The Indian Treaty Power
Federal Indian law is experiencing a crisis of faith. In United States v. Kagama, decided 140 years ago, the Supreme Court granted Congress a “plenary” power over Indian affairs, rooted not in the Constitution, but rather in a paternalistic duty to …
What is Insurance for Tort Law?
This Article reexamines the relationship between liability insurance and tort law to answer a deceptively simple but foundational question: What is insurance for tort law? Building on prior work and responding to the recent call by Kenneth Abraham …
Evidence Law in the Age of Plea Bargaining
This Article challenges evidence law’s entrenched trial-centricity, arguing that this orientation has rendered the field increasingly misaligned with the reality of a criminal justice system in which trials are rare and plea bargaining predominates. …
The Moving Property Problem in Fourth Amendment Law
The Fourth Amendment’s ban on unreasonable searches and seizures has been interpreted by the Supreme Court to require many location-specific rules. There are different rules for searching homes, cars, spaces near people, and at the border. The …
Schauer’s Free Speech Comparativism
It is a great honour to make this contribution about Frederick Schauer. I am especially pleased that I can give voice to the many Australian scholars who had the pleasure of meeting and working with him and those who were influenced by his work..
Constitutional Acceptance in a Polarized Era
Frederick Schauer left an indelible mark on my thinking and my life. One of the most special aspects of his work, to my mind, was his exploration of the nonconstitutional grounds of constitutional law. The idea of Fred’s that has captivated me more …
Deepfakes, Photographs, and Trust in Evidence
In Fred Schauer’s final book, The Proof: Uses of Evidence in Law, Politics, and Everything Else, Fred argued that trust and truth matter now more than ever, and that the law of evidence contains important insights for navigating our ever-challenging …
Fred Schauer: A Truly Original Thinker
It is a great privilege to be part of this program honoring the late, wonderful Fred Schauer. I first met Fred after he had relocated to the University of Virginia, but we quickly became friends. Even before that, however, he had already become …
A Wonderful Professional RelationshipSurpassed Only by a Personal One
The late Frederick Schauer and I were longtime academic and personal buddies. We wrote academic articles together, managed an academic journal together, and exchanged academic ideas frequently. But we also played golf together whenever we could, and …
First-, Second-, and Third-Order Reasons in Legal Institutions, with First Amendment Examples
Suppose a group wants to hold a demonstration in a public park. Would the world be better off if they did? First-order reasons go into answering that question. How much would the demonstration disrupt the park’s use for relaxation and recreation? …
The Shaping of Information Flow in Law and Life
Fred Schauer showed how the law takes a messy, probabilistic world and uses rules to draw bright lines through it: liable or not, knowing or ignorant, guilty or innocent. Such neat categorical boxes are a feature, not a bug, for the law. They serve …
Foreword to In Tribute: Professor Frederick Schauer
The OnlyFans Economy: Intellectual Property’s Pivot from Scarcity to Authenticity
Generative AI is destabilizing the foundational assumption of intellectual property law: that creation is difficult, is expensive, and requires legal inducement. When machines produce text, images, and code at near-zero marginal cost, the …
Confessions Without Consequence: The Case for Attorney General Deference
The Supreme Court’s recent decisions in Glossip v. Oklahoma and Escobar v. Texas have surfaced an understudied and increasingly consequential phenomenon in American criminal law: the prosecutorial confession of error. Anglo-American courts have …
AI Rights for Human Safety
Artificial Intelligence (“AI”) companies are racing to create Artificial General Intelligence, or “AGI.” If they succeed, the result will be human-level AI systems that can independently pursue high-level goals by formulating and executing long-term …
Abolish Conspiracy
Criminal conspiracy seems as American as apple pie. Every state criminalizes conspiracy, and there are dozens of federal conspiracy statutes. The crime of conspiracy is the darling of prosecutors across the political spectrum. It has been wielded …
Tradition and Feminism in Constitutional Rights Adjudication
In recent years, “tradition” has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of speech, has looked to tradition to …
Clarity Before Crisis: Designing Legible Emergency Powers in Financial Regulation
This Essay responds to Samer Saffarini’s argument that post-Loper Bright judicial scrutiny can serve as a necessary check on regulatory overreach in financial crises. While that view is intuitively appealing, this Essay contends that it places too …
Post-Conviction Channeling
People seeking to vacate their criminal convictions face bleak prospects. The reasons for this are myriad, from deferential standards of review to blanket bans on entire categories of claims. Yet lurking beneath these contributors is another, …
Read But Not Understood? An Empirical Analysis of Consumer Comprehension in Homeowners Insurance
Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, …