Conflicts over home rule represent a clash of foundational principles: between local autonomy and the general welfare of the community. Courts and scholars reach for proportionality in other similar constitutional traditions concerning a clash of principles. Proportionality requires that one principle give way, but only as necessary to accomplish the important interest that justifies giving priority to one of the principles. In the state–local context, a proportionality analysis would minimize hyperpreemption because state interests are typically too slight in most cases and the state actions too sweeping. Yet targeted preemption of local zoning authority to address the housing crisis probably would pass muster. Using California as an example, we examine recent California cases that suggest California law is trending toward proportionality review and argue that this trend should become the rule in every state.

Commentators have complained about the government-speech doctrine for years. They have been especially critical of the Court’s use of the doctrine, which appears unnecessary at times and inconsistent or even unprincipled at others. And they have offered a range of suggested reforms meant to steady the ship, such as the adoption of certain transparency requirements for government speech. This Article offers the deepest, most sweeping critique yet of the government-speech doctrine: the doctrine cannot be saved. It is intrinsically unconstitutional, and it should be eradicated in its entirety. More specifically, this Article argues that the government-speech doctrine is anchored in a conceptual mistake: it is not that the government can sidestep its burdens under the First Amendment whenever it communicates, but rather that the benefits of the First Amendment do not extend to government communication.

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on intertemporal conflicts of interest. This new conceptualization provides greater consideration to intertemporal externalities and the problems of overconsumption and overuse by current property holders, so that property law can better protect the rights of future generations. This type of protection is needed now more than ever, with the growing recognition that the climate crisis represents a catastrophic failure on our part to respect the interests of those who will come after us. We discuss the implementation of our proposal, demonstrate its benefits, and explain its origins within the existing structure of property law.

Federal and state laws and policies implemented in support of charter school expansion over the three decades of charter school history provide little protection against unchecked expansion of the Hillsdale agenda. This leaves our country in the position of publicly funding a political mission to overturn the public education system. Although charter schools are subject to the same laws governing all public schools, there is little oversight and substantial evidence of violations ranging from discrimination against students in protected classes to outright fraud. Existing recommendations to limit the number of charter schools or to hold charter schools accountable are inadequate or infeasible. Our proposal is to activate private incentives to litigate as a means of holding charter schools accountable to serving the public interest. We identify three areas in which litigation may provide an enforcement incentive for compliance with federal laws: employment discrimination liability under Title VII, liability of boards of directors of charter schools, and liability of third-party affiliates of charter schools.

This Article’s main thesis is that survival homicide should be treated under a mitigated criminal responsibility model instead of existing sentencing mitigation models. Its argument is twofold: First, it posits that domestic abuse survivors’ criminal responsibility should be relative and shared with states’ responsibility for failing to take adequate measures to prevent domestic abuse and support survivors. Second, it argues that survivors’ culpability is lower when they kill abusive family members out of fear and survival motives and therefore their criminal responsibility should be mitigated. To reflect survivors’ comparative responsibility, this Article proposes that state legislatures pass a designated homicide offense, titled “survival homicide,” for prosecuting domestic abuse survivors. Survival homicide would be graded lower than manslaughter, carry a non-carceral penalty, and not trigger any collateral consequences.

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.” Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment. By urging revival of the void for uncertainty doctrine, this Article outlines a novel path for state constitutional litigation and proposes how state legislatures can reform parole statutes to put them on sound constitutional footing.

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or to protect the company’s users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its structure, decision-making, and potential future trajectory. Seen from this perspective, key design features that commentators have criticized are, in fact, strengths the Board is already using to expand its authority, develop human rights norms, and influence efforts to regulate social media platforms.
This Article is the first to examine the human rights origins of the Oversight Board, the similarities between the new body and international human rights tribunals, and how the Board is using human rights standards to pressure Meta to improve its content moderation policies and to inform ongoing efforts to regulate social media companies. We complement this analysis with a range of recommendations for the Board to become even more effective, as well as explore potential risks and challenges, including backlash, whitewashing, and negative spillover. Although a sanguine vision of the Board’s future is by no means assured, when viewed in light of the experience of international human rights tribunals, we conclude that the Board has the potential to serve as a meaningful check on Meta and to significantly advance the promotion and protection of human rights online.

For twenty-five years, state legislative efforts to legalize, tax, and regulate sports wagering were forestalled by a federal law that disallowed new states from legalizing sports wagering. This freeze on new state-sponsored sports wagering ended abruptly on May 14, 2018, when the U.S. Supreme Court ruled in Murphy v. National Collegiate Athletic Ass’n that the Professional and Amateur Sports Protection Act violated the U.S. Constitution by impermissibly commandeering the states.
Since the U.S. Supreme Court’s ruling in Murphy, there has been a rapid proliferation of legalized and regulated sports wagering throughout much of the United States. At present, thirty-five states allow for some form of legalized and regulated sports wagering, with most of these states allowing for sports wagering not only in the brick-and-mortar format but also online and on mobile applications.
This rapid proliferation of sports wagering, however, has not always gone perfectly. At present, some states enforce strict limits on the number of companies that are eligible to obtain sports wagering licenses. Other states have implemented hefty taxation schemes that have made it difficult for any licensed operator to turn a profit. Meanwhile, still other states have focused primarily on maximizing tax revenues while doing little, if anything, to protect the interests of consumers, including problem gamblers.
This Article provides an expert-level analysis of the emergent market for regulated sports wagering—examining the evolution of sports wagering before legalization, the Murphy decision, and the market for sports wagering since Murphy. The Article then proceeds to elucidate some of the high-profile failures of the present market for sports wagering and examines ways of ameliorating many of these failures.