Publications: Law Journal Articles

The most constitutionally divisive issues in the United States today often play out literally on the ground, in the realm of land use. For instance, towns that have proclaimed themselves to be “sanctuary cities for the unborn” do not want abortion clinics opening up in neighborhood medical complexes, localities with “small town values” do not want strip clubs sprouting up on Main Street, and cities that support gun control do not want new firing ranges coming to their commercial districts. When municipalities try to exclude these constitutionally protected uses, however, a perennially perplexing question arises: Does it matter that whatever is being limit can be easily accessed beyond a locality’s borders? In other words, can one municipality constitutionally justify its exclusion of a particular service or facility by pointing to availability in a neighboring town?  

The answer, it turns out, largely depends on size. Across multiple constitutional contexts, courts frequently allow small localities to look beyond their borders and exclude particular facilities, yet typically prohibit large cities from doing that exact same thing. When mapped onto the political geography of the United States, this “horizontal tailoring” effectively means that small, conservative “red” towns can maintain and even deepen their conservative community character through exclusions, while large “blue” cities are prohibited from crafting their progressive community character through similar exclusionary methods. A tailored approach thus appears to privilege the self-determination of small localities over that of big cities, with potentially partisan political consequences.  

This Article argues, however, that this is not the end of the story. This Article shows that the ability to engage in “constitutional off-loading” comes at substantial risk for small localities, while the prohibition on constitutional off-loading comes with a potential benefit for big cities. When courts look beyond a locality’s borders, they undermine the significance of those borders and highlight the fundamental interconnectedness and interdependencies of that locality with other areas in the region. This vision profoundly undermines the version of localism espoused in cases like Milliken v. Bradley and Warth v. Seldin, and weakens the arguments of small localities that they should be taken seriously as independent constitutional actors.  

Conversely, the inability of cities to engage in constitutional off-loading comes with a potential benefit. By reinforcing the meaning of a city’s borders and applying the same rule to cities as applies to states (that is, that neither can engage in constitutional off-loading beyond their territorial borders), the constitutional off-loading jurisprudence strengthens and fortifies arguments for recognizing a “big city localism” and pushes toward recognition of a constitutional status for large cities. The correlated benefits and burdens of constitutional off-loading may therefore ultimately push toward a more balanced localism for all.

Over the last few decades, municipalities and local governments have increasingly turned to banning and exclusion laws as a means of crime prevention. Banning and exclusion laws prohibit an individual from accessing a particular area or building for a prescribed period of time (often one to five years). Violations frequently trigger penalties of up to a year in jail. Because they are focused on crime prevention, no actual wrongdoing is necessary to trigger these bans: many bans are issued on the basis of mere suspicion. 

Banning and exclusion laws most typically forbid suspicious individuals from being in public spaces, like city parks or neighborhoods. But they also extend beyond just public spaces, into spaces that mix public and private aspects, like private businesses open to the public, and public housing. And now, banning and exclusion practices have diffused out into the purely private realm. Through a recent trend of local ordinances, state legislation, and ad hoc initiatives, many private landlords have been empowered to ban a tenant’s invited guests from a rental home, on virtually any basis. Landlords can exercise this power solely on personal fiat, though they often do so in partnership with local police. 

This Article is the first to surface and critique this expansion of banning and exclusion laws into the private realm of the home. As private rental homes join city streets, neighborhoods, parks, private businesses, and public housing as yet another site of state-driven exclusion and banning, spatial governance becomes nearly totalized. Although carefully constructed exclusionary mechanisms can be a justified crime-prevention tool in certain limited circumstances, landlords’ new exclusionary powers, as currently constituted, all but guarantee they will be exercised in the same racially discriminatory manner as prior forms of exclusion from public spaces. These enhanced exclusionary powers increase displacement, evictions, and arrests; link associational rights to property ownership in troubling ways; negatively affect family formation; and infringe upon the liberty and privacy rights of already vulnerable populations. For these reasons, this exclusionary expansion should be curtailed.

This Article identifies and theorizes a significant but previously overlooked feature of structural discrimination: it frequently develops into two seemingly opposing, yet in fact mutually supportive practices. This “discriminatory dualism” occurs in multiple contexts, including policing, housing, and employment. In policing, communities of color experience overpolicing (i.e., the aggressive overenforcement of petty crime) at the same time as they experience underpolicing (i.e., the persistent failure to address violent crime). In housing, redlining (i.e., the denial of credit to aspiring homeowners based on race) combines with reverse redlining (i.e., the over-offering of credit on exploitative terms) to suppress minority homeownership. And in employment, sexual harassment (i.e., unwanted sexual attention) combines with shunning (i.e., the refusal to engage with women workers at all) to deny equal opportunity in the workplace. 

While scholars working in these discrete fields have noted each of these individual paradoxes, this Article argues that these paradoxes are iterations of the same broader phenomenon. Three critical insights flow from this recognition. First, understanding discriminatory dualism as a common technology of oppression allows policymakers to better anticipate its movements and identify discriminatory dualism as it arises in other contexts. Second, this frame diagnoses why previous reform mechanisms have failed. Third, it surfaces the distinct harms caused by discriminatory dualism. Because each paradox is made up of two co-existing, contradictory strands that simultaneously deny and support each other’s existence, discriminatory dualism creates destabilizing systems that confound conceptualization and countermobilization efforts. The conceptualization challenges create hermeneutical injustices, and the countermobilization challenges make discriminatory dualism difficult to combat. Nevertheless, understanding the dynamic and systemic processes of discriminatory dualism offers tools to begin the necessary work of dismantling it. 

When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities. 

Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as “creatures of the state,” and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city’s most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice.

Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. However, this Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law. 

Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered, most often holding wives and girlfriends responsible for the wrongdoing of their male intimate partners. Second, in many instances, conjugal liability is unmoored from traditional notions of culpability, and is arguably a form of guilt by association. Third, conjugal liability flies in the face of the constitutional right to freedom of intimate association. Because of these troubling features, conjugal liability should be recalibrated so as to ensure an actual connection between an intimate partner and an underlying wrong, as opposed to merely a connection between an intimate partner and a wrongdoer.

Thousands of American cities and towns are responding to social problems like bullying, drug abuse, and criminality by passing ordinances that hold individuals responsible for the wrongful acts of their family members and friends. Parental liability ordinances impose sanctions on parents when their children engage in bullying or other targeted behaviors; mandatory terms in rental housing leases require the eviction of tenants whose family members, friends, or guests engage in unlawful acts; and nuisance ordinances require evictions when a threshold number of calls to police is exceeded, even though such calls are often related to another person’s wrongful or abusive behavior. 

Cities typically rely on home rule authority to pass these ordinances, and these ordinances in turn create new “home rules” for the households affected. These new home rules are a form of third-party policing, and through them, the city is becoming an increasingly significant player in governing families and regulating intimate spaces. These home rules cut against the standard understanding of the home as mostly private and self-governed, and instead configure it as a site of state-required risk management and crime prevention. In so doing, these ordinances destabilize families and disrupt kinship structures, regardless of whether one is able to comply with them or not. Further, the ordinances allocate the burdens of preventing crime and managing risk in a manner inflected with gender, race, and class issues. Fortunately, the dynamism of localism can promise a better solution to the social problems that prompted these ordinances in the first place. 

Bystander intervention strategies are emerging as a popular proposed solution to complex social problems like bullying in schools and online, sexual misconduct on college campuses, and harassment in the workplace. As the name suggests, bystander intervention initiatives encourage individuals who witness such harms to adopt an active, interventionist approach in stopping them. For example, a teenager who sees another student being bullied on a website, a college student who observes a heavily intoxicated female student being led into a bedroom by a male companion, and a work colleague who overhears a sexist or racist joke are encouraged to either intervene to prevent a situation from escalating or report an incident after it has occurred. The belief that bystander interventions can combat these harms is so strong that, in some instances, the implementation of bystander intervention initiatives is becoming legally required. 

Ironically, at the same time as law is starting to require the implementation of bystander intervention initiatives, law also functions as an impediment to successful bystander intervention. First, while bystander intervention programs try to create a norm of intervention, most legal norms support non-intervention, giving rise to a “competing norms” problem most commonly resolved with inaction. Second, a lack of legal accountability for the surrounding institutions and organizations indirectly discourages bystander intervention. Finally, a perceived risk of liability associated with intervention immobilizes many bystanders. Unless these legal impediments are minimized, bystander intervention is unlikely to be a successful solution to social problems.

Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one's proprietary interest in a woman: one man's rape of another man's wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law. 

Despite the fact that the criminal regime has been demonstrably unsuccessful in addressing or deterring sexual harms, it remains the primary forum for their adjudication, and many cultural, legal, and political pressures encourage women to rely solely on this system. This article argues against those pressures, and asserts that triangulated claims in private law represent a potentially promising avenue of redress for sexual harms. These civil suits can function as "crimtorts" (private civil actions which target public harms). Although they must overcome some significant obstacles, triangulated civil suits can serve as an important tool in targeting the social realities that contribute to sexual assault.

35 Harv. J. L. & Gender 167 (2012)

The tort of interference with contractual relations has many puzzling features that are inconsistent with fundamental principles of contract and tort law.  This Article considers how gender heavily influenced the structure of the tort and gave rise to many of these anomalous features.  Lumley v. Gye, the English case that first established interference with contractual relations, arose from a specifically gendered dispute: two men fighting over a woman.  This type of male—male—female configuration constitutes an erotic triangle, a common archetype in Western culture.  The causes of action that served as the legal precedents for interference with contractual relations – enticement, seduction, and criminal conversation – are previous instances where the law regulated gendered triangular conflicts.  

In Lumley v. Gye, the court expanded these precedents and created a cause of action that allowed Lumley to bring an action against his male rival for essentially “taking” his contracted female employee.  The gendered basis for the tort explains its most problematic aspects, including why it imposes obligations on non-contractual parties, ignores the role of the breaching promisor in causing the wrong, and treats her as the property of the original promisee.  In order to remedy these problematic features, the tort should be restructured as one of mixed joint liability.  Further, damages should be limited to those available in contract.