Vol. 104 Issue 4

John Adams was exasperated. The United States was caught in the middle of escalating tensions between Great Britain and France, and Adams believed himself powerless to help. In a letter to his wife, Abigail, Adams blamed his sense of impotence on his position as the nation’s first vice president—a role he castigated as “the most insignificant Office that ever the Invention of Man contrived . . . and as I can do neither good nor Evil, I must be born away by Others.” Vice President Adams’s frustration stemmed from the constitutional ambiguity surrounding his office. Hurriedly discussed in the final weeks of the Constitutional Convention, the vice presidency was a bizarre creature, occupying responsibilities under both Article I and Article II of the U.S. Constitution. The debates at the state ratifying conventions added to the confusion as Federalists and Antifederalists squabbled over the vice presidency’s impact on separation of powers and whether the Vice President was a legislative official, an executive official, or an infusion of both. . . .

Lower courts supposedly follow Supreme Court precedent—but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent courts of appeals’ decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice—which I call “narrowing from below”—challenges the authority of higher courts and can generate legal disuniformity. But it is also beneficial. Narrowing from below allows lower courts to update obsolete precedents, mitigate the harmful consequences of the Court’s errors, and enhance the transparency of their decisionmaking process. This Article contends that narrowing from below is usually legitimate when lower courts adopt reasonable readings of higher court precedent, even though those readings are not the most persuasive ones available. This conclusion holds true—with some significant modifications—under multiple scholarly models of vertical stare decisis, including models that view higher court rulings as legally authoritative, comparatively proficient, or usefully predictive. Understanding narrowing from below as a legitimate activity also points toward a new “signals” model of vertical stare decisis. Under this model, lower courts follow the Court’s relatively informal cues to resolve ambiguity in conventional precedent, including by narrowing from below. . . .

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host of undertheorized questions about how the police are treated when they become the subject of criminal prosecutions. . . .

Since the Supreme Court’s opinion in Baker v. Carr, the political question doctrine has been viewed as consisting of textual and prudential factors. How these interrelate, and which type of factors to favor if these clash, has led to considerable confusion. In the recent case of Zivotofsky ex rel. Zivotofsky v. Clinton, Chief Justice Roberts may have attempted to settle these concerns by ignoring prudential factors altogether, characterizing political questions as concerned only with textual constraints. . . .

In this Article, I describe how Holmes, Hohfeld, and other legal realists deployed the jural character of the privilege status to debunk the libertarian narratives of “classical legal thought.” I then present three doctrinal areas in which contemporary American legal discourse seems to ignore these realist analytics by mistaking the privilege status for a private sphere of liberty rather than recognizing it as a state-imposed, legal relationship between parties. I conclude that the vitality of this error—reflected not only in the recent revival of explicit libertarian thought in constitutional and private-law scholarship, but also in the implicit starting point of much mainstream American legal doctrine—can be traced in part to the success of mid-twentieth century legal elites in domesticating the legal realist critique by framing realism in distinctly procedural and institutional, rather than substantive and ideological, terms. . . .

Public interest lawyers often bring large-scale cases against government defendants for injunctive relief as class actions. Until recently, their class certification motions routinely succeeded, enabling plaintiffs to obtain sweeping remedies that have required fundamental reforms to government policies and practices. In recent years, however, the procedural law regulating the public interest class action has changed dramatically, with recurring doctrinal problems splitting the federal courts. Should a nascent trend against class certification continue, class action doctrine will soon present a formidable obstacle—possibly a barrier—to the successful prosecution of a sort of litigation that has produced innumerable changes to prisons, foster care systems, and other government agencies and services over the last fifty years. . . .

The Arctic is a homeland to many diverse indigenous communities with distinct histories, cultures, and livelihoods. Yet the communities all share a unique relationship with the Arctic, and they closely depend on the Arctic environment and their ability to reside on their traditional lands for cultural and economic survival. According to the Arctic Human Development Report, approximately four million indigenous peoples inhabit the eight Arctic countries: Canada, United States, Russia, Finland, Sweden, Norway, Iceland, and Denmark. Notably, the majority of the inhabitants (comprising more than one hundred ethnic groups) live in the Russian Arctic. . . .