The President Told Me To: The Public Authority Defense in the Trump Era
After hundreds were charged in connection with the events of January 6, 2021, several defendants argued they were only doing what President Trump told them to. More specifically, they raised the public authority defense as articulated in the U.S. …
Radical Constitutional Change
At defining points in American history, there have been radical constitutional changes, defined as massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles and widely accepted frameworks are discarded …
Local Rules
Federal courts have been making their own rules—“local rules”—since the First Judiciary Act. These rules, which operate alongside the Federal Rules, govern all aspects of the litigation process, from the initial filing and case assignment in the …
The Fourth Amendment’s Hidden Intrusion Doctrine
The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This Article challenges the assumption that the same quantum of evidence can meet the …
Free Speech, Breathing Space, and Liability Insurance
An important piece of the “speech-tort” picture has been almost completely missing from doctrinal and policy analysis: the role played by liability insurance in protecting speech. In New York Times Co. v. Sullivan, the Supreme Court began adopting …
Deterring Unenforceable Terms
Contract law doesn’t work the way most people—that is, most nonlawyers—think it works. People think that if they agree to a contract, they are bound by its terms—no matter if those terms are unfair or legally unenforceable. But that’s not correct. …
The Association Game: Applying Noscitur a Sociis and Ejusdem Generis
The Supreme Court has applied noscitur a sociis, often called the associated words canon, in many notable decisions—including the recent Fischer v. United States. This canon has a longstanding history in American jurisprudence, but interpreters …
Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record
In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) …
Fourth Amendment Trespass and Internet Search History
Browsing the internet is an everyday activity for many Americans. Law enforcement has capitalized on this reality by employing a novel investigative technique: reverse keyword search warrants. Keyword warrants allow investigators to obtain detailed …
The Right Thing in the Wrong Place? Unstable Dicta and Aesthetics’ Gradual Incursion Into the Traditional Police Power Justifications
Aesthetic regulation is fast becoming a pervasive feature of many cities’ and states’ zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning—itself an exercise of the well-recognized but somewhat …
Political Mootness
Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress’s subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both …
Antitrust’s Interdependence Paradox
Price-fixing conspiracies are the “supreme evil” that Congress intended antitrust laws to deter and to punish. Because price fixers face ten-year prison sentences, criminal fines, and private liability often measured in the hundreds of millions of …
Free Speech as White Privilege: Racialization, Suppression, and the Palestine Exception
Free speech is under siege. This is not to say that all speakers and viewpoints are at equal risk—some voices receive support and protection, while others are subject to threats and suppression. Pro-Palestinian speech falls into the latter category. …
The Unenumerated Power
Scholars and courts have long viewed unenumerated powers and rights as constitutionally dubious. This skepticism has produced far-ranging effects: most recently, it has undergirded the Supreme Court’s invalidation of privacy rights. Many others have …
Solitary Confinement, Human Dignity, and the Eighth Amendment
The harms of solitary confinement have been well-documented for centuries, yet the practice persists. Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people remain confined in solitary …
An Alternative to Constraining Judges with Constitutional Theories: The Internal Goods Approach
Concerns about judges using their own personal moral beliefs in deciding cases, the difficulty in weighing competing moral principles in America’s liberal and pluralist society, and concerns about judges reaching an opinion under only the guise of …
Abortion’s New Criminalization—A History-and-Tradition Right to Health-Care Access After Dobbs
Since Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade as contrary to the nation’s history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the …
The Radical Fair Housing Act
This Article uncovers the radical logic at the core of the Fair Housing Act (“FHA”). It is a law which can question and remake the underlying structure of housing markets, not just police individual transactions within those markets. The FHA is …
Interpretive Lawmaking
For nearly 100 years, prevailing American legal thought has rejected the idea that there can be unwritten bodies of law that judges ascertain and apply just as they do written law. Instead, the story goes, the only preexisting sets of legal rules …
Shamed
Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of shaming sanctions and …