2023). Mark Kende During the hagiography surrounding the Bicentennial of the U.S. Constitution, Justice Thurgood Marshall dissented. For Marshall, the Constitution could only be celebrated as “a living document.” The original document, and “the government it devised,” was “defective from the start.” Marshall’s words were literally as well as figuratively true, in his view: the document’s flaws began with its preamble and its woefully underinclusive understandin ..read more

Keith E. Whittington, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, 58 Wake Forest L. Rev. 463 (2023). Lyrissa B. Lidsky Keith Whittington’s new article, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, is a timely response to the growing body of “anti-woke/anti-Critical Race Theory” legislation and legislative proposals that aim to drive certain types of discussions of race, gender, and other controversial topics out of state university classrooms. The clarity of Whittington’s style make ..read more

David Hackett Fischer, African Founders: How Enslaved People Expanded American Ideals (2022). Mae Kuykendall In African Founders: How Enslaved People Expanded American Ideals, David Hackett Fischer provides a comprehensive survey of African contributions to Americanism at its most aspirational. Fischer gives particulars of knowledge and skills advanced by Africans in the United States and prized by white people in various regional economies. His primary argument, though, is that Africans in bondage, and their descendants, as a result of their unique American experience, formed “a very power ..read more

Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023). Leah Litman What is sex discrimination? Or, more generally, what is discrimination? This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories. In her t ..read more

Mary Anne Franks, Beyond the Public Square: Imagining Digital Democracy, 131 Yale L.J. Forum 427 (2021). Helen Norton When (if ever) should we decline to apply longstanding First Amendment doctrine to technologies and practices unknown to, and unknowable by, the 20th-century Court that developed that doctrine? This question requires us to consider whether and when 21st-century expressive technologies are distinguishable from—or instead analogous to—older forms of expression in meaningful ways. As Genevieve Lakier observed in a related context, “analogies will prove useful only to the extent ..read more

Note, Romer Has It, 136 Harv. L. Rev. 1936 (2023). Pat Gudridge In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!” I react illustratively here. Romer v. Evans was a 1996 S ..read more

Tarunabh Khaitan, On scholactivism in constitutional studies: Skeptical thoughts, 20 Int'l. J. of Const. L. 547 (2022). Tarunabh Khaitan, Facing Up: Impact-Motivated Research Endangers not only Truth, but also Justice, Verfassungsblog (Sept. 6, 2022). Paul Horwitz At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may belie ..read more

Camden Hutchinson, Freedom of Expression: Values and Harms, 60 Alta. L. Rev. 687 (2022). Leonid Sirota Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approa ..read more

Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87 (2022). Jonathan Feingold “But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigat ..read more