The Promise and Peril of Direct Democracy After Dobbs
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 …
Faces of Formalism
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 …
A Public Calling for Private Employees
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 …
Crystals and Mud in International Taxation: Why the Principal Purpose Test’s Impact Will Not Meet Expectations
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 …
Striking the Peremptory Strike: Why There Is No Freestanding Constitutional Entitlement to Peremptory Challenges
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 …
Oligopoly Squared: Federalism and the New Legal Landscape Tackling the Dark Web of Drug Pricing
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 …
Section 1981 as Contract Law
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 …
The Practice of Executive Constitutionalism
The executive branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the executive’s constitutional authority, few believe the Constitution is only for the courts. But what …
Identical, Not Fraternal Twins: RLUIPA, RFRA, and Damages
The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Religious Freedom Restoration Act (“RFRA”) are commonly labeled “twin” or “sister” statutes. Both reinstall a strict scrutiny regime for religious accommodations, and …
Rethinking Youth Privacy
Congress and state legislatures are showing renewed interest in youth privacy, proposing myriad new laws to address data extraction, addiction, manipulation, and more. Almost all of their proposals, and youth privacy law in general, follow what we …
Disfavored Supreme Court Precedent in the Lower Federal Courts
There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron U.S.A. Inc. v. Natural Resources …
Void Judgments and “Reasonable Time”
Rule 60(b) of the Federal Rules of Civil Procedure authorizes federal district courts, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final judgment, order, or proceeding for” certain specified reasons. Rule …
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”) …