Faculty Publications

The central claim of this Article is that a significant share of typical policing activity is wildly and egregiously unconstitutional. More precisely, police regularly, predictably, and systematically violate the hardest, most settled core of free-speech law under the First Amendment. We have grown to tolerate these violations—we have not even noticed them!—because they are difficult to litigate. But they are inescapable. Having seen them, we cannot abide these violations without entirely overturning the modern understanding of free-speech rights under the First Amendment.

Legal scholars devote significant attention to the plight of incarcerated people, and they increasingly extend their focus to confront the social implications of incarceration for those outside the system. This Article goes further still: it argues that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community--namely, the families of incarcerated people. To make this argument, we use the traditional critical methodology of “looking to the bottom”: we draw on narratives collected through eight months of observations of a support group for family members of incarcerated people, along with twenty-seven in-depth interviews with such family members. We find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to provide their incarcerated loved ones with access to basic necessities, such as nutrition, physical safety, and post-release housing. In other words, informal social support networks, made up of civilians, backstop the state's carceral burden. In doing so, these networks become critical to the attainment of broadly beneficial objectives of the criminal legal system, like desistance from crime and successful reintegration upon release.
We translate the narratives of these participants into constitutional language, arguing that the participants have experienced takings that should be cognizable under the Fifth Amendment's Takings Clause. The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.” But, unlike traditional or regulatory takings, the extraction of property from the loved ones of incarcerated people occurs under extreme social or moral pressure rather than pursuant to legal directives. To capture the experience of the participants in this study, we introduce and defend the concept of “hidden takings”: certain governmental seizures of private property that are effected by the excessively coercive, extra-legal pressure arising from the state's failure to uphold basic affirmative obligations to its people. We then show that hidden takings fit comfortably within current caselaw, as well as within numerous and varied theoretical accounts of what takings law should achieve. In some respects, in fact, the case for recognizing hidden takings is stronger than the case for recognizing per se or regulatory takings that the courts have long accepted. We situate hidden takings within broader ongoing debates about takings law and progressive constitutionalism, finding that both originalist and critical perspectives are conducive to acknowledging hidden takings.

Thirty years ago, the Supreme Court created the government speech doctrine to protect certain forms of government action against First Amendment challenges. The government must speak to govern, the thinking goes, and the First Amendment regulates private rather than governmental speech. Therefore, government action that is classified as “government speech” should not be vulnerable to free-speech claims. The doctrine has since been used accordingly, vaccinating certain government programs against the First Amendment. For example, the doctrine has insulated regulations banning federally-funded medical providers from counseling patients about abortion; advertising campaigns spearheaded by the federal government; state-level choices about which specialty license plates to approve; and municipal decisions about which privately-funded statues to install in public parks. The doctrine now features in dozens of decisions in federal and state courts, and it continues to be deployed by the Court in decisions as recently as this past May.

The United States has failed to eliminate racial discrimination in the decades since ratifying the international human rights treaty that prohibits it. To its credit, the Biden Administration has attempted to center the fight for racial equity in the work of the executive branch. But President Biden’s executive orders and agency action plans on racial justice omit any reference to the International Convention on the Elimination of All Forms of Racial Discrimination, despite the duties and standards it establishes in the fight to end pervasive racism. As President Biden enters the final two years of his term, facing a legislature hamstrung by partisan divide, the time is ripe for decisive executive action to implement the treaty. Writing against a background of governmental and scholarly neglect of the duty to implement even non-self-executing human rights treaties, this Essay proposes several novel strategies the Administration could pursue. Decisive action on racial justice that honors United States treaty obligations would set an important precedent and leverage the utility of international standards for remedying human rights violations in the United States.

Despite the ever-growing number of exonerations in the U.S.— and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We argue that imprisonment entails what we refer to as “coerced moral degradation,” whereby innocent men’s self-preservation efforts in prison require them to feign being—and at times actually become— morally worse people. We argue that these findings speak to the fundamental question of what the law is for, and, further, that the coerced moral degradation that the men experienced in prison provides a compelling basis for conservative and progressive scholars to find some common ground on the moral purpose of the law.