Volume 110 — 2024
Issue 8
Presidential Adjudication
Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision-making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act …
Frictionless Government and Foreign Relations
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus should sometimes trigger concern, not celebration. We call these worrisome situations “frictionless …
Diversity by Facially Neutral Means
The decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFFA), invalidating the use of race in college admissions, reignites a pressing and critical question. Is the deliberate use of facially neutral means to achieve …
Sovereigns’ Interests and Double Jeopardy
In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal …
Issue 7
Adapting Conservation Governance Under Climate Change: Lessons from Indian Country
Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis …
History and the School Prayer Cases
In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent …
The Case for City Reparations
Once a political boogeyman, calls for Black reparations as a means to advance racial justice in the United States have become increasingly earnest, particularly in the wake of George Floyd’s murder. But among those who view reparations as morally …
Issue 6
Indiscriminate Data Surveillance
Working hand-in-hand with the private sector, largely in a regulatory vacuum, policing agencies at the federal, state, and local levels are acquiring and using vast reservoirs of personal data. They are doing so indiscriminately, which is to say …
Police Vigilantism
This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. …
Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine
The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial …
Issue 5
The Founders’ Purse
This Article addresses a grave originalist misstep in the new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the U.S. Court of Appeals for the Fifth Circuit held that …
The “New” Drug War
American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the …
A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision …
Internet Technology Companies as Evidence Intermediaries
Search warrants, subpoenas, and other forms of compulsory legal process are essential for legal parties to gather evidence. Internet technology companies increasingly control wide-ranging forms of evidence, yet little is known about how these …
A Case of Mistaken Authority: Reconciling Illinois v. Rodriguez, Originalism, and the Common Law
In the last few decades, the Supreme Court has largely turned to a history-based, originalist approach to the Fourth Amendment. Many scholars have been quick to laud the change, criticize the methodology, or argue their views of the historical …
Issue 4
Sacred Easements
In the last forty years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. When confronting threats to sacred lands, Native Americans stridently assert constitutional and statutory free …
Importance and Interpretive Questions
In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of …
The Impermissibility of Sex as a Voter Qualification
Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender …
Issue 3
Constitutional Rights and Remedial Consistency
When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the …
Separation of Structures
In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. …
Detained Immigration Courts
This Article traces the modern development and institutional design of detained immigration courts—that is, the courts that tie detention to deportation. Since the early 1980s, judges in detained immigration courts have presided over more than 3.6 …
Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue
This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for …
A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law
In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private …
Issue 2
Race in the Machine: Racial Disparities in Health and Medical AI
What does racial justice—and racial injustice—look like with respect to artificial intelligence in medicine (“medical AI”)? This Article offers that racial injustice might look like a country in which law and ethics have decided that it is …
The Education Power
Public officials are increasingly warring over the power to set fundamental education policies. A decade ago, disputes over Common Core Curriculum and school choice programs produced a level of acrimony between policymakers not seen since school …
Becoming the “Bill of Rights”: The First Ten Amendments from Founding to Reconstruction
The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be …
The Right to Remain Protected: Upholding Youths’ Fifth Amendment Rights After Vega v. Tekoh
In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983. Experts predict that this decision will …
Issue 1
First Amendment Disequilibrium
The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the …
Vagueness Avoidance
It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes that delegate enormous enforcement discretion to prosecutors and police officers. The constitutional void-for-vagueness doctrine promises to provide a …
Ordinary Meaning and Plain Meaning
With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between …
Making Section 1983 Malicious-Prosecution Suits Work
The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, …
Volume 109 — 2023
Issue 8
The Federal Government’s Role in Local Policing
For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or …
Multi-Textual Constitutions
We have long been taught that constitutions are either “written” or “unwritten.” But this binary classification is wrong. All constitutions are in some way written, and all constitutions contain unwritten rules. This false distinction moreover …
Sex Discrimination Formalism
Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic …
Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework
Before Roe v. Wade was decided, the Board of Immigration Appeals (“BIA”) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could be removed from or …
Issue 7
Defeating the Empire of Forms
For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock-full of terms that courts will not, or should not, enforce. Most think that the market for …
Suffering Before Execution
Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions …
Collateral Effects of Habeas Retrogression
Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are …
Issue 6
Municipal Immunity
Although qualified immunity has taken center stage in recent debates about police misconduct and paths to reform, this Article focuses on another doctrine that has been largely overlooked yet merits at least equal attention—the standards for holding …
Silencing Litigation Through Bankruptcy
Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a …
The Nullity Doctrine
The Federal Rules of Civil Procedure permit litigants to make changes to the substance of their initial pleading. Those changes raise a constitutional question when the initial pleading fails to establish a constitutionally required element of a …
Issue 5
The New Major Questions Doctrine
This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court …
Second-Order Decisions in Rights Conflicts
How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not …
A Clash of Constitutional Covenants: Reconciling State Sovereign Immunity and Just Compensation
When two bedrock constitutional guarantees come in conflict, which one prevails? This Note explores the clash between state sovereign immunity and the right to just compensation in inverse condemnation actions. When a state physically invades …
Issue 4
Relational Fairness in the Administrative State
The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. As a result, Supreme Court Justices and …
Bad Faith Prosecution
There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on …
Reconstructing Reconstruction-Era Rights
It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This …
Reconsidering The Legal Definition of Gambling: A Resuscitation of the Gambling Instinct Test
The modern chance-based test for gambling is fundamentally flawed. It is descriptively inaccurate, difficult to apply, and easily circumvented. Despite these shortcomings, the test is by-and-large the only test employed for the identification of …
Issue 3
Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic
In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government …
Patents’ New Salience
The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, …
How Clear is “Clear”?
This Article proposes a new framework for evaluating doctrines that assign legal significance to whether a statutory text is “clear.” Previous scholarship has failed to recognize that such doctrines come in two distinct types. The first, which this …
Parties or Not?: The Status of Absent Class Members in Rule 23 Class Actions
When should absent class members—individuals who are bound by and share in a class recovery but who are not active participants in the litigation—be treated as “parties” in Rule 23 class actions? This simple question has confused courts and …
Issue 2
Property against Legality: Takings after Cedar Point
In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the …
Disclosing Corporate Diversity
This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this …
Qualitative Market Definition
Modern antitrust law has come under intense criticism in recent years, with a bipartisan chorus of complaints about the power of technology and internet platforms such as Google, Amazon, Facebook, and Apple. A fundamental issue in these debates is …
Harmonizing Federal Immunities
This Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system. It ties the Court’s shift in federal tax immunity to a broader philosophical …
Dynamic Tort Law: Review of Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History
Rarely does a book—let alone one on torts—come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again …
Issue 1
Severability First Principles
The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. …
Government’s Religious Hospitals
States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the …
Property’s Boundaries
Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property …
Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches
The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does …
Volume 108 — 2022
Issue 8
White Injury and Innocence: On the Legal Future of Antiracism Education
In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased …
Defining “Substantial Burdens” on Religion and Other Liberties
The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the …
Criminal Violations
Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a …
Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults
The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, …
Issue 7
The Promise and Perils of Private Enforcement
A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent …
Federalism, Private Rights, and Article III Adjudication
This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have …
Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered
The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two …
On Rawlsian Contractualism and the Private Law
Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different …
Issue 6
Circuit Personalities
The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety …
Criminal Law Exceptionalism
For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of …
A Third-Party Beneficiary Theory of Corporate Liability for Labor Violations in International Supply Chains
Large multinational corporations (“MNCs”) profit off their suppliers’ maintenance of sweatshop conditions in developing countries. Although some companies have responded to reputational pressure by taking nominal steps to improve working conditions, …
Issue 5
Debunking the Nondelegation Doctrine for State Regulation of Federal Elections
One objection to the conduct of the 2020 election concerned the key role played by state executives in setting election rules. Governors and elections officials intervened to change a host of regulations, from ballot deadlines to polling times, …
Stakeholderism, Corporate Purpose, and Credible Commitment
One of the most significant recent phenomena in corporate governance is the embrace, by some of the most influential actors in the corporate community, of the view that corporations should be focused on furthering the interests of all corporate …
The Common Law of Interpretation
Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian …
On Lenity: What Justice Gorsuch Didn’t Say
Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War …
Issue 4
Federal Courts, Jurisprudence Theory
Judicial Minimalism in the Lower Courts
Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should …
Bankruptcy, Finance & Banking
A Modern Poor Debtor’s Oath
Bankruptcy offers a fresh start that frees individuals from crushing debt burdens. Many insolvent Americans are, however, simply too poor to afford bankruptcy. Filing for even the simplest type of bankruptcy costs around $1,800, with most of this …
Corporate Law, Insurance
Changing Guards: Improving Corporate Governance with D&O Insurer Rotations
Almost all public companies buy insurance for their directors and officers. D&O insurers should be active gatekeepers for the corporation, since they lose money if executives misbehave, but all available evidence suggests the opposite: insurers …
Constitutional Law, Fourth Amendment
Permission to Destroy: How a Historical Understanding of Property Rights can Reign in Consent Searches
Consent searches are by far the most common tool to circumvent the Fourth Amendment’s warrant requirement. Though police officers have the property owner’s permission, the searches they conduct are not always harmless. Without probable cause or …
Issue 3
Constitutional Law, Corporate Law, Fourteenth Amendment, Legal History
Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection
This Article highlights the crucial role corporations played in crafting an expansive interpretation of the Fourteenth Amendment. Exposing the role of race in the history of the constitutional law of corporate personhood for the first time, this …
Contracts, Corporate Law
Collaborative Intent
Why do parties—even sophisticated ones—draft contracts that are vague or incomplete? Many others have tackled this question, but this Article argues that there is an overlooked, common, and powerful reason for contractual gaps. Using original …
Criminal Justice, Criminal Law
Pretrial Detention and the Value of Liberty
How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify …
Constitutional Law, Separation of Powers
Vagueness and Nondelegation
The void-for-vagueness doctrine and the nondelegation doctrine share an intuitive connection: when Congress drafts vague statutes, it delegates lawmaking authority to courts and the executive. In three recent cases, the Supreme Court gave expression …
Issue 2
Statutory History
The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from …
Equal Speech Protection
Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on …
The Original Meaning of “Due Process of Law” in the Fifth Amendment
The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated …
Proving Causation in Clinical Research Negligence
Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing …
Issue 1
The Banker Removal Power
The Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. …
The Runaway Presidential Power over Diplomacy
The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot …
Punitive Surveillance
Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as …
RFRA at the Border: Immigration’s Entry Fiction and Religious Free Exercise
RFRA and RLUIPA have greatly enhanced the religious free exercise rights of individuals, but it is not clear that all immigrants in detention in the United States are able to claim these protections. One lower court has applied the entry fiction …
Volume 107 — 2021
Issue 8
Liberalism and Disagreement in American Constitutional Theory
For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and …
Excited Delirium and Police Use of Force
Excited delirium is often described as a psychiatric illness characterized by a sudden onset of extreme agitation, confusion, and aggression that can make people irrationally combative and dangerous. Since its inception in the 1980s, this medical …
The But-For Theory of Anti-Discrimination Law
Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as …
The Lost Judicial Review Function of the Speech and Debate Clause
The prevailing understanding of the Speech or Debate Clause of the United States Constitution is that it was transplanted without significant modification from Article 9 of the English Bill of Rights of 1689. This Note challenges that view by …
Issue 7
Where Nature’s Rights Go Wrong
There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights …
The Chimerical Concept of Original Public Meaning
This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward …
Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions
The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people …
Issue 6
How Litigation Imports Foreign Regulation
Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom’s National Health Services, to the Japanese Fair Trade Commission and the European …
Propertizing Fair Use
In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. …
Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders
A decade on, legislatures are still coming to terms with the reach of Citizens United. In a novel push to cabin the effects of the opinion, legislatures have passed or are seeking to pass regulations that raise the specter of foreign intervention in …
Issue 5
What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life
We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the …
Interpreting Injunctions
Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt. Despite the …
From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia
This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity. In the years after Brown, Virginia …
Issue 4
Velvet Rope Discrimination
Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming …
The Law of Legislative Representation
Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, …
Trade Administration
At the core of public debates about trade policy making in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss …
Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine
Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in …
Issue 3
Interpretive Entrepreneurs
Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official …
Invoking Criminal Equity’s Roots
Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and …
Taxing Nudges
Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often …
Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law
Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat …
Issue 2
The Corrective Justice Theory of Punishment
The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the …
Nondelegation and Criminal Law
Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these …
Vagueness Attacks on Searches and Seizures
The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect …
The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government
In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place. One of his parishioners, James Keating, had reported a theft of jewelry to the police. Later, Keating withdrew his …
Issue 1
Conflict Avoidance in Constitutional Law
Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as …
Settled Law
“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial …
The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95
What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential …
Can the Reasonable Person Be Religious? Accommodation and the Common Law
Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general …
Volume 106 — 2020
Issue 8
Damages for Privileged Harm
The law often permits us to impose substantial harm on others without incurring liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. Calculating these damages requires …
The Rise and Fall of Transcendent Constitutionalism in the Civil War Era
In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress …
The Unlimited Jurisdiction of the Federal Courts
Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ …
The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act
From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society..
Issue 7
Secrecy Surrogates
Debates about how best to check executive branch abuses of secrecy focus on three sets of actors that have access to classified information and that traditionally have served—in one way or another—as our surrogates: congressional committees, federal …
Against Fiduciary Constitutionalism
A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the …
College Athletics, Coercion, and the Establishment Clause: The Case of Clemson Football
Once a person turns eighteen and goes to college, do they immediately become less susceptible to the influences of those in power and their peers? The Supreme Court tells us that they do. While consistently willing to find that prayers at middle …
Issue 6
First Amendment
Weaponizing the First Amendment: An Equality Reading
This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is …
Second Amendment
Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process
Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of …
Conflicts of Precedent
The law of the circuit doctrine requires three-judge panels in the federal courts of appeals to give stare decisis effect to past decisions of the circuit, which can only be overruled by the circuit sitting en banc or by the U.S. Supreme Court. This …
Issue 5
Local Government, State Law & Federalism
The Structures of Local Courts
Local courts are, by far, the most commonly used courts in our justice system. Cases filed in local courts outnumber those filed in federal court by a factor of over two hundred. Few litigants who receive local-court judgments appeal the matter …
Contracts, International Law
Substance-Targeted Choice-of-Law Clauses
Recent cases highlight two persistent problems in United States litigation: the frequency with which parties seek to validate an otherwise unenforceable provision through a choice-of-law clause, and the disparate results courts have reached in such …
Corporate Law
Defining Appraisal Fair Value
Appraisal is a statutory mechanism that entitles dissenting stockholders of Delaware merger targets to receive a judicially determined valuation of their shares. During a decade when Delaware courts significantly constrained other legal avenues of …
Issue 4
Technology
Measuring Algorithmic Fairness
Algorithmic decision making is both increasingly common and increasingly controversial. Critics worry that algorithmic tools are not transparent, accountable, or fair. Assessing the fairness of these tools has been especially fraught as it requires …
Technology
Manipulating Opportunity
Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When …
Corporate Law
Designing Business Forms to Pursue Social Goals
The long-standing debate about the purpose and role of business firms has recently regained momentum. Business firms face growing pressure to pursue social goals and benefit corporation statutes proliferate across many U.S. states. This trend is …
Federal Courts, International Law
Transatlantic Perspectives on the Political Question Doctrine
On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) unanimously invalidated U.K. Prime Minister Boris Johnson’s attempt to suspend (or “prorogue”) Parliament. The UKSC’s decision, R (Miller) v. Prime Minister (Miller/Cherry), was a …
Issue 3
Constitutionalism in Unexpected Places
Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and …
Technology
A Right to a Human Decision
Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision makers. From welfare and employment to bail and other risk assessments, state actors increasingly lean on machine-learning tools …
Corporate Law
Myopic Consumer Law
People make mistakes with debt, partly because the chance to buy now and pay later tempts them to do things that are not in their long-term interest. Lenders sell credit products that exploit this vulnerability. In this Article, I argue that …
Legal History
Colonial Virginia: Incubator of Judicial Review
What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics …
Issue 2
Civil Procedure
Intervention
Ever since the late 1960s, many lower federal courts have interpreted the Federal Rules of Civil Procedure to give outsiders broad rights to become parties to pending lawsuits. Intervention of this sort affects the dynamics of a lot of cases, …
Constitutional Powers, International Law
Congressional Administration of Foreign Affairs
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a …
Antitrust, Corporate Law, Finance & Banking
The New Gatekeepers: Private Firms as Public Enforcers
The world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ …
Criminal Justice
Redefining the Relationship Between Stone and AEDPA
This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have …
Issue 1
Constitutional Powers, Jurisprudence Theory
Historical Gloss, Madisonian Liquidation, and the Originalism Debate
The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework …
Constitutional Law, International Law
Rejoining Treaties
Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal …
Criminal Law, State Law & Federalism
Statutory Federalism and Criminal Law
Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely …
Civil Procedure, Federal Courts
Colorado River Abstention: A Practical Reassessment
When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent …
Volume 105 — 2019
Issue 8
What is Just Compensation?
Federalism, Metropolitanism, and the Problem of States
Speech Across Borders
Unshackling the Due Process Rights of Asylum-Seekers
Issue 7
Appointments Without Law
Genetic Privacy After Carpenter
A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding
Issue 6
Insincere Evidence
Standing to Challenge the Lost Cause
Garbage Pulls Under the Physical Trespass Test
Issue 5
The Myth of Common Law Crimes
Faux Contracts
Issue 4
“Standing” and Remedial Rights in Administrative Law
Combating Silence in the Profession
Confining Cases to Their Facts
Pardoning Contempt—Reconsidering the Criminal-Civil Divide
Issue 3
Why Didn’t the Common Law Follow the Flag?
The “Murder Scene Exception” – Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases
Corporate Disestablishment
Super PACs, Personal Data, and Campaign Finance Loopholes
Issue 2
Foreword
On Charlottesville
Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy
Procedural Justice, Legal Estrangement, and the Black People’s Grand Jury
Education as Property
Constitutional Interpretation Without Judges: Police Violence, Excessive Force, and Remaking the Fourth Amendment
White Privilege and White Disadvantage
Issue 1
The Government-Could-Not-Work Doctrine
Abstention at the Border
Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era
Congressional Control of Agency Expertise
Volume 104 — 2018
Issue 8
Administrative Rationality Review
Unconstitutionally Illegitimate Discrimination
Predicting Enemies
A “Corporate Democracy”? Freedom of Speech and the SEC
Issue 7
Powers, But How Much Power? Game Theory and the Nondelegation Principle
Socioeconomic Status Discrimination
Issue 6
The Securities Law Implications of Financial Illiteracy
The Death Penalty as Incapacitation
The Missing Theory of Representation in Citizens United
Issue 5
A Tribute to Gordon Hylton
Subsidizing Segregation
The Writ-Of-Erasure Fallacy
Akin to Madmen: A Queer Critique of the Gay Rights Cases
Issue 4
The Presumption of Civil Innocence
Justice Souter’s Common Law
Federal Decentralization
Congress as Elephant
Issue 3
The Damagings Clauses
Legal Innocence and Federal Habeas
Issue 2
Textualism and Statutory Precedents
Deregulation and the Subprime Crisis
“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches
Issue 1
Should the Rules Committees Have an Amicus Role?
Fee-Shifting and Shareholder Litigation
“Don’t Elect Me”: Sheriffs and the Need for Reform in County Law Enforcement
Volume 103 — 2017
Issue 8
Enforcing the FCPA: International Resonance and Domestic Strategy
Restoring the Lost Anti-Injunction Act
Are Speech Rights for Speakers?
Moral Commitments in Cost-Benefit Analysis
Waiving the Ministerial Exception
Issue 7
Functionality Screens
Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments
Legislative Underwrites
Issue 6
Exorcising the Clergy Privilege
Ambition and Fruition in Federal Criminal Law: A Case Study
Copyright Survives: Rethinking the Copyright-Contract Conflict
Constitutional Avoidance: The Single Subject Rule as an Interpretive Principle
Issue 5
Situational Severability
The Law Presidents Make
The Constitutional Right to Collateral Post-Conviction Review
Issue 4
The Untenable Case for Perpetual Dual-Class Stock
Entrenchment, Incrementalism, and Constitutional Collapse
Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause
Issue 3
Information Gaps and Shadow Banking
Religion Is Special Enough
Issue 2
A Tactical Fourth Amendment
The Economic Foundation of the Dormant Commerce Clause
Government Admissions and Federal Rule of Evidence 801(D)(2)
Issue 1
Sovereign Immunity and the Constitutional Text
Crackdowns
Volume 102 — 2016
Issue 8
Unbundling the “Tort” of Copyright Infringement
The Amicus Machine
Corporations, Unions, and the Illusion of Symmetry
Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform
In Defense of the Secular Purpose Status Quo
Issue 7
The Rationality of Rational Basis Review
The Positive Right to Marry
Legal Design for the “Good Man”
Issue 6
The New Antitrust Federalism
What’s Wrong With Sentencing Equality?
The Common Law of Contract and the Default Rule Project
Issue 5
A Tribute to David Martin
Property’s Ceiling: State Courts and the Expansion of Takings Clause Property
A Theory of Copyright Authorship
Competitive Public Contracts
Mature Minors, Medical Choice, and the Constitutional Right to Martyrdom
Issue 4
Two Concepts of Discrimination
Executive Federalism Comes to America
The Failure of Liability in Modern Markets
Issue 3
Confronting and Adapting: Intelligence Agencies and International Law
“Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution
Judicial Capacity and Executive Power
“Spiritual But Not Religious”: Rethinking the Legal Definition of Religion
Issue 2
A Tribute to Antonin Scalia
Foreign Sovereigns as Friends of the Court
Constitutional Commitment to International Law Compliance?
Insider Trading in Commodities Markets
When Thirteen is (Still) Greater Than Fourteen: The Continued Expansive Scope of Congressional Authority Under the Thirteenth Amendment in a Post-City of Boerne v. Flores World
Waiver by Removal? An Analysis of State Sovereign Immunity
Issue 1
Statutory Domain and the Commercial Law of Intellectual Property
The Divorce Bargain: The Fathers’ Rights Movement and Family Inequalities
A Declaratory Theory of State Accountability
Benefits of Error in Criminal Justice
Volume 101 — 2015
Issue 8
Changing the Vocabulary of the Vagueness Doctrine
Measuring the Impact of Plausibility Pleading
Insincere Rules
Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions
Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena
Issue 7
The Corporate Criminal as Scapegoat
Constructing Issue Classes
Commercial Speech, Commercial Use, and the Intellectual Property Quagmire
Issue 6
Patent Trolls and Preemption
Corporate Inversions and the Unbundling Of Regulatory Competition
Taming Title Loans
Issue 5
Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship
Taking Care of Federal Law
Reading Statutes in the Common Law Tradition
Aligning Campaign Finance Law
Issue 4
Jurisprudence and (Its) History
Jurisprudence, the Sociable Science
Time-Mindedness and Jurisprudence: A Commentary on Postema’s “Jurisprudence, the Sociable Science”
Jurisprudence, History, and the Institutional Quality of Law
Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey’s “Jurisprudence, History, and the Institutional Quality of Law”
The Path-Dependence of Legal Positivism
What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer’s “The Path-Dependence of Legal Positivism”
Toward Classical Legal Positivism
Redrawing the Dividing Lines Between Natural Law and Positivism(s): A Commentary on Priel’s “Toward Classical Legal Positivism”
Sovereignty and Subversion
A Commentary on Ristroph’s “Sovereignty and Subversion”
The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers
The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, …
Unintended Implications: A Commentary on Mikhail’s “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers”
Intellectual History as Constitutional Theory
Intellectual History and Constitutional Decision Making: A Commentary on Solum’s “Intellectual History as Constitutional Theory”
Marx, Law, Ideology, Legal Positivism
Issue 3
Contract’s Role in Relational Contract
The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute
Reasonable Expectations of Anonymity
Issue 2
The Changing Face of the Supreme Court
The Case Against Federalizing Trade Secrecy
Contaminated Confessions Revisited
The Significance of Parental Domicile Under the Citizenship Clause
Issue 1
The Legitimacy Of (Some) Federal Common Law
Patent Experimentalism
The Corporate Settlement Mill
Volume 100 — 2014
Issue 8
Lambert Revisited
Unplanned Coauthorship
The Trouble with Amicus Facts
Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor
Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, …