3722 research outputs found
Sort by
Indigenous Women Book Display 2025 04
No full textCollection of books on display commemorating the celebration of Native American Women on the shelf in the law library October 2025.https://scholarship.law.tamu.edu/indigenous-women-2025-photos/1002/thumbnail.jp
Indigenous Women Book Display 2025 01
No full textCollection of books on display commemorating the celebration of Native American Women on display in the law library October 2025.https://scholarship.law.tamu.edu/indigenous-women-2025-photos/1000/thumbnail.jp
Discrimination, Private Liberty, and Public Accommodations Law
Full text linkIn 303 Creative LLC v. Elenis, a fiercely divided Supreme Court opined that commercial vendors enjoy First Amendment protections to decline to serve customers, even where such a choice is prohibited by state public accommodations regimes. In identifying a clash between personal liberty and state instruction, the decision could radically reshape the public accommodations statutory regime, which prevents discrimination against customers from minority and vulnerable groups. Standard constitutional interpretation cannot explain 303 Creative, and existing doctrinal and scholarly frameworks will struggle to integrate the decision into the already convoluted narrative of public accommodation law.
This Article is the first to identify the unifying theme of public accommodation law from the post-Reconstruction era to 303 Creative: whether commercial activity is a domain of private liberty that protects against state intrusion or, conversely, a shared social practice that is legitimately shaped by collective political decisions. When the Supreme Court characterizes commercial activity as a domain of private liberty, as it did in 303 Creative, the Court’s enforcement of personal rights curtails the scope and effect of public accommodations legislation. When the Court characterizes such activity as a shared public project, as it did during the Civil Rights era, the Court authorizes the legislature to robustly enforce the public accommodations regime and advance anti-discrimination.
The judicial classification of commercial society has wider-reaching consequences for constitutional interpretation. The most controversial decisions of the Roberts Court—such as the deregulation of campaign finance and the limitation of governmental regulatory authority over employers—are grounded in the theory that commercial activity is a domain of private liberty that deserves rights-based protections. This conclusion and the competing view that the government has broad authority to curate commercial and economic affairs both seek moral legitimation from the principle of political autonomy. To effectively advance this principle of autonomy, the Supreme Court should classify commercial activity based on actors’ contextual social power
The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing
Full text linkThe Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined in the lower courts.
This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals. The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines. Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian. The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right
The Common Threats of Artificial Intelligence and Privatization
Full text linkAdministrative agencies’ growing use of automated decisionmaking tools poses threats to core democratic values, such as agency flexibility, expertise, fairness, transparency, and accountability. But decades of privatization have wrought similar, lasting harms to the United States’ public institutions. This Article argues that the thoughtful criticisms and prescriptions from the burgeoning literature on the government’s use of artificial intelligence should be used to strengthen the scrutiny accorded to privatization.
Specifically, this Article challenges the perception that automated decisionmaking poses a greater threat to public values than privatization. Indeed, the two share several characteristics and goals. These include, for example, a fixation on efficiency, reliance on oversimplified cost-benefit analyses, erosion of agency expertise and resources, and separation between public officials and their decisions’ impact on individuals. In that separation, algorithms and private actors make important decisions often carrying political and fairness consequences. As policymakers adapt the latest expert guidance regarding algorithms to the problems of privatization, they should prioritize the needs and voices of the marginalized individuals who have been most harmed by the privatization movement
Bringing Parental Consent Out of the Shadows: An Evaluation of Texas H.B. 18\u27s Effect on a Child\u27s Best Interest
Full text linkBeyond constitutional assertions about broad parental rights lies the nuance of state laws affecting child autonomy. State laws take a variety of approaches to address the broad rights of parents to raise their children while acknowledging that these broad rights must give way in limited circumstances to promote the best interests of children. These differences under state law can be categorized into three approaches, including a bright-line, middle-ground, and extended autonomy approach. Naming and analyzing these approaches illuminates a new form of a bright-line approach—shadow parental consent—that Texas law has adopted. At first glance, the recently enacted Texas law, H.B. 18, does not appear to implicate the traditional parental consent requirements that other state laws outline. However, upon further evaluation, H.B. 18 creates a shadow parental consent requirement, which permits parents to have continuing consent authority over their child’s actions on social media through backdoor parental monitoring tools. In its current form, H.B. 18 protects the broad rights of parents to raise their children but fails to properly address the best interests of children. Instead, Texas legislators should amend the statute to respect broad parental authority while granting minors limited autonomy to protect themselves from abusive parental oversight on social media
