Faculty Working Papers

Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Research Paper Series

Recent Working Papers:

Trade Associations, Group Boycotts, and the Collective Use of Market Power

02-2026 John M. Yun

Trade associations can generate substantial procompetitive benefits by supplying industry expertise, developing standards and certifications, and mitigating information asymmetries through the collective knowledge of its members. At the same time, vesting an organization with authority to represent the shared interests of marketplace rivals creates an inherent tension. There is often a fine line between cooperation that benefits consumers and collusion that harms them, including through group boycotts.

This Article examines the treatment of group boycotts under the antitrust laws and proposes an economically grounded framework for categorizing distinct types of cases to assess when such conduct constitutes an antitrust violation. This categorization is based on the nature of the restraint and the level of the supply chain at which the effects are felt. A central contribution of this approach is to clarify that trade association conduct—including group boycotts—often involve different objectives, can produce different competitive harms, and can implicate different relevant markets along a supply chain. The Article further considers how the presence of a multisided platform affects the competitive analysis in trade association disputes.

The Article then applies the framework to X Corp. v. Global Alliance for Responsible Media (GARM), a recent antitrust challenge against a coalition of advertisers. X alleges that GARM unlawfully conspired, under the guise of brand-safety standards, to orchestrate an advertising boycott of X. GARM, by contrast, contends that any advertiser withdrawals involved only a subset of members, were not coordinated, and reflected independent, unilateral decisions driven by brand-safety concerns. Further, GARM contents that its actions are protected speech under the First Amendment. This Article concludes with an assessment of the merits of X’s complaint and the validity of GARM’s First Amendment defense under guiding Supreme Court precedents.

Judicial Nominations in President Trump’s Second Term: Form and Substance

02-2026 Robert Luther III

Drawing on my experience as a former Trump White House lawyer responsible for judicial nominations during the initial two years of President Trump’s first term, this essay will address three dimensions of the judicial nominations landscape at the start of his second term: (1) federal judicial selection in recent years; (2) the claims about what judicial selection will purportedly look like during President Trump’s second term; and (3) as someone with some visibility into the current White House Counsel’s Office’s process, what I anticipate judicial selection will actually look like during President Trump’s second term.

Three False Rumors About Federal Judicial Clerkships

01-2026 Robert Luther III

Since 2019, over 200 of my former students secured federal judicial clerkships. Over sixty Scalia Law graduates will commence federal clerkships from 2025-28, and we secured four U.S. Supreme Court clerkships through the 2022-26 terms. During the 2024-25 term, Scalia Law had over seventy graduates clerking for judges across the country, including thirty-two on federal courts, with fifteen of them on the U.S. Courts of Appeals and one on the U.S. Supreme Court. Because Scalia Law graduates only around 130 students per year, it’s one of the top law schools in the country for clerkships by percentage of class. And that certainly applies if you want to clerk for a judge appointed by President Donald J. Trump—trust me. That said, I’d like to bury three myths about clerkships that I hear from students every year—but never seem to die.

Time for a New Restatement

01-2026 Thomas P. Gallanis

In February 2025, the author wrote by email to the American Law Institute’s Director, Judge Diane Wood, encouraging the ALI to consider whether the time had come to undertake a new Restatement of the law of trusts. Director Wood replied swiftly and kindly that “[t]his possibility had not been on my radar” but that the ALI would begin thinking about “the best way to take a closer look at your suggestion.” The ALI now is considering the idea.

This brief article is aimed at building support for a new Restatement. The article also examines whether a new Restatement of the law of trusts might be bundled with a new Restatement of the law governing wills and other donative transfers.

Facilitating Fintech’s Future: How Congress and Regulation can Support Innovation in Fintech, Earned Wage Access and Buy Now, Pay Later Products

01-2026 Todd J. Zywicki

Technological innovation has long been a central driver of competition, consumer choice, and financial inclusion in U.S. consumer financial services. From the advent of standardized credit reporting and automated underwriting to online banking and digital payments, innovation has repeatedly expanded access while reducing costs and discriminatory practices. Today, fintech represents the latest and most consequential wave of this evolution. While some innovations, such as artificial intelligence and alternative data underwriting, are genuinely novel, others, including Earned Wage Access (EWA) and Buy Now, Pay Later (BNPL), are modernized versions of well-established financial practices delivered more efficiently through technology.

This article argues that fintech’s benefits accrue most strongly to consumers historically underserved by the traditional financial system, including younger, lower-income, rural, and minority households. Drawing on a broad range of empirical research, it shows that fintech products increase access to credit, reduce reliance on high-cost alternatives, lower transaction costs, and mitigate demographic disparities in pricing and approval rates. Evidence indicates that EWA helps workers smooth income volatility, avoid overdraft fees and payday loans, and improve job retention. BNPL enables consumers to manage liquidity and spread the cost of purchases, usually with no interest, without increasing overall financial distress. Moreover, while critics have expressed concern that both EWA and BNPL could lead to increased financial distress, empirical evidence to date indicates that these speculative concerns are unfounded.

Despite these benefits, fintech innovation faces growing regulatory risks. The article contends that inconsistent and overly burdensome state regulation, arbitrary asset thresholds, and misguided restrictions threaten competition and consumer welfare by raising costs and limiting choice. It concludes that a coherent national regulatory framework—emphasizing competition, proportional oversight, and evidence-based intervention—is essential to preserve fintech’s promise. Properly designed regulation can protect consumers while allowing innovation to flourish, particularly for those with the fewest existing financial options.

Title VI Hostile Environment Law in the Shadow of Antisemitic Violence

01-2026 David E. Bernstein

Following Hamas’s October 7, 2023 attack on Israel, American universities have faced a wave of Title VI complaints alleging deliberate indifference to antisemitic harassment of Jewish students. Many of these claims arise in the context of anti-Israel campus protests featuring rhetoric that, while deeply offensive and often perceived as endorsing violence, is ordinarily protected by the First Amendment. Courts and commentators have increasingly concluded that such protected speech cannot form any part of a cognizable hostile-environment claim. This Article argues that this conclusion rests on a fundamental misstatement of both Title VI doctrine and the nature of the claims being advanced.

The Article contends that Jewish students’ post–October 7 claims do not seek to impose liability for protected political expression. Rather, they allege that universities have failed to address unprotected antisemitic conduct—including physical assaults, threats, intimidation, vandalism, unlawful encampments, and selective nonenforcement of neutral conduct rules—that materially interferes with access to education. Within this framework, protected speech plays a limited but legitimate role: not as actionable harassment, but as contextual evidence bearing on whether a university’s inaction in the face of unprotected conduct reasonably gives rise to fear of violence and intimidation.

Drawing on extensive documentation of antisemitic assaults and threats on campuses and in the surrounding society, the Article argues that the “reasonable person” standard governing hostile-environment claims must be applied in light of contemporary conditions. When violent rhetoric coincides with lawless behavior and administrative indifference, Jewish students’ fear for their physical safety cannot be dismissed as hypersensitivity to ideas. Properly understood, Title VI permits—indeed, requires—universities to enforce neutral conduct rules to mitigate hostile environments without suppressing protected speech. Courts therefore err when they dismiss such claims at the pleading stage by conflating demands for physical security with demands for ideological conformity.

The Misuse of the Bayh-Dole Act and the Folly of Price Controls on Drug Patents

11-2025 Adam Mossoff

This chapter in Bring Medicines to Life: How Intellecutal Property Enables Innovation in the Life Sciences analyzes and critiques the “price control theory of the Bayh-Dole Act,” demonstrating that this decades-long campaign to use the Bayh-Dole Act to impose price controls on drug patents is both statutorily unjustified and policy folly. First, it provides novel statutory analyses of the Bayh-Dole Act to show once again that the text, structure, and function of the march-in power in § 203 precludes the National Institutes of Health (NIH) from using it to grant licenses to generic drug companies to reduce prices of prescription drugs. Second, it addresses the economic errors underlying this price-control agenda even when the NIH is legally authorized in other provisions of the Bayh-Dole Act to impose conditions in its grant agreements and licenses, such as affordability mandates or reasonable price restrictions. Invoking this other statutory power in the Bayh-Dole Act, the Biden Administration adopted an “affordability” mandate in all licenses of NIH-owned patents in early 2025, and the Trump Administration officially implemented this policy on October 1, 2025. But this is policy folly. Contrary to conventional wisdom, almost all R&D funding for prescription drugs is from private sources. Given this economic data on drug R&D, a similar price-control policy adopted by the NIH failed. In 1989, the NIH adopted a “reasonable pricing” condition in its research grant agreements and licenses for any resulting prescription drug. This policy resulted in a collapse of NIH research agreements and licenses. NIH Director Varmus thus withdrew the “reasonable pricing” mandate in 1995, recognizing that it was contrary to the commercialization goals of the Bayh-Dole Act. The 2025 “affordability” mandate in NIH licenses will similarly undermine the commercialization of biomedical innovations created by NIH scientists. In sum, price controls on drug patents contravene the Bayh-Dole Act’s statutory text and function in harnessing the patent system as an engine of healthcare innovation through patent licensing and technology transfer.

Immigration is Not Invasion

11-2025 Ilya Somin

In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as “invasion” under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as “invasion.” As James Madison explained in 1800, “Invasion is an operation of war.” Illegal migration and drug smuggling do not qualify.

Part I summarizes the history of the “invasion” debate and currently ongoing litigation over it. Part II explains why the broad interpretation of “invasion” is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to “invasion” in the Federalist Papers.

In Part III, I consider the meaning of “invasion” in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters.

Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress’ power to declare war, and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of “invasion.” They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.

Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of “invasion” or the factual issue of whether an “invasion” – properly defined – has actually occurred.

International Finance and the Geopolitics of Market Infrastructures

10-2025 Paolo Saguato

This Article examines how financial market infrastructures (FMIs)—long regarded as neutral, technocratic utilities—have become instruments of geopolitical influence and economic statecraft. Drawing on three case studies—SWIFT sanctions, EU-UK post-Brexit equivalence disputes, and the EU’s withdrawal of FMI recognition for India, South Africa, and the United Arab Emirates—this article shows how FMIs are increasingly ‘weaponized’ as tools of financial diplomacy. It argues that mutual recognition and equivalence regimes, originally designed to foster cross-border regulatory coordination and financial stability, have evolved into levers of jurisdictional power. These mechanisms now serve both ‘offensive’ purposes (such as sanctions) and ‘defensive’ strategies (such as re-shoring euro clearing), revealing their political and discretionary nature. Yet, this transformation is not necessarily a design failure. Rather, it reflects the adaptability of these regimes to a pluralistic international legal order where sovereignty and market access must be balanced. The Article contributes to the literature on international financial governance by analyzing how FMI access decisions sit at the intersection of law, markets, and geopolitics—and by suggesting how these dynamics might reshape global financial integration.

How Speech-Based Immigration Restrictions Threaten Academic Freedom

10-2025 Ilya Somin

Since he returned to office in January 2025, President Donald Trump’s administration has engaged in a systematic effort to deport non-citizen university students and academics who express views inimical to those of the US government on a number of issues. Litigation over these attempted deportations has focused on First Amendment free speech issues. But speech-based deportations of students and academic university employees also threaten academic freedom. This chapter explains how and why.

Part I briefly summarizes the Trump Administration’s campaign of speech-based deportation of non-citizen students and academics. That campaign focuses primarily on students with anti-Israel and pro-Palestinian views regarding the ongoing war in Gaza. But its logic could just as easily justify targeting a wide range of other viewpoints.

Part II presents an overview of the idea of academic freedom. That principle is related to, but distinct from freedom of speech. In some respects, it is narrower than the latter. But academic freedom does nonetheless require faculty and researchers to be able to consider and express a wide range of viewpoints on the issues they work on, and to be free of sanctions for viewpoints they express outside of the context of their academic work. The same goes for students. Part III explains how speech-based deportations undermine the academic freedom of both non-citizens subject to deportation, and US-citizen scholars and students. The former effect is obvious. The latter is more indirect, but nonetheless large. Speech-based deportations of foreign students and academics chills the speech of their US-citizen colleagues and also deprives the latter of the opportunity for valuable interactions that could enhance their research, teaching, and learning. What is true of speech-based deportations is also true of speech-based exclusions of potential migrants even before they are allowed to set foot in the United States.

Finally, Part IV considers multiple possible rationales for speech-based deportations and exclusions. Ironically, some of these rationales—currently advanced by a right-wing administration—turn out to be similar to traditional left-wing rationales for restrictions on “hate speech.” Whether deployed by the right or the left, the rationales are badly flawed. If correct, they cannot logically be limited to suppressing speech by non-citizens. Bigoted or otherwise reprehensible speech by US citizens creates comparable or greater dangers.

Lessons for Antitrust from the Capital One-Discover Merger: Is There a Subprime Market in Credit Cards?

09-2025 Todd J. Zywicki, Julian Morris, Eric Fruits, Ben Sperry

In April 2025, the Office of the Comptroller of the Currency cleared the proposed $35 billion merger of Capital One and Discover Bank, making the combined company the third-largest credit card issuers by volume. Because of the highly decentralized nature of the U.S. credit card industry, the merger typically would draw minimal regulatory scrutiny. Because of the significant market share of the two entities in the so-called “subprime” credit card market, however, the merger presented a novel question at the intersection of competition policy and consumer financial services—whether the “subprime” market should be analyzed as a separate market for antitrust purposes. According to one estimate the combined entity will have approximately 30% of the subprime market at the time the merger is consummated.

The OCC did not specifically address whether there was a “subprime” market that should be treated as a separate market for purposes of analyzing the effect on consumers and competition. We agree with that analysis. Although the term “subprime” is used colloquially, defining a “sub-prime market” lacks a determinate and stable definition for purposes of rigorous antitrust analysis. Moreover, consumers who participate in the subprime market are subject to constant change and turnover, moving frequently between the subprime and prime markets. Finally, given the permeability of any demarcation between “prime” and “subprime” consumers, other large credit card issuers already have a presence in the subprime market and could easily expand their existing operations if Capital One-Discover attempted to increase prices for consumers.

Religious Freedom as Freedom

09-2025 Helen M. Alvaré

In recent decades, the exercise of religious freedom is increasingly associated with oppression. This is not only due to the disagreement between religions and some governments concerning sexual expression matters—contraception, abortion, same-sex relations, and transgender identity—but is also due to diverging convictions about the substance and sources of freedom. This Article will examine a current and highly visible set of convictions about the contents of human freedom, which together suggest that a thriving religious witness threatens freedom itself. These convictions often surface in the context of laws touching upon sexual expression. It will then contrast these convictions with those found in earlier and largely non-sexual-expression law, according to which religious witness enhances human freedom. Finally, it will offer four observations about these contrasting notions of freedom.

Law Enforcement with Rent Dissipation

08-2025 Murat C. Mungan, J. Shahar Dillbary

We consider a framework which brings together losses arising from rent-dissipation and the workhorse model of law enforcement. Governmental actors engage in a contest to share the proceeds from the enforcement of the law through monetary fines, which leads to rent-dissipation. This causes monetary sanctions to be costly, rendering the model used for studying nonmonetary sanctions a better fit for their analysis. The effect of rent-dissipation on optimal sanctions is directly related to the sanction elasticity of offenses measured at the classic optimum (i.e., where the expected sanction equals the direct harm from the offense). When offenses are inelastic, the optimal sanction is smaller than the classic optimum and it is decreasing in the degree of rent-dissipation; and a legislator who does not fully internalize contest costs chooses an overly-punitive sanction which is smaller than the classic optimum. The opposite results are obtained when offenses are elastic. We discuss implications and extensions.

Revocation on Divorce and the State as Heir: Fixing the Uniform Probate Code

08-2025 Thomas P. Gallanis

Suppose that, prior to a divorce, a testator devises the residue of his estate to his spouse if she survives him, otherwise "one half to my heirs and one half to my spouse's heirs." If the testator dies after the divorce and without revising the will, who is entitled to the residue? The answer under the Uniform Probate Code (UPC) will come as a surprise. One half of the residue will escheat to the state as the heir of the former spouse. The result arises from a glitch in the UPC inadvertently introduced when the UPC was revised in 1990. This Article identifies and analyzes the glitch and proposes a statutory solution for the Uniform Law Commission and the legislatures of enacting states.

Natural Property Rights

08-2025 Eric R. Claeys

Natural Property Rights presents a novel theory of property based on individual, pre-political rights. A just system of property protects people's rights to use resources, and it also orders those rights consistent with natural law and the public welfare. Drawing on influential property theorists such as Grotius, Locke, Blackstone, and early American statesmen and judges, as well as recent work in normative and analytical philosophy, Natural Property Rights shows how natural rights guide political and legal reasoning about property law. It examines how natural rights justify the most familiar institutions in property, including public property, ownership, the system of estates and future interests, leases, servitudes, mortgages, police regulation, and eminent domain. The book studies examples familiar from the law covering tangible resources; chattels, real property, energy, and water law. Thought-provoking and comprehensive, Natural Property Rights shows how property at once secures individual freedom and serves the common good.

Although Natural Property Rights repays study on its own, it also offers an important alternative to contemporary perspectives on property. In relation to philosophy and political-theory scholarship, Natural Property Rights justifies property as the object of a right. But the right is not grounded in autonomy as it is in the political theories of Robert Nozick and many other libertarians; it is grounded instead in foundations associated with perfectionism, eudaimonism, and human flourishing. And the book reminds philosophers and political theorists how many factors besides analytic concepts and normative foundations matter in property; it shows how legal property rights develop from practical reasoning and the specification of general prepolitical rights.

In relation to legal scholarship, Natural Property Rights offers an important alternative to the normative theories that loom largest today—Progressive property, law and economics, and expertise-driven approaches to property (as in Tahoe-Sierra Preservation Council v. Tahoe-Regional Planning Agency (2002) and Kelo v. New London (2005)). Consistent with Progressive property, natural law and rights link property to human flourishing. But natural law and rights still justify property as the object of an individual right, and not as an entitlement to do what regulators or judges think will contribute to flourishing in the relevant community. Consistent with the best law-and-economics scholarship, natural law and rights guide reasoning about the effects of recognizing property rights in law. But natural law and rights address familiar challenges faced by law and economics—about when and why legal systems have legitimate political authority to coerce citizens, with the state’s monopoly over violence, to obey efficient rules. And natural law and rights reconcile individual property rights with the public welfare as called for in expertise-driven approaches—without threatening individual freedom as those approaches do.

Is Racial Discrimination Ever Charitable?

08-2025 Thomas P. Gallanis

Is racial discrimination permissible for a charity? The question is salient and timely. Our nation faces a stark choice between two competing visions of how the law should assess racial discrimination. One view, articulated by Professor Ibram X. Kendi, among others, is that racial discrimination in favor of members of minority groups is an appropriate response to society’s prior discrimination against them. A competing view, articulated by the Supreme Court in SFFA v. Harvard, is that racial discrimination is odious tout court: eliminating racial discrimination means ending all of it.

This Essay tackles an aspect of the question that has not received much scholarly attention. The Supreme Court’s decision in SFFA v. Harvard has prompted commentary on racial discrimination and the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act of 1964, the latter of which prohibits discrimination by programs and activities receiving federal financial assistance. The commentary after SFFA v. Harvard also extends to Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, and Section 1981, which prohibits discrimination in, among other things, the making and enforcing of contracts. Recent actions taken by the Trump Administration vis-à-vis Harvard University raise the issue of racial discrimination as a basis for revoking federal tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. But little attention has been given to the law of charity, which derives from the law of charitable trusts. In order to qualify for tax exemption as a charity, a charity must be a charity. What does and should the law of charity say about racial discrimination after SFFA v. Harvard?

This Essay proceeds in four main parts. Part I examines the law of charity and its requirement that a charity must not violate public policy. Part II explores three Supreme Court decisions salient to public policy and racial discrimination. The public policy limitation in the law of charity derives from the law of charitable trusts, but it is influenced by federal law, including the Court’s decisions; also, state law influences federal law when federal courts determine the issue of federal tax-exempt status. Part III examines the legal landscape after the Court’s decision in SFFA v. Harvard. Part IV proposes a path forward, arguing that the time has come for state and federal courts and taxing authorities to declare that racial discrimination by a charity violates public policy irrespective of the race of the individuals harmed by it. A brief conclusion follows.

Public Choice Theory and Law

07-2025 Jeremy Kidd, Todd J. Zywicki

Public choice theory applies economic principles—especially rational self-interest, incentive structures, and methodological individualism—to the study of political and legal institutions. While traditionally used to explain legislative and regulatory behavior, this entry explores how public choice insights apply more broadly across the legal landscape. Concepts such as concentrated benefits and dispersed costs, rational ignorance, and rent-seeking help explain how legal actors—judges, litigants, bureaucrats, and interest groups—interact within institutional constraints. The entry examines how these dynamics shape the evolution of litigation, the behavior of administrative agencies, and even constitutional change. By grounding legal processes in the same incentive-driven analysis used in economics, public choice theory offers a powerful explanatory framework for why legal outcomes often diverge from publicly stated goals.

Should We Fear Personalized Pricing?

07-2025 John M. Yun

The practice of personalized pricing involves using information about a consumer to more accurately estimate an individual’s willingness-to-pay for a product to calibrate pricing to that individual. If the practice grows, what does this imply for consumer welfare—particularly for digital markets where there is an abundance of user data? While some consumers may end up enjoying lower prices and having greater access to markets, other consumers will likely end up paying higher prices relative to the counterfactual, that is, a world without personalized pricing but likely some other forms of price discrimination. Nonetheless, it is unlikely that all consumers are made worse off relative to the counterfactual. Additionally, there are reasons that mitigate the concern that the practice of personalize pricing will grow. First, there could be competitive pressure to not engage in the practice—as firms that explicitly avoid personalized pricing will have a competitive advantage in the eyes of consumers. Relatedly, firms that do engage in personalized pricing will likely be stigmatized in the market, which creates a strong disincentive to widely adopt the practice.

Wither Consumer Welfare? Antitrust in the Biden Years

07-2025 Douglas H. Ginsburg

The consumer welfare standard has been the lodestar of antitrust policy for more than four decades, ensuring predictable decision making by the Government’s antitrust agencies and the courts. From the beginning of his term, however, President Biden and his administration signaled their intent to embark on a different and more aggressive approach to antitrust policy. The FTC and the Antitrust Division of the DOJ proceeded to issue many new guidelines and policy statements, and to pursue novel theories in merger enforcement actions and civil litigation. The FTC also issued a substantive competition rule for the first time in decades, and significantly increased the information required to be submitted by firms seeking approval of a merger. The agencies deemphasized consumer welfare and economic analysis more generally, instead elevating the importance of market structure and other populist goals such as the preservation of small businesses. This, in turn, diminished the agencies’ persuasiveness in court, where they lost half of their merger cases. The most effective parts of the Biden administration’s agenda were those that aligned most closely with traditional economic principles, particularly in monopolization cases. The lesson to be drawn is that antitrust enforcement still is most successful and best preserves competition when it is guided by economic principles — in particular, the consumer welfare standard — rather than other goals.

The Supreme Court, Education, and the KKK in the 1920s

06-2025 David E. Bernstein

Meyer v. Nebraska and Pierce v. Society of Sisters present historians with a puzzle. The Court had refused previous opportunities to initiate a due process jurisprudence that expanded beyond freedom of contract and property rights. Why did the Court suddenly adopt a more aggressive understanding of the Due Process Clause in Meyer and Pierce?

As has been discussed elsewhere, there are several plausible and non-exclusive explanations. This article focuses on the Justices’ hostility to the Ku Klux Klan. The Klan had been a leading force behind laws regulating or banning private education, and the Court’s decisions in Meyer and Pierce likely in part reflected a pushback against the Klan’s agenda.

Part I of this Article discusses the Klan’s resurgence in the early 1920s and its role in sponsoring legislation targeting private schools. This included the Oregon compulsory public education law invalidated by the Court in Pierce.

Part II discusses the Court’s hostility to the Klan. This section discusses a significant anti-Klan ruling that has received little scholarly attention, the 1928 case of Bryant v. Zimmerman. In Zimmerman, the Court upheld a New York law requiring certain membership organizations, including the Ku Klux Klan, to register their membership lists with the state. The Court held that this requirement did not violate constitutional rights, particularly freedom of association or due process. Importantly, the Court’s holding was not based on a rejection of the notion that the Fourteenth Amendment protects the freedoms of private membership organizations. Rather, the Court focused on the malevolent nature of the Klan.

View More Faculty Working Papers