Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible--provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept's support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism. This Article challenges that conventional account by demonstrating that antisubordination's career has been far more protean, complex, and--above all--strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. Indeed, it is impossible to understand last Term's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination's multiplicity. That decision introduced "antisubordination" into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with antisubordination's complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action's constitutionality. It will no longer do, however, simply to ignore antisubordination's considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas's much-debated jurisprudence but also clarifies our nation's garbled constitutional discourse.

The article argues that U.S. states should adopt a new strategy for regulating employment arbitration that deter formation of objectionable contracts. Topics discussed include a review of the last fifty years of Supreme Court arbitration jurisprudence, evidence on the pervasiveness of employment arbitration and examples of how states can deploy this strategy.

The financial crisis exposed major fault lines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency--the Consumer Financial Protection Bureau--and changed the structure and function of these markets. Consumer advocates cheered reforms as welfare enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now available, this Article examines the successes and failures of the consumer finance reform agenda. Specifically, it marshals data from every zip code and bank in the United States to test the efficacy of three of the most significant postcrisis reforms: in the debit, credit, and overdraft markets. The results are surprising. Despite cosmetic similarities, these reforms had very different outcomes. Two (changes in the credit and overdraft markets) increase consumer welfare, while the other (in the debit market) decreases it. These findings run counter to prior work by prominent legal scholars and encourage reevaluation of our (mis)conceptions about the efficacy of regulation. The evidence leads to several insights for regulatory design. First, banks regularly levy hidden fees on consumers, obscuring the true cost of financial products. Regulators should restrict such practices. Second, consumer finance markets are regressive: Low-income customers often pay higher prices than their higher-income counterparts. Regulators should address this inequity. Finally, banks tend to discourage regulation by promising their costs will be passed through to consumers. Regulators should not be overly swayed by their dire warnings.

There is widespread consensus that the Great Recession did not have to be as "Great" as it was; had regulators acted earlier, its consequences would have been less severe. Two explanations are typically offered for early inaction. The first is that crises occur unexpectedly, so there is little time to respond aggressively. The second is that even regulators who suspected a downturn was imminent lacked the legal authority to intervene. This Article disputes these myths. First, empirical evidence demonstrates that more than a year elapsed between the first tremors in financial markets and the crash. Second, legal analysis illustrates that regulators had at their disposal significant authority to bolster banks. In fact, they used this authority with respect to small banks but not with large, systemically important firms. There is an alternative explanation for the tepid initial response to the crisis. Regulators' default rule is inaction until regulatory measures of bank health signal distress. These measures are slow to update--in many cases, the day before banks failed, their regulatory capital measures suggested no cause for concern. In the absence of significant change, regulators will inevitably be firefighting future financial crises ex post rather than successfully policing financial markets ex ante. The reticence to forestall capital disbursements as the COVID-19 crisis has raged is a testament to difficulties faced by regulators today, in which the default rule as a crisis begins is inaction rather than action. The next crisis can be prevented, but to do so will require changing the default rule. This Article proposes a way forward, advocating for automating aggressive action when financial markets indicate distress is likely. Such reform will finally make costly bank failures a relic of the past.

This paper was presented at the conference organized by the De Statutis Society, "La libertà di decidere: da Cento a Cento, 1993-2024; Trent'anni di studi sugli statuti," June 1, 2024, in Cento, Italy. It describes the origins and development of the Yale Law Library's Italian Statute Collection, the largest collection outside of Italy. It discusses the need for an English-language guide to the genre, and offers suggestions on the value of Italian city statutes for the history of legal literature and for the growing field of book history.

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw-but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women's quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law. This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law. But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

References to eugenics in recent abortion opinions—including Dobbs v. Jackson Women’s Health Organization—have only begun to attract scholarly attention as a distinctive form of constitutional discourse. In the early twentieth century, the term “eugenic” appeared frequently in legal, scientific, and other books, as a policy objective or subject of scientific study concerned with “improving” the quality of the nation’s “racial stock.” After peaking in the 1910s, use of the term steadily declined in the World War II era as Western democracies came to repudiate the politics of Jim Crow and the Holocaust. Usage spiked again at the turn of the century, a period when historians began critically to examine the eugenics movement in Europe and the United States. As condemnation of eugenics has grown, the term “eugenic” has become a term of opprobrium—a way to shame or discredit.

No one can be certain precisely what “democracy” is, but everyone seems to agree that it is in danger. Since the beginning of the pandemic, warnings of “toxicity,” “vitriol,” and other ill humors infecting the body politic have invaded mass media and political discourse, while the foundations of our civic order—“truth,” “facts,” and “civility”—have been seen to erode to the point of collapse. Although the exact cause of the present rupture in the social and epistemic fabric is hard to pinpoint, many observers seem to agree that the internet is to blame. Online algorithms are found to spread “misinformation” and “disinformation,” while anointed experts attribute unexpected outcomes of public events, from election results to the verdicts in defamation suits, to online campaigns by malicious “bots.” A New York Times opinion piece from June 2021 warned readers against examining or analyzing claims found online, since the impulse towards curiosity “allows grifters, conspiracy theorists, trolls and savvy attention hijackers to take advantage of us.” The atmosphere of confusion and distrust not only pervades public discourse in the English-speaking world, but increasingly spills beyond it; the phrase “fake news” has entered, untranslated, into political discourse in France, where a law criminalizing false statements online fuels an acrimonious debate.