Volume 78, Issue 4
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Goodbye, Zoning?
May 2025 | Michael Allan Wolf | Article | This Article is the first detailed look at what would happen if zoning’s critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court to find it unconstitutional, so this Article features excerpts from three fictitious Supreme Court opinions that reflect the jurisprudence of today’s iteration of the Roberts Court. Unfortunately for those who see the elimination of zoning as a magic bullet for many of society’s ills, a judicial declaration that zoning violates the protections afforded by the Due Process, Takings, Equal Protection, and Contracts Clauses would only result in the re-creation of some of zoning’s most problematic aspects, bringing American society back to square one. Moreover, eliminating classic (“Euclidean”) zoning would invalidate modern modifications that respond to current socioeconomic and environmental conditions. Rather than waving goodbye to zoning, this Article offers four achievable steps that local and state governments can take today to continue the longstanding process of adapting zoning (the good and the not-so-good) to changing realities.
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The Illusion of Stability in Family Law
May 2025 | Kaiponanea T. Matsumura | Article | Family law’s veneration of stability imperils already-marginalized family relationships. This Article proposes two reforms. Stability writ large should often be discarded in favor of specific markers—whether duration, financial security, psychological attachment, or others—that can be verified and weighed in light of desired policy outcomes. Scholars and lawmakers must also identify values beyond stability—such as fluidity, resilience, and satisfaction— to guide legal reforms and judicial decision making.
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A Crust of Bread: Religious Resistance and the Fourteenth Amendment
May 2025 | Kurt T. Lash & Stephanie Hall Barclay | Article | In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable state or federal law. This understanding of religious liberty informed the constitutional ideas of Reconstruction-Era Republicans and, ultimately, the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. After canvassing the historical evidence, the Article explores how replacing the Smith test with a strict scrutiny test would better protect post– Fourteenth Amendment free exercise. At the very least, the evidence in this Article also supports a trajectory the Supreme Court has been on in recent cases to narrow the application of Smith by dramatically limiting the types of laws that can qualify as being neutral and generally applicable.
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Congress’s Power Over the Electoral Count
May 2025 | Larry Schwartztol | Article | This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress’s authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II, the Necessary and Proper Clause, and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress’s authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment’s significance in this area.
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Defense Wins Championships (and Labor Disputes): How the Minor Leagues Can Field Their Position Against MLB’s ‘Inside Baseball'
May 2025 | Blake Morain | Note | This Note defends against Major League Baseball’s unilateral, capital-driven action by arguing that the number of affiliated minor league teams constitutes a mandatory subject of bargaining under the National Labor Relations Act. Beyond offering the Major League Baseball Players Association a new pitch in its arsenal to advocate for overturning baseball’s historic antitrust exemption, a ruling that contraction is a mandatory bargaining subject is necessary to ensure the continued viability of minor league baseball.