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 …
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 …
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 …
Catalyzing Judicial Federalism
In response to a U.S. Supreme Court that is retrenching many important civil rights, some advocates are turning to state courts and constitutions as alternative means of protection. The Court’s regression follows a recent ideological change, a …
Chronic Nuisance Ordinances, Impossible Choices, and State Constitutions
When Lakisha Briggs’s partner attacked her in April 2012, her daughter called the police. Their response ensured that neither Ms. Briggs nor her daughter would ever take that risk again. Once officers arrived at Ms. Briggs’s home, they told her …
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 …
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 …
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 …
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 …
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 …
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 …
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, …
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 …
The Animal Crushing Offense Loophole
The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, …
Deep in the Shadows?: The Facts About the Emergency Docket
The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative supermajority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly …
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 …
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 …
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 …
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 …
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 …