Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.

Legalization cannot deliver on its reparative terms without guarantees. Such guarantees, or “guarantees of non-repetition,” are a robustly developed area of post-conflict repair in transitional justice systems. The state and impacted people collaboratively develop these guarantees to protect against retrenchment. The process of developing reparative guarantees entails inquiry among survivors, implementation of policy establishing new norms, and accountability mechanisms. U.S. legalization reforms often misunderstand, under-investigate, and devalue the regime-like nature of the drug war as experienced on the ground. In the case of drug war repair, such guarantees could abolish family courts’ abilities to restrict parenting rights over legal cannabis use. Guarantees may also require reform or abolition of the fruits of the militarized drug war, such as violent SWAT-style raids and no-knock warrants, on communities. Legalization and reparative drug war reforms require guarantees against retrenchment.

Drug reform advocates in the U.S. have highlighted the potential and importance of guarantees through drug war reparations demands. The guarantees-based framework developed through this Article advances this work and emerging scholarship on U.S. drug legalization and drug war repair. Legalization without guarantees against dominant harms is palliative, or tension-easing reform, rather than institutional repair. Guarantees provide buffers from retrenchment when political tides turn. This Article develops drug war repair guarantees conceptually and justifies a basis for applying guarantees to drug reform efforts. Earnest repair to individuals and communities devastated by the drug war requires state reparative guarantees.

When religious claimants sue to protect their ability to practice their faith, they often invoke legal guarantees that specifically protect religious exercise. Yet historically—and still today—they also rely on secular guarantees like freedom of speech or equal protection. And their victories on these grounds set precedents not just for believers but for everyone. As a result, many rights we now take for granted stem from religious minorities pressing for the ability to preach, proselytize, and publish their religious views. No account of free speech law would be complete, for instance, without considering the pathbreaking decisions won by Jehovah’s Witnesses.

Although scholars have recognized the role of Witnesses and other religious actors to First Amendment law, little scholarship has examined the broader phenomenon of religious actors advancing secular rights or traced how their struggles have affected secular individuals in secular contexts. To begin to fill that gap, this Article offers a historical account of how religious minorities inspired much of the Bill of Rights’ secular freedoms and how Jehovah’s Witnesses in particular secured many of those rights in court. The Article also shows how those victories laid the foundation for secular social movements—most notably how Witness cases in the 1930s and ‘40s provided crucial protections for the Black civil rights movement.

Better understanding religious minorities’ role in shaping our basic secular freedoms has important implications for how religious-claimant cases—both old and new—should be thought of today. In disputes ranging from a high school coach praying after games to companies like Facebook and YouTube challenging state regulation of their content-feed decisions, litigants and courts must decide both when to resolve religious claimants’ cases on secular grounds and, conversely, whether to resolve secular claimants’ cases by analogizing to protections afforded to religiously-motivated actors.

Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.

Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can respond to new technology and desired rights through state constitutional amendments. Unlike our federal Constitution, American state constitutions align with Jefferson’s vision of living under the present generation’s desires as opposed to remaining captive to the desires of those long since gone. State governments have provided the periodic change that enables Americans to live under a rarely changed national Constitution. This dual sovereignty, a balance of power between the national government and individual state governments provides a symbiotic system of flexible permanence.

This Article discusses the role that state constitutions, particularly Western state constitutions, play in moderating Article V’s inflexible demands for constitutional change. While Article V erects super-majority standards and only permits amendments from either the federal or state legislatures, many Western state constitutions provide the opportunity for citizen-initiated change. This “check” on the legislatures and courts provides an opportunity for citizens to have their voices heard and their demands considered. Citizen initiatives allow Americans to temper Article V’s stagnancy by providing greater individual rights and protections at the state level. This Article seeks to highlight state constitutional power as an important counter to Article V’s continuing impediment to achieving Jefferson’s constitutional philosophy. Constitutions belong to the living generation.

Though most recover from COVID quickly, countless others remain chronically ill. Five years after the start of the pandemic, Long COVID continues to harm the economy, forcing thousands from employment at a time when businesses are struggling to find workers. With over thirty million individuals in the United States having contracted Long COVID, the illness cannot be dismissed as merely malingering or psychosomatic in nature.

With no diagnostic test for identifying Long COVID, skepticism about the illness persists. Many are scared to acknowledge their affliction with the disease and fear being stigmatized. Those who suffer silently struggle to perform their job or leave employment altogether, thereby denying the economy of good workers. The workplace implications of this illness must no longer be ignored, and a new approach to addressing Long COVID is needed.

This Article provides a framework to help these workers, proposing the adoption of “The Long COVID Doctrine.” Through education, accommodation, leave coverage, access to benefits, and a renewed focus on mental health, this framework offers a comprehensive approach to this pervasive problem. This doctrine further provides a fresh look at how the Americans with Disabilities Act should apply to workers suffering from this condition. This multi-faceted approach can help avert the devasting effects this illness has had on the economy and restore the rights of these struggling employees.

In recent years, variations on Engels’s concept of social murder have been adopted into British legal and sociological lexicons to conceptualize the state’s reckless sacrifices of its most vulnerable populations—people deemed socially undesirable, legally undeserving, and economically redundant. The state allows these populations to die a multitude of deaths by failing to protect them; notably, victims of social murder are relegated to society’s underclasses, if not completely excluded from the body politic, before they are physically eliminated. Social murder is neither genocide nor ethnic cleansing; instead, social murder captures the elimination of groups of people via atrocious events for which the state bears indirect or partial responsibility, through calculated abandonment instead of specific intent.

Social murder takes place in the United States, too, though it has yet to be recognized. This Article undertakes the task of introducing the concept of social murder into the American legal lexicon, explaining how the United States employs social murder as a necropolitical governance technology, and sounding an alarm concerning the likely increase in social murders as corporate authoritarianism and fascism threaten to overtake democratic rule of law. The Article makes the claim that because instances of social murder in the United States necessarily involve breaches of enforceable agreements as well as the democratic social contract, social murder is best analyzed through social contracting theory. Social murder should be viewed not simply as catastrophe, but as either extreme breach of the social contract, or as the performance of antisocial contracting that relies upon culling as governance.

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in part because the harm of racism is systemic, making it nearly impossible to attribute to a single actor. As a result, contracts cannot be fixed by declaring that contracting should be fair and making it a cause of action—instead we must address the underlying social issues that make unfair contracting economically rational. This is in part because contract law is the law of outcomes and not intentions, but 1981 mandates a deviation from this norm, requiring the court to explore the why of contract decisions. To enforce 1981 as intended, under modern conditions, requires altering the nature of contracting and shifting the burden of addressing systemic racism to the free market by analyzing economic choice—an approach that is antithetical to capitalism. Or it requires making America a place where all persons enjoy rights and lives equal to those as white citizens—an outcome that is not feasible without addressing systemic racism.

In the United States, poor children’s access to necessary healthcare is determined more by geography than medical need. This variation is not the result of thoughtful local tailoring but of excessive state autonomy and passive federal oversight. The result is a fragmented and unequal system that obscures accountability and fails the Nation’s most vulnerable children.

Building on scholarship showing how decentralized implementation of federal social programs can erode America’s social safety net, this Article examines how one of Congress’s most ambitious entitlements for children—Medicaid’s Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit has been quietly undermined. In light of formidable political and legal obstacles to wide-scale reform, this Article contends that bottom-up strategies, through state-based litigation and grassroots legislative advocacy, offer the most viable path forward. Using EPSDT as a case study, this Article reveals both the structural perils of cooperative federalism and the possibilities of restoring children’s healthcare rights from the ground up.

In the one-hundred-year period since the enactment of the Federal Arbitration Act of 1925 (the Act), arbitration in the U.S. has become a battlefield embroiled in a multitude of contract law doctrines and competing arbitration jurisprudence concerning what rights can be contracted away. This battlefield has become particularly grisly with regards to the increased use of arbitration clauses in contracts with adhesive qualities between business entities and consumers. This Article seeks to confront and lay the foundations for resolving a concern raised by many arbitration scholars: scholars who argue that the use of arbitration clauses in contracts of adhesion is directly correlated with a loss of access to justice by the consumers subject to such clauses. Such scholars contend that consumers are less likely to exercise a right to arbitrate than they would be to seek out “their day in court” before a judge. These scholars further assert that the lack of transparency that marks arbitration reduces societal observation and feedback necessary to continuously improve the justice dispensed by the arbitrations that do take place. They conclude that the general treatment of consumer small-value claims (those that may be so small as to be considered almost frivolous) provides cover for small injustices perpetrated by corporate entities that, in the aggregate, result in incalculable societal harms and illicit corporate gains. These scholars often conclude that the dis-assemblage of the current arbitration system through formal or informal means is the solution that will increase access to justice for consumers.

This Article engages with the concerns of said scholars yet contends that the procedures currently in place for determining and exercising arbitration rights are missing a procedural step that would have the potential to encourage consumers to more adeptly exercise their arbitration rights and access justice within the current jurisprudential system. That procedural step is tied to the concept of consent, embedded in contract law, and, ultimately, is an expression of the freedom to contract that the existing jurisprudential landscape seeks to protect. This Author proposes that the timing of decision-making regarding the nitty-gritty of the arbitration processes navigated by a consumer may make all the difference for 1) how individual consumers seek out justice via arbitration and 2) how such individual arbitrations may effect greater societal engagement with arbitration, leading to 3) greater accountability for perpetrators of civil economic injustices considered “frivolous” in isolation yet potentially catastrophic when taken in aggregate. This Author identifies the stage of a dispute just before arbitration takes place as the appropriate time to obtain what this Author terms “True Consent”—consent that is knowledgeable because it is obtained at the point in time when the consumer is most invested in understanding the consequences of the procedural choices at issue. In other words, this Author seeks to pinpoint the moment when, if ever, the consumer is most likely to engage with the arbitration process and exercise a conscious choice in how an arbitration will proceed, and then advocates for legislation to empower that choice.