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 …
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, …
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, …
By Daniel Schwarcz, Brenda J. Cude, Kyle D. Logue & German Marquez Alcala
In earlier work, I discussed historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts. The framework that I described revolved around …
Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity. But states vary widely in whether they take federal law up on that offer of exclusion. In one state, you may never …
Collaborative courts, such as drug courts, reentry courts, and veterans treatment courts, have long been hailed by reformers as therapeutic alternatives to the adversarialism of traditional criminal justice. Proponents argue that such courts embody …
For decades, scholars and activists have decried the punitive turn in U.S. criminal policy and the rise of mass incarceration. Unsurprisingly, then, much ink has been spilled exploring alternative frameworks for responding to risk creation and …
Nearly a decade ago, the #MeToo movement surfaced deep failings in our criminal and civil legal systems. But the work of retrofitting these systems to meet the needs of victims remains largely incomplete. To that end, survivors’ conceptions of …
In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts. The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards. Alice derides “[t]he idea of having the sentence …
In Morgan v. Sundance, Inc., the Supreme Court addressed a question that has arisen frequently in recent years: If a party initially pursues litigation instead of immediately invoking the right to arbitrate pursuant to a contractual agreement, at …
The Supreme Court’s shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow …
In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed …
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court deconstitutionalized the right to choose abortion, announcing that it was leaving the power to regulate abortion “to the people and their elected representatives.” In the wake of …
Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success have come uncertainty and dissatisfaction. Formalists and their critics observe that …
Two of society’s most important institutions face a crisis of legitimacy: regulatory agencies and corporations. Regulators are on the front lines guarding against climate change, technological upheaval, economic disasters, and other large-scale …
This Note takes a fresh look at the Principal Purpose Test (“PPT”), which has been added to over 2,300 bilateral tax treaties since 2015 in an effort to fight tax avoidance. Under the PPT, countries may deny treaty benefits—such as lower tax rates …
The peremptory challenge—used by parties to remove prospective jurors without the need to provide a reason—has become one of the most controversial features of the modern American jury system. Despite Batson v. Kentucky’s promise to prohibit parties …
The pharmaceutical industry’s billion-dollar practice of inflating drug prices and shielding itself from accountability has brought immense public outcry and inspired a profusion of legal reforms. But the precise dynamics that enable this ongoing …
A civil rights secret hides in plain sight: a federal antidiscrimination statute, 42 U.S.C. § 1981, expresses foundational rules of contract law in the United States. Originating in the Civil Rights Act of 1866 and amended by the Civil Rights Act of …