Blog
Publication Type: Article
April 11th, 2024 | Issue 5 Volume 102
I. Cross-Examination in Culture and Courtrooms A. The Mythology of Cross-Examination The expansive catalogue of trial movies features many marquee scenes of cross-examination—moments when a defense lawyer exposes unjust prosecution tactics or conclusively establishes their client’s innocence. Faced down by unlikely heroes such as Vincent LaGuardia Gambini (in My Cousin Vinny) or Elle Woods (in […]
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April 11th, 2024 | Issue 5 Volume 102
Introduction Arsonists set ablaze a home shared by three sleeping Senegalese immigrant families one early morning in a Denver neighborhood.[1] Five members of a family burned to death, including parents Djibril (“Djibby”) and Adja Diol, their two-year-old daughter, Djibby’s sister Hassan, and Hassan’s infant daughter.[2] The unsolved murders haunted the region’s Senegalese immigrant community with […]
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April 10th, 2024 | Issue 5 Volume 102
Introduction It is commonly said that the state holds a monopoly on criminal punishment.[1] In operation, however, that monopoly power is wielded almost entirely by the executive while the legislative and judicial branches rarely intervene. Legislative enactments provide nearly unlimited grounds for arrest and prosecution and thus confer enormous authority on law enforcement while exerting […]
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April 10th, 2024 | Issue 4 Online Edition Volume 102
Introduction Textualism seems to have a tense relationship with statutory precedent. Jurists and scholars, including prominent textualists, have repeatedly insisted that stare decisis is largely incompatible with textualism.[1] As Justice Scalia and Bryan Garner put it in their treatise on statutory interpretation, “[s]tare decisis . . . is not a part of textualism. It is an exception […]
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April 10th, 2024 | Issue 4 Online Edition Volume 102
A revolution is never truly over until the losers give up. In the mid-1990s, the Rehnquist Court began an important sequence of decisions expanding and strengthening the sovereign immunity that states enjoy when sued by private litigants. These decisions, beginning with Seminole Tribe v. Florida,[1] limited Congress’s ability to subject states to damages suits for […]
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April 10th, 2024 | Issue 4 Online Edition Volume 102
Introduction The Supreme Court’s decision in Whole Woman’s Health v. Jackson[1] (WWH) narrows the presumed right of prospective defendants to mount pre-enforcement challenges to laws, like the Texas Heartbeat Act, S.B. 8, that privatize enforcement of public laws.[2] Building on a nineteenth-century model of private enforcement, S.B. 8 authorizes private parties to collect a $10,000 […]
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April 06th, 2024 | Online Edition
Introduction Attorney General Merrick Garland recently clarified his view of federal prosecutors’ role in the American criminal justice system: “[The Department of Justice’s] job is not to take orders from the President, from Congress, or from anyone else, about who or what to criminally investigate. As the President himself has said and I reaffirm […]
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February 26th, 2024 | Issue 3 Volume 102
Introduction Imagine that the electronics firm Persimmon, Inc. begins selling a new fitness tracker that it calls ActivTrak. The firm is trying to enter a crowded market for consumer electronics, and it has some new technology that it hopes will set its ActivTrak device apart. Persimmon spends substantial sums of money advertising its device on […]
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February 26th, 2024 | Issue 3 Volume 102
Introduction The nondelegation doctrine is alive and well at the local level, but no one quite knows why. Reported decisions abound with judicial declarations that local legislatures may not delegate “discretionary” or “policymaking” authority to local executives. “It is axiomatic,” intoned the Missouri Supreme Court, striking down the St. Louis city council’s delegation of fee-setting […]
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January 08th, 2024 | Issue 2 Volume 102
The Justices of the Supreme Court are increasingly originalist. Two decisions from the Court’s 2021 Term exemplify their professed commitments. New York State Rifle & Pistol Ass’n v. Bruen[1] defined the modern content of the right to bear arms by direct reference to the Second Amendment’s perceived historical meaning.[2] Similarly, Kennedy v. Bremerton School District[3] […]
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January 08th, 2024 | Issue 2 Volume 102
Introduction We were never the people. The Constitution’s drafters could not have included us when they began “We the people of the United States . . . .”[1] Women,[2] Native Americans, and African Americans were counted as “other . . . Persons” when the document set forth how political representation would be apportioned by population.[3] But no woman, Black American, or […]
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January 08th, 2024 | Issue 1 Volume 102
Introduction Growing societal attention to issues ranging from climate change to Black Lives Matter has led corporate governance in a new direction as shareholders increasingly seek to have the companies in which they invest address social problems and operate sustainably.[1] Even traditional business decisions—plant closings, employment policies, product choices—now must include consideration of broader societal […]
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January 08th, 2024 | Issue 1 Volume 102
Introduction Gun rights proponents and judges have long complained that the Second Amendment has been treated like a “second-class” constitutional right.[1] One of the complaints of the second-class chorus was that the Court had not recognized a right to carry firearms in public.[2] After all, if individuals and groups have a right to engage in […]
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November 03rd, 2023 | Online Edition
Introduction Every August and December, thousands of practicing lawyers ready themselves for the fall or spring (or in the quarter system, winter) classes they will be teaching at any one of the 197 ABA-approved law schools around the country.[1] Whether in their first or thirtieth year of teaching, and regardless of whether they do so […]
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October 04th, 2023 | Online Edition
Introduction Currently, under US copyright law, copyright protection is granted to original works of authorship fixed in a tangible medium of expression. However, it is not clear whether AI-generated works qualify for copyright protection. One argument in favor of granting copyright protection to AI-generated works is that such works involve creative input from the AI […]
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October 04th, 2023 | Online Edition
Introduction In State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation, we argued that the validity of state laws regulating internet activity should turn in part on the feasibility of geolocation—the extent to which online services can reliably determine the state in which a user is located so that they can comply with […]
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July 09th, 2023 | Issue 7 Volume 101
Introduction Multidistrict litigation (MDL) is ascendant. As its creators predicted in the 1960s, MDL has become the centerpiece of the federal civil litigation system, handling pretrial proceedings in mass disputes of nearly all kinds. Whenever a national controversy finds its way into the federal courts, MDL stands ready to ensure that the complex and massive […]
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July 09th, 2023 | Issue 7 Volume 101
In the magisterial work The Liability Century, Kenneth Abraham described tort law and liability insurance as a binary star: two separate institutions that revolve around each other, forming a common gravitational field.[1] Abraham’s evocative image captured an emerging consensus among tort and insurance law scholars at the turn of the twenty-first century. Insurance had not […]
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July 09th, 2023 | Issue 7 Volume 101
Introduction One of the most frequent complaints about federal multidistrict litigation (MDL) today—particularly in the mass tort context—is that it attracts large numbers of very weak or frivolous claims. This is commonly referred to as the “Field of Dreams” problem: “If you build it, they will come.”[1] Once the Judicial Panel on Multidistrict Litigation (JPML) […]
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July 09th, 2023 | Issue 7 Volume 101
Introduction MDLs currently account for slightly more than one out of every two civil cases pending in the nation’s federal courts—a fact that is making waves and, not surprisingly, catalyzing calls to tame these “behemoth” actions.[1] In this debate, many MDL features are criticized, including their duration (too long), personnel (too reliant on repeat play), […]
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July 09th, 2023 | Issue 7 Volume 101
Introduction There is, or should be, universal agreement that judges must manage Multi-District Litigations (MDLs) lawfully. For example, they must abide by the Federal Rules of Civil Procedure (FRCP), which “govern the procedure in all civil actions and proceedings in the United States district courts.”[1] Yet, academic commentators have argued that widely used MDL procedures […]
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July 09th, 2023 | Issue 7 Volume 101
Introduction In October 2022, the Judicial Panel on Multidistrict Litigation (JPML) consolidated all the federal cases against Exactech—an orthopedics company that had just recalled hundreds of thousands of faulty knee, hip, and ankle replacements.[1] At first, the Exactech litigation looked like many other sprawling cases pending on the federal docket. The plaintiffs’ lawyers were old […]
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July 09th, 2023 | Issue 7 Volume 101
Introduction The first time I wrote about mass torts and aggregate litigation was as a scribe. The 1994 law that authorized use of the federal bankruptcy system to restructure asbestos liabilities also created a National Bankruptcy Review Commission.[1] Congress gave this Commission two years and a modest budget to study the American bankruptcy system and […]
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July 09th, 2023 | Issue 7 Volume 101
Is corporate reorganization under Chapter 11 of the Bankruptcy Code a “special remedial scheme”? The Supreme Court has said so,[1] but has not told us what that means. It matters because the phrase, and whatever it means, lurks in the background of the most contentious issue in bankruptcy today: the use of nonconsensual nondebtor releases […]
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May 17th, 2023 | Issue 6 Volume 101
Introduction On September 1, 2021, a Texas law came into effect banning abortions six weeks after conception absent a medical emergency.[1] Since a pregnancy is commonly identified only after six weeks,[2] and since appointments for treatment in Texas can take days or even several weeks to obtain, the prohibition reached most abortions. Yet the statute, […]
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May 17th, 2023 | Issue 6 Volume 101
Introduction Prosecutors investigating evidence stored on a foreign server and protected by a foreign privacy law can use a treaty—and in some cases a U.S. court order—to pierce the privacy law and seize the evidence anyway.[1] Prosecutors seeking testimony from a witness who has asserted their Fifth Amendment privilege against self-incrimination can circumvent the privilege […]
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April 20th, 2023 | Issue 5 Volume 101
Introduction Discovery disputes are endemic to pretrial practice. But if you scan law-school casebooks or the decisions of the Supreme Court, you won’t find many appellate orders addressing discovery disputes.[1] The few exceptions are cases like Seattle Times Co. v. Rhinehart,[2] which is intertwined with constitutional considerations, or Hickman v. Taylor,[3] which involves an important […]
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April 20th, 2023 | Issue 5 Volume 101
Introduction Many state laws apply to internet communications. Indeed, we take many such laws for granted. If you publish an online magazine or a blog that comments on people from all fifty states, you might be subjected to the libel laws of each state.[1] If you sell online images of famous people (or, to be […]
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April 20th, 2023 | Issue 5 Volume 101
Introduction The Supreme Court has reversed many cases. But never has the Court reversed a right that the Court itself had justified as important to a group’s equal participation “in the economic and social life of the Nation.”[1] And no case retracting a marginalized group’s equal-participation rights earns respect in the constitutional canon.[2] This Article […]
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April 18th, 2023 | Issue 4 Volume 101
Introduction When the need for a COVID-19 vaccine became urgent, the federal government entrusted to private firms the tasks of developing and producing one.[1] The result was a set of successful vaccines, each identified by company names: Pfizer, Moderna, and Johnson & Johnson. The vaccines, however, were the product of multi-firm collaborations. As examples: Johnson […]
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April 18th, 2023 | Issue 4 Volume 101
Introduction The debate about how to regulate dominant technology platforms and, more generally, dangers in the increasingly important technology sector, misses an essential dimension. It is the same oversight that financial regulators committed prior to the Global Financial Crisis: under-appreciating systemic risk.[1] Fortunately, the responses those regulators eventually developed provide a template to avoid a […]
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March 30th, 2023 | Online Edition
Last year, Texas passed its Heartbeat Act, also known as S.B. 8, which uses a unique structure of private enforcement to circumvent the constitutional limitations of Roe and Casey to restrict abortion. That Act created a bounty regime, with no involvement of government actors, through which any individual could sue defendants alleged to have aided […]
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February 24th, 2023 | Issue 3 Volume 101
I. Introduction In May 2021, the American Law Institute approved the Restatement (Third) of Torts: Intentional Torts to Persons, a project on which one of us served as Associate Reporter and the other as Advisor. For the first time, the Restatement addresses liability for sexual torts in a stand-alone section—specifically, a section on the doctrine […]
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February 24th, 2023 | Issue 3 Volume 101
I. A Call to Action On November 6, 2020, the U.S. Army released findings contained within the Fort Hood Independent Review Committee Report (FHIRC Report).[1] The FHIRC Report was a culmination of a Department of Defense (DoD) directed investigation into concerns that Army leaders at Fort Hood, Texas were mishandling sexual misconduct cases.[2] In 2020, […]
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February 23rd, 2023 | Issue 3 Volume 101
Introduction In 2003, prosecutors offered Weldon Angelos a fifteen-year plea deal to resolve drug and gun charges. Angelos turned down the offer, was convicted at trial, and was sentenced to fifty-five years in prison.[1] In 2013, prosecutors offered Joseph Tigano a ten-year deal if he pleaded guilty to growing 1,400 marijuana plants. Tigano refused. After […]
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January 09th, 2023 | Issue 2 Volume 101
I. Introduction Imagine that you are an investment advisor trying to comply with the vast and confusing morass of federal and state securities laws. Despite your best efforts to follow the law, the Securities and Exchange Commission’s (SEC or Commission) enforcement division investigates your actions after receiving a complaint from a disgruntled investor. After the […]
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January 09th, 2023 | Issue 2 Volume 101
Introduction Is education speech? If so, what does this mean for the speech rights of parents in educating their minor children? The question has long simmered below the surface of public school debates from the time of Horace Mann to the present. There has been a tendency, however, to frame the debate in terms of […]
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January 09th, 2023 | Issue 2 Volume 101
Introduction March 21, 2022, represented a watershed moment in the history of the Securities and Exchange Commission (the SEC). On that day, for the first time in its history, the SEC proposed specific mandated disclosure rules related to climate change.[1] Among other things, the proposed rules would require companies to include climate-related disclosures in their […]
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December 18th, 2022 | Online Edition
Introduction On June 24, 2022, the United States Supreme Court decided Dobbs v. Jackson Women’s Health Organization,[1] explicitly overturning both Roe v. Wade[2] and Planned Parenthood of Southeastern Pennsylvania v. Casey[3] and signaling, at least for now, the end of a federal right to abortion in the United States. The Court held that the unenumerated […]
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November 30th, 2022 | Issue 1 Volume 101
Introduction What is a market? Karl Polanyi described contemporary market societies as centered around a specific market form: the self-regulating market, a locus of exchange governed by price equilibrium.[1] As such, markets have been imagined throughout modern history as autonomous spheres of life whose internal justifying logic is separable from politics and the laws of […]
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November 30th, 2022 | Issue 1 Volume 101
Introduction The Supreme Court maintains self-regulatory rules that have fluctuated over time, and each change affects the nature of the Court itself. Many of these rules are well-known: the rule of four, stare decisis, secrecy of deliberations, and the practice of dissent.[1] Some are newly uncovered, such as the rule of summary reversals, which permits […]
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November 30th, 2022 | Issue 1 Volume 101
Introduction The concern that the federal bureaucracy is an unaccountable fourth branch of government has given rise to renewed attacks on the constitutionality of the administrative state. Five sitting Justices, anxious about the federal bureaucracy’s place in the United States’ constitutional framework, have expressed interest in (a) reducing agencies’ authority to promulgate rules and (b) limiting Congress’s […]
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November 30th, 2022 | Issue 1 Volume 101
Introduction The rapid development of COVID-19 vaccines and boosters in the midst of a global pandemic has been nothing short of a medical marvel. The vaccines created by Pfizer, Moderna, Johnson & Johnson, and other private corporations have slowed the spread of the coronavirus, reduced hospitalization rates, and prevented deaths.[1] At the time of this […]
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November 29th, 2022 | Online Edition
[T]he majority’s ruling today invites a host of questions about interstate conflicts[, including:] . . . Can a State bar women from traveling to another State to obtain an abortion? . . . The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions.[1] [A]s I […]
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October 10th, 2022 | Online Edition
Introduction Professor Teressa Ravenell’s provocative new article, Unidentified Police Officials,[1] offers a carefully conceived analysis of the challenges facing civil litigants in some police-misconduct cases, particularly those involving so-called John Doe officers. In these John Doe cases, the identity of an officer who caused a constitutional violation is unknown.[2] As she illustrates, these John Doe […]
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July 22nd, 2022 | Issue 7 Volume 100
Introduction On November 22, 2014, a 911 caller in Cleveland, Ohio, reported that a person, who appeared to be a juvenile, was pointing a “probably fake” pistol “at everybody.”[1] The dispatcher failed to convey that the weapon was “probably fake,” and two Cleveland police officers, Timothy Loehmann and Frank Garmback, showed up to the scene […]
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July 22nd, 2022 | Issue 7 Volume 100
Introduction Humanity has been called to action. Success requires not only achieving a decarbonized environment, but also the maintenance of sustainable and biodiverse ecosystems. A brief review shows the challenge ahead. In the context of the recent global pandemic, the International Federation of Red Cross and Red Crescent Societies stated concisely: “Climate change is an […]
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July 22nd, 2022 | Issue 7 Volume 100
Introduction In the United States, no evaluation of choice of law and its foundations is complete without a recitation of the field’s origin story. As the oft-told history goes, for centuries formalistic territorial rules defined private international law; but in the mid-twentieth century, drastic change overtook America. Spurred by the legal realist movement, scholars debunked […]
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July 22nd, 2022 | Issue 7 Online Edition Volume 100
Introduction Within days of birth, nearly all infants born in America are compelled to give their DNA to the government.[1] Hospital staff warm, sterilize, and prick a newborn infant’s heel, collecting a blood sample on a newborn screening card.[2] These newborn blood spots are taken for good reason. Every state operates a public health program […]
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July 22nd, 2022 | Issue 7 Volume 100
Introduction Are people born in the United States Territories covered by the Fourteenth Amendment’s guarantee of birthright citizenship? More than 120 years after the United States expanded its territorial sovereignty in the wake of the Spanish–American War, the Supreme Court still has not provided a definitive answer to that question. But the issue is not […]
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June 07th, 2022 | Issue 6 Volume 100
Introduction Soerono Haryanto—a wealthy guest at a Marriott hotel—pointed a gun at Mohammed Saeed’s head, demanding that Saeed kneel and kiss his feet.[1] Saeed—one of the hotel’s employees—obliged.[2] Haryanto responded by threatening to kill Saeed while mocking him as a mere “servant.”[3] Not satisfied with threats, Haryanto held Saeed hostage, demanding one million dollars from […]
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June 07th, 2022 | Issue 6 Volume 100
Purdue Pharma, the bankrupt drug manufacturer at the center of the opioid crisis, settled its civil and criminal liability for opioid harms with the Department of Justice in a deal that contained a “poison pill” that prevented creditors from objecting to any subsequent plan of reorganization for Purdue: if creditors exercised their rights and pushed […]
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May 30th, 2022 | Issue 6 Volume 100
This study uses linguistic analysis and machine-learning techniques to predict summary judgment outcomes from the text of the briefs filed by parties in a matter. We test the predictive power of textual characteristics, stylistic features, and citation usage, and we find that citations to precedent—their frequency, their patterns, and their popularity in other briefs—are the […]
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April 28th, 2022 | Issue 5 Volume 100
Introduction Society routinely overlooks the importance of ordinary workers. Their contributions often go unappreciated. In one famous example, most of the Tiffany lamps and stained-glass artworks credited to Louis Tiffany were actually designed and crafted by Clara Driscoll and her team of over thirty women, who were denied recognition for their achievements for a century.[1] In art […]
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April 28th, 2022 | Issue 5 Volume 100
United States police officers arrest more than ten million people each year. All of these arrests involve some level of force, and many of them involve multiple officers. Victims of excessive force may bring a § 1983 civil rights claim against all of the officers who were present, but too often plaintiffs with meritorious cases lose […]
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April 28th, 2022 | Issue 5 Volume 100
Through a study of the situation in Palestine and Israel, this Essay argues that collective self-determination can, in some circumstances, be realized through voting in the political system of an occupying power. More specifically, we contend that (1) a power exercising “indefinite occupation” has a duty to grant voting rights in its own domestic political […]
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March 11th, 2022 | Issue 4 Volume 100
Introduction At 8:07 a.m. on July 14, 2020, Daniel Lewis Lee expired after receiving two intravenous doses of pentobarbital and some saline.[1] About six hours earlier, the Supreme Court had issued the orders necessary for the Bureau of Prisons (BOP) to carry out the first federal execution in seventeen years.[2] That morning now marks the […]
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March 11th, 2022 | Issue 4 Volume 100
Access to credit can provide a path out of poverty. Improvidently granted, however, credit also can lead to financial ruin for the borrower. Unfortunately, the various regulatory approaches to consumer lending do not effectively distinguish between these two effects of the lending process. This Article develops a framework, based on the household balance sheet, that […]
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February 14th, 2022 | Issue 3 Volume 100
The Seventh Amendment requires that the civil jury trial right be “preserved” in “Suits at common law.” Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in federal court by reference […]
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February 14th, 2022 | Issue 3 Volume 100
Class actions are supposed to allow plaintiffs to recover for their high-merit, low-dollar claims. But current law leaves many such plaintiffs out in the cold. To be certified, classes seeking damages must show that, at trial, “common” questions (those for which a single answer will help resolve all class members’ claims) will predominate over “individual” […]
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December 22nd, 2021 | Issue 2 Volume 100
Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals. It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation […]
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December 22nd, 2021 | Issue 2 Volume 100
For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate punishment chills beneficial corporate activity or, in the alternative, lets corporate criminals off too easily. A crucial and yet understudied aspect of this debate is empirical evidence. Unlike most other types of crime, the government does not measure […]
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December 21st, 2021 | Issue 2 Volume 100
In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern gig economy, many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two categories […]
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November 30th, 2021 | Issue 1 Volume 100
Introduction In its landmark decision, Google LLC v. Oracle America, Inc.,[1] the U.S. Supreme Court declined to address what had long been Google’s main argument against Oracle’s decade-old lawsuit charging it with copyright infringement for reusing parts of the Java Application Programming Interface (API) in its Android smartphone software.[2] The Court “assume[d], but purely for […]
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November 29th, 2021 | Issue 1 Volume 100
Can a President be arrested, indicted, prosecuted, and punished? Although some believe that these possibilities are unconstitutional, even absurd, I demur. For a host of reasons, the presidency lacks immunities from criminal process and punishment. First, some constitutions from the Founding Era included express executive immunities, not relying upon shadowy inferences. This practice sheds light […]
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November 29th, 2021 | Issue 1 Volume 100
Federal disclosure requirements in the campaign finance context contain loopholes that enable nonprofit organizations to conceal major donors influencing American elections. This funding from unnamed sources has been termed “dark money.” Though a few states have adopted disclosure laws that are tougher to circumvent, 501(c)(4) and 501(c)(3) nonprofits have fought against these laws in court […]
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October 29th, 2021 | Online Edition
I. Introduction Supreme Court Justices publicly switching votes in a case—voting for a case outcome that is the opposite of their opinion’s reasoning—is exceedingly rare. However, over the course of two weeks in June 2021, two cases featured vote switches: Justice Thomas switched his vote in Borden v. United States, and Justices Breyer, Sotomayor, and […]
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July 18th, 2021 | Issue 7
Although it is well understood that activist shareholders challenge management, they can also serve as a shield. This Article describes “validation capital,” which occurs when a bloc holder’s—and generally an activist hedge fund’s—presence protects management from shareholder interference and allows management’s pre-existing strategy to proceed uninterrupted. When a sophisticated bloc holder with a large investment […]
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July 18th, 2021 | Issue 7
There are many lessons to be drawn from the sweep of history. In law, the compelling story repeatedly told is the observable co-movement of law on the one hand, and economic, social, and political changes on the other hand.[1] Aberrations, however, do arise but generally do not persist in the long term. Contemporary corporate law […]
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July 18th, 2021 | Issue 7
Corporate purpose is the hot topic in corporate governance. Critics are calling for corporations to shift their purpose away from shareholder value as a means of addressing climate change, equity and inclusion, and other social values. We argue that this debate has overlooked the critical predicate questions of whether a corporation should have a purpose […]
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July 18th, 2021 | Issue 7
In academic and public commentary, entrepreneurial finance is usually portrayed as a quintessential American success story, an institutional structure whereby expert venture capitalists with strong reputational incentives channel much-needed equity to deserving entrepreneurs, then subject them to intense monitoring to assure they stay on the path to hoped-for success in the form of an initial […]
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July 18th, 2021 | Issue 7
Motivated in part by a desire to change corporate behavior in a more pro-social direction, a number of governance inclusion mandates have been proposed that would require a corporate board to include diverse individuals or representatives of a constituency. This article applies the economic insights of the Coase theorem to determine if and how such […]
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July 18th, 2021 | Issue 7
The corporate purpose debate is experiencing a renaissance. The contours of the modern debate are relatively well developed and typically focus on whether corporations should pursue shareholder value maximization or broader social aims. A related subject that has received much less scholarly attention, however, is the formal legal mechanism by which a corporation expresses its […]
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July 18th, 2021 | Issue 7
Introduction Over the last decade, a fundamental shift has taken place amongst global and U.S. institutional investors and asset managers such as BlackRock, Vanguard, State Street, and Goldman Sachs.[1] Global assets under management with sustainability screens have risen 34% between 2016 and 2018 to $30.7 trillion in five major markets (the EU, United States, Canada, […]
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May 15th, 2021 | Issue 6
Introduction The nation’s founding compromise with slavery resulted in a Constitution that proclaimed universal liberty in theory while protecting human enslavement in practice.[1] After centuries of struggle and a cataclysmic Civil War, a new constitutional order emerged: A Second Founding of the nation that sought to dismantle the legacies of slavery and turn American law […]
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May 15th, 2021 | Issue 6
A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as reliable […]
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May 15th, 2021 | Issue 6
The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules […]
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May 06th, 2021 | Online Edition
Patents are legal delinquents. A growing body of empirical evidence demonstrates that patents repeatedly fail to fulfill the responsibilities they have been assigned in fostering innovation. But I argue here that in their moments of misbehavior, we can catch a glimpse of the social roles patents play when no one is watching. Drawing on insights […]
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April 29th, 2021 | Issue 5
Municipal charters are the forgotten constitutions of our federal system. Scholars generally understand our democracy to be governed by federal and state constitutions, but there is a third, almost entirely ignored realm of constitutional law and practice that lives at the local-government level, embodied in the charters that govern cities, counties, and towns. Engaging these […]
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April 28th, 2021 | Issue 5
This Article provides an account of precedent that doesn’t call upon it to do the one thing that everyone expects: constrain judicial decision-making. Instead, precedent is tasked to do something else: identify lawful options. So instead of beginning with precedent’s limited ability to constrain, the argument focuses on what precedent enables. On reflection, precedent […]
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March 20th, 2021 | Issue 4 Volume 99
Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era (1890–1920), a time when […]
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March 20th, 2021 | Issue 4 Volume 99
Introduction The challenge handed to the musician was peculiar and daunting: Take a five-second sample of a randomly selected song and, with just a moment’s notice, transform it into a full-length piece composed in the style of a completely different artist.[1] On this occasion, the musician rose to the challenge with such aplomb that it […]
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February 23rd, 2021 | Online Edition
Abstract In the aftermath of the 2020 election the United States experienced an antidemocratic crisis, with a chief executive attempting to delegitimize the general election and declare victory in an election that all impartial observers stated he lost. In comparative terms, the U.S. election system has been much maligned—it is highly localized and partisan, and […]
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February 23rd, 2021 | Issue 3 Volume 99
The Supreme Court often insists that Fourth Amendment rules must be objective. The doctrine should focus on what police officers do, not what they are thinking when they do it. Recently, however, Fourth Amendment law’s objective façade has begun to crack. In a series of cases, the Supreme Court has introduced subjective tests. Fourth Amendment […]
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February 23rd, 2021 | Issue 3 Volume 99
Although scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, parallel questions regarding military office-holding have received insufficient attention. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President, as Commander in Chief, holds greater authority over the military. For its […]
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December 20th, 2020 | Issue 2 Volume 99
The doctrines that license “facial challenges” to the constitutionality of statutes are widely misunderstood. So are the two leading devices for limiting facial challenges’ potentially wrecking-ball effects: narrowing or saving constructions and severability doctrine. This Article advances entwined theses about facial challenges, narrowing constructions, and statutory severability. Although the Supreme Court long maintained otherwise, facial […]
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December 20th, 2020 | Issue 2 Volume 99
Introduction In a perfectly competitive market, the law should simply give effect to the parties’ agreements (assuming, that is, that efficiency is all we care about). Real-world markets and real people are often a far cry from this ideal. Market failures (including behavioral ones) call for serious consideration of regulation. For decades, market regulation has […]
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November 23rd, 2020 | Online Edition
Letter Carrier Dwight Washington was recently delivering mail in an Abington, PA, neighborhood when he spotted a house on fire. Washington leapt into action, rushing to pound on the front door and also alert neighbors, who called 911. The Postal Service employee located a fire extinguisher and a garden hose, and he battled the blaze […]
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November 19th, 2020 | Issue 1 Volume 99
We spend over $100 billion each year on policing in the United States, yet have very little idea of what keeps us safe. From the adoption of new technologies like facial recognition to militarization to stop-and-frisk tactics, and much else, police in the United States pursue public safety strategies without understanding the full range of […]
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November 19th, 2020 | Issue 1 Volume 99
Class action law is modeled on the assumption that a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund […]
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October 23rd, 2020 | Online Edition
Introduction The Peruvian economist Hernando de Soto has written extensively on difficulties faced by the poor in developing countries.[1] One of these difficulties is that poor people in developing countries suffer from ill-defined property rights that undermine their ability to both protect their homes and invest in their communities. De Soto’s argument is undoubtedly true, […]
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June 15th, 2020 | Symposium Issue Volume 98
I. Introduction Most mass tort personal injury claims, like virtually all modern lawsuits, are eventually resolved through settlement. Mass tort settlements, which provide monetary compensation to participating claimants, typically do not involve a court-certified class. Rather, they are usually accomplished through private (and confidential) agreements between the defendant and particular plaintiffs’ counsel that seek to […]
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June 15th, 2020 | Symposium Issue Volume 98
Introduction Ever since marks became important selling devices in the late nineteenth century, the law has recognized two distinct theories of protection: trademark infringement and unfair competition. In the latter part of the nineteenth century, when modern trademark law began to take shape, unfair competition stood ready to reach cases that trademark infringement could not. […]
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June 15th, 2020 | Symposium Issue Volume 98
This Article critically examines copyright’s scheme of statutory damages. It argues that the statutory framework and its implementation by the courts do not find adequate support in any of the rationales commonly invoked in the case law, including evidentiary difficulties, retribution, or deterrence. The paper then reviews an alternative rationale: the economic argument for supracompensatory […]
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June 15th, 2020 | Symposium Issue Volume 98
Introduction Ten years ago, the U.S. Senate and House of Representatives enacted resolutions that apologized to Black Americans “on behalf of the people of the United States[] for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow laws.”[1] Despite acknowledging “the fundamental injustice, cruelty, brutality, and inhumanity of slavery […]
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June 15th, 2020 | Symposium Issue Volume 98
Patent damages and patent breadth are substitutes in producing innovation incentives. That is, given any existing damages and breadth regime, we can decrease (increase) damages and increase (decrease) breadth to keep the expected profit from an innovation constant. By use of numerical simulations, we show that for any given level of ex ante innovation incentive, […]
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June 15th, 2020 | Symposium Issue Volume 98
The calculation of patent damages such as a reasonable royalty presents significant challenges for which the use of expert testimony is predictable, if not unavoidably vital. Struggles to employ and at the same time guide and restrain expert testimony on reasonable royalty damages have become prominent in the last two decades, in substantial part because […]
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June 15th, 2020 | Symposium Issue
Introduction For a tense six months, it seemed possible that the Trump Administration would be ordered to do the impossible. A clash of injunctions from different federal courts seemed imminent, one commanding it to continue part of a program inherited from the Obama Administration—and another commanding it to halt the program, full stop. In early […]
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June 15th, 2020 | Symposium Issue
This Article explains how common law judges can respond to situations in which a public good that is a necessary predicate for determining liability does not exist. To bring a products liability or environmental harm case, plaintiffs must prove that the product or chemical has a propensity to injure people and that it injured them. […]
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June 15th, 2020 | Symposium Issue
Introduction After an anonymous source tipped the Environmental Protection Agency (EPA) off to a site operated by the Massachusetts Highway Department (MHD) containing unlabeled barrels, corroded drums, and stained soil, EPA found similar conditions at several MHD disposal sites that violated state and federal environmental laws.[1] An EPA enforcement official informally told MHD’s general counsel […]
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May 26th, 2020 | Issue 6
The void-for-vagueness doctrine dictates that unduly vague penal statutes will be considered void based on due process principles. The U.S. Supreme Court has grounded the doctrine in two rationales. First, vague penal statutes fail to inform the ordinary person of what is proscribed, thereby violating an essential aspect of due process: the requirement of fair […]
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May 26th, 2020 | Issue 6
This Article offers a theory of mutual fund voting to answer when mutual funds should vote on behalf of their investors and when they should not. It argues that voting authority for mutual funds ought to depend upon: (1) whether the fund possesses a comparative informational advantage, and (2) the ability of the fund to assume a […]
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May 04th, 2020 | Online Edition
I. Introduction Tasks as small as organizing after-work drinks and as big as designing the firm’s website create and sustain loyalty, increase productivity, and hold an organization together. In the crisis conditions of the COVID-19 quarantine, workers created new systems to keep governments, businesses, and schools functioning while also figuring out new ways to keep […]
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May 02nd, 2020 | Issue 5
Two models of the firm dominate corporate law. Under the management-power model, decision-making power rests primarily with corporate insiders (officers and directors). The competing shareholder-power model defends increased shareholder power to limit managerial authority. Both models view insiders and shareholders as engaged in a competitive struggle for corporate power in which corporate law functions to promote operational […]
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May 01st, 2020 | Issue 5
To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets […]
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March 23rd, 2020 | Issue 4
Objection rules enforced by forfeiture penalties make the right to appeal contingent on whether the party injured by an opponent’s or judge’s error made a timely objection or motion in the trial court. “No procedural principle is more familiar” than that a party who does not challenge an error at trial forfeits, partially or wholly, […]
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March 23rd, 2020 | Issue 4
Copyright law employs a one-size-fits-all strict liability regime against all unauthorized users of copyrighted works. The current regime takes no account of the blameworthiness of the unauthorized user or of the information costs she faces. Nor does it consider ways in which the rightsholders may have contributed to potential infringements, or ways in which they […]
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February 28th, 2020 | Online Edition
Abstract One of many potential forms of government corruption is self-dealing because officials can steer taxpayer funds into their own pockets. Unfortunately, self-dealing at the highest levels of the federal government is not exactly outlawed—in part because the laws do not clearly apply to certain important individuals and in part because there is no enforcement […]
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February 18th, 2020 | Issue 3
Preliminary agreements—variously labeled as memoranda of understanding, letters of intent, term sheets, commitment letters, or agreements in principle—are common in complex business transactions. They document an incomplete set of terms that the parties have agreed upon, while anticipating further negotiation of the remaining provisions. They often create legal obligations, particularly a duty to negotiate in […]
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February 18th, 2020 | Issue 3
The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters, and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions—particularly class-banning arbitration clauses. As these […]
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February 04th, 2020 | Women & Law
Kudos to law schools for focusing on women in the legal profession. It’s not always easy being a woman in this profession or, what someone from my home state of Texas once called me, “a Lady Lawyer.” That was more than ten years ago, when I was a little-known alumnus of the Solicitor General’s Office […]
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December 21st, 2019 | Issue 2
Introduction Over the course of a little more than a century, American liberals (or, in an earlier period, progressives) and conservatives have switched positions on judicial review, judicial restraint, and the role of the federal courts—not once, but twice.[1] At the beginning of the twentieth century, progressives grew increasingly skeptical of judicial review, while conservatives […]
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December 21st, 2019 | Issue 2
Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the […]
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November 27th, 2019 | Issue 1
This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state level can contribute to statistically significant reductions in sentence length, interjudge disparities, and racial disparities. For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid- to late-twentieth […]
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November 27th, 2019 | Issue 1
The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root […]
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November 04th, 2019 | Online Edition
Abstract The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s […]
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October 22nd, 2019 | Online Edition
Abstract The emerging field of synthetic biology—with the potential for engineering life from scratch—has inherited the laws and regulations of its biotechnology precursor. Yet, synthetic biology allows scientists to do entirely new things. This Article considers the resulting legal and ethical issues after surveying the technological capabilities developed within the field of synthetic biology. I. […]
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October 09th, 2019 | Online Edition
I. Introduction Law students come to law school with varying conceptions about judicial decision-making. As students move through law school, these conceptions may change multiple times and sometimes dramatically. Some students think that judges decide cases based on pure logic, while others believe that it is all politics or that judges simply follow their hunches.[1] […]
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September 15th, 2019 | Online Edition
I. Introduction “Only a lunatic or a fanatic would undertake such an endeavor.”[1] So said the district court in Sutherland v. Ernst & Young LLP, a case involving Stephanie Sutherland’s claim that her employer owed her $1,867.02 in unpaid overtime under the Fair Labor Standards Act of 1938 (FLSA).[2] Sutherland sued Ernst & Young in […]
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September 09th, 2019 | Online Edition
Abstract In Timbs v. Indiana, the Supreme Court held the Eighth Amendment’s prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. While the decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. Both […]
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July 18th, 2019 | Online Edition
Since its founding over 50 years ago, Texas Rules of Form, more commonly known as The Greenbook,[1] has gone through 14 editions and expanded from a diminutive 17 pages to its current 132 pages.[2] Today’s Greenbook provides not only Texas-specific citation information but also serves as a guide to general Texas practice, Texas court structure, […]
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June 25th, 2019 | Symposium Issue
President Donald Trump’s flagrant and frequent violations of fundamental norms of presidential behavior undermine our constitutional democracy. They test the ability of long-standing existing systems and institutions to sustain the rule of law, to protect fundamental rights and values, and to check presidential wrongdoing. This Article is part of a symposium that addresses the pressing […]
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June 25th, 2019 | Symposium Issue
Introduction For all the talk in recent years of “partisan warfare”[1] and “hardball”[2] tactics on the national stage, state governments have been giving their national counterparts a run for their money. State-government officials in multiple states have engaged in high-stakes “power plays.”[3] Some have been high profile: legislatures in North Carolina, Wisconsin, and Michigan have […]
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June 25th, 2019 | Symposium Issue
Introduction Over the last few years, “sanctuary cities”—jurisdictions that refuse to assist federal government attempts to deport undocumented immigrants—have been at the center of the growing political conflict over immigration policy. Donald Trump targeted sanctuary cities for special opprobrium in his 2016 presidential campaign,[1] and his Administration has made a priority of forcing them to […]
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June 24th, 2019 | Symposium Issue
I. Introduction Dating back to Senate demands for information about President George Washington’s instructions for the negotiations of the Jay Treaty, Congress and the Executive have regularly locked in struggles over legislative demands for information.[1] The intensity of longstanding struggles ebbs and flows with divided versus unified government and political polarization.[2] However, beneath that partisan […]
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May 23rd, 2019 | Issue 6
I. Introduction For centuries, the foundation of the Anglo-American trial has been the witness.[1] Witnesses report on their personal observations, provide opinions of character, offer scientific explanations, and in the case of parties, narrate their own story.[2] Indeed, even for documentary and other physical evidence, witnesses often provide the conduit through which such evidence reaches […]
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May 23rd, 2019 | Issue 6
Introduction Statutory interpretation isn’t always a clean slate. Courts are commonly asked to revisit or revise statutory provisions they previously encountered. Those requests implicate the doctrine of stare decisis. Applying principles of horizontal stare decisis to the domain of statutes raises a number of complicated questions for judges. One is how to treat prior judicial […]
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April 18th, 2019 | Issue 5
Introduction Defensive systems that are primarily designed to protect civilians from the harms of war are ubiquitous. Some, like shelters, sirens, or gas masks, have been around for over a century. Walls and barriers, which have a much older pedigree, have proliferated in recent years (even if mostly to prevent immigration, not to protect from […]
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April 18th, 2019 | Issue 5
Introduction The basic principles governing the power of eminent domain might seem so well established by now as to be beyond controversy: the government may confiscate private property for public use but must compensate the owner for the value of what the government took. Those rules have been part of the U.S. Constitution since the […]
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March 31st, 2019 | Issue 4 Volume 97
In wild periods of alarm, one failure makes many, and the best way to prevent the derivative failures is to arrest the primary failure which causes them. –Walter Bagehot[1] Introduction How best to fight financial panics is a matter of ongoing debate. On the one hand, concerns about moral hazard abound. When bank depositors and […]
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February 15th, 2019 | Issue 3
Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries […]
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February 15th, 2019 | Issue 3
When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding […]
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February 15th, 2019 | Issue 3
A decade ago, the patent-eligible subject matter requirement was defunct. Several recent Supreme Court decisions, however, have made eligibility the most important issue in many patent cases. To date, debates over the resurgent doctrine have focused mainly on its substance. Critics contend that the Supreme Court’s case law makes patents too easy to invalidate and […]
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December 23rd, 2018 | Issue 2 Volume 97
Our federal criminal code defines crimes, but declines to sort its fraud offenses according to degrees of harm or culpability. Although state prosecutors routinely charge crimes such as homicide or robbery in varying degrees, the federal code’s core fraud statutes are noticeably flat. There is no such thing as first- or second-degree fraud in the […]
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December 23rd, 2018 | Issue 2 Volume 97
Epidemics are the result of the actions of multiple actors, which necessitates a comprehensive allocation of responsibility. However, the traditional framework for responsibility, as well as the emerging norm of the responsibility to protect, are inadequate for addressing epidemics. Both perpetuate the fallacy that states can, on their own, cope with the increased incidence of […]
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November 18th, 2018 | Issue 1 Volume 97
The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise […]
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November 18th, 2018 | Issue 1 Volume 97
Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades—especially since the tobacco litigation of the late […]
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November 05th, 2018 | Online Edition
I. Introduction Imagine finding yourself in litigation in a foreign country. Then, imagine learning that, in the past, your opponent has routinely hired the person who will be the “neutral” adjudicator in your case. Now imagine that since the commencement of the litigation your opponent subsequently has appointed the adjudicator to also be its party-appointed […]
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July 01st, 2018 | Symposium Issue Volume 96
Prepared for a symposium celebrating the groundbreaking career of Jay Westbrook, this Article examines recent evidence of fear of abuse of the benefits of consumer bankruptcy and the gradual abatement of that fear in modern consumer insolvency law reform. It marshals evidence of a recent and accelerating retreat in both the judicial discretion that Westbrook attributed […]
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July 01st, 2018 | Symposium Issue Volume 96
I. Introduction If you ask Teresa Sullivan, Elizabeth Warren, or Jay Westbrook about the early years of their groundbreaking Consumer Bankruptcy Project (CBP), they eventually will tell you about R2D2, their mobile photocopier. They carted R2D2 across the country to copy the bankruptcy court records that formed the backbone of their examination of the lives […]
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July 01st, 2018 | Symposium Issue Volume 96
In a 1989 article that remains one of the clearest, most sensible explications of an especially tricky point of bankruptcy law, Jay Westbrook announced a forthright methodology: “I call my approach ‘functional,’ because it proceeds by working through the problem from first principles.”[1] The same basic technique can tell us a lot about how banks—and […]
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July 01st, 2018 | Symposium Issue Volume 96
Introduction “Modified universalism” is to date the dominant approach for addressing cross-border insolvency.[1] Heavily influenced by the scholarship and advocacy of Professor Jay Westbrook,[2] it has evolved into a set of norms that can guide parties in actual cases. Adapted to the reality of a world divided into different legal systems and myriad business structures […]
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July 01st, 2018 | Symposium Issue Volume 96
I. Introduction and Summary Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under § 365 of the Bankruptcy Code.[1] The case law is “hopelessly convoluted” and a “bramble-filled thicket.”[2] While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law […]
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July 01st, 2018 | Symposium Issue Volume 96
In this time of relative prosperity, large multinational companies are filing insolvency proceedings all over the world.[1] Restructuring is now part of the daily routine of global business—back then a bit more, at the moment a bit less, but always a stream of needed repairs. The overall challenge is to manage damaged enterprises across borders […]
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July 01st, 2018 | Online Edition
Introduction In August 2017, Hurricane Harvey decimated parts of Houston and other coastal Texas cities. As America’s fourth largest city (with a population of approximately 2.3 million[1]), any major storm that strikes Houston is potentially catastrophic. Harvey, a category 4 tropical storm, was not your average storm. Harvey was the largest storm to hit Texas […]
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June 17th, 2018 | Online Edition
Introduction As Hurricane Harvey grew in strength and moved towards the Texas coast in August 2017, an immigration storm brewed as well. As the hurricane hit, federal and state policymakers were adopting immigration decisions that would reshape the way immigrants are treated in the state of Texas. In addition to the physical and temporal proximity […]
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May 17th, 2018 | Issue 6 Volume 96
Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief—the sort of consideration that an agency buckling under the strain […]
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May 17th, 2018 | Issue 6 Volume 96
American cities are under attack. The last few years have witnessed an explosion of preemptive legislation challenging and overriding municipal ordinances across a wide range of policy areas. State–city conflicts over the municipal minimum wage, LGBT antidiscrimination, and sanctuary city laws have garnered the most attention, but these conflicts are representative of a larger trend […]
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April 05th, 2018 | Issue 5 Volume 96
This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation—Lexipol LLC—in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in […]
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April 05th, 2018 | Issue 5 Volume 96
The nondelegation doctrine is powerful—so powerful that the Supreme Court is afraid to use it. The doctrine holds that Congress cannot delegate its legislative power to agencies. If the Court were to enforce the doctrine, entire statutory provisions—and perhaps entire statutory schemes—would be at risk of invalidation. Yet there is no need for such a […]
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March 11th, 2018 | Issue 4 Volume 96
Law and economics scholars have long argued that efficiency is best served when a firm’s capital structure is arranged as a single hierarchical value waterfall. In such a regime, claimants with seniority are made whole before the next-junior stakeholders receive anything. To implement this single waterfall approach, those scholars envision a property-based mechanism: a blanket […]
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March 11th, 2018 | Issue 4 Volume 96
In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their legal claims are viable. Plaintiffs have argued that data breaches create a risk of future injury, such as identity theft, fraud, or damaged reputations, and that breaches […]
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March 11th, 2018 | Issue 4 Volume 96
Lawyers once joined their firms with the expectation that they would remain, become partners, and work themselves up the ladder of lockstep compensation. Lateral movements of lawyers among firms were rare. Ethics norms of the time assumed lawyers stayed with their firms.[1] That, of course, has changed as lawyer mobility has become a pervasive and […]
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February 10th, 2018 | Issue 3 Volume 96
Since the 1970s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This Article argues that this is a mistake. Instead, Gender and the Tournament attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both […]
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February 10th, 2018 | Issue 3 Volume 96
We live in a time of anxiety about the rule of law. In railing against individual judges and their decisions, angry protesters—including elected officials and the President—presume a knowledge of what the Constitution requires, judicial pronouncements to the contrary notwithstanding. Recent bluster raises a question about what would occur if the President ordered government officials […]
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February 10th, 2018 | Issue 3 Volume 96
Event studies have become increasingly important in securities fraud litigation, and the Supreme Court’s 2014 decision in Halliburton Co. v. Erica P. John Fund, Inc. heightened their importance by holding that the results of event studies could be used to obtain or rebut the presumption of reliance at the class certification stage. As a result, […]
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January 13th, 2018 | Online Edition
President Trump’s January 27 Executive Order[1] on immigration sent shockwaves throughout our legal order. For 90 days, certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—deemed “detrimental”[2] to American interests—would be denied entry. For 120 days, the Refugee Admissions Program would be suspended. Syrian refugees in particular would be denied entry indefinitely. Almost […]
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December 21st, 2017 | Issue 2 Volume 96
Managerial power theory holds that structural flaws in corporate governance, such as board defenses, enable opportunistic managers to extract excessive pay. While this theory has proven highly influential, this Article argues that it fails to answer important questions. For example, how does managerial power theory relate to the prevailing economic paradigm of CEO pay as […]
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December 21st, 2017 | Issue 2 Volume 96
Abstract International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what has been […]
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December 21st, 2017 | Issue 2 Volume 96
This is an era of striking economic and political inequality. The statistics are familiar, but a few numbers are worth highlighting. Income disparities in the United States are now the highest they have been since the Gilded Age,[1] with the top 1% of earners taking home 20.1% of national income.[2] In fact, the twenty wealthiest […]
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November 15th, 2017 | Issue 1 Volume 96
It’s an absurd and astonishing fact about current constitutional law that it still hasn’t answered, and can’t answer, the most basic questions about privatization. We know the ratio between American soldiers and American private military contractors in the Iraq war: one to one.[1] We know the Central Intelligence Agency (CIA) used such contractors to interrogate—and […]
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November 15th, 2017 | Issue 1 Volume 96
Abstract The President’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the President. The President speaks to the entire population, about the full range of domestic and international issues we collectively confront, and on behalf of the country to the rest of the […]
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November 10th, 2017 | Online Edition
Introduction Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere,[1] but that it may be located anywhere, and at least parts of it may be located nearly everywhere. And access to data does not depend on physical proximity. These implications of data’s intangibility challenge […]
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May 19th, 2017 | Online Edition
To help pay for school, Jameka Evans took a job as a security guard at Georgia Regional Hospital in Savannah.[1] Evans is a lesbian but never spoke about her sexuality at work.[2] Her silence did not conceal her identity, however. Evans’s masculine clothing and hairstyles telegraphed her sexual orientation to colleagues.[3] Evans claims she was […]
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May 16th, 2017 | Issue 6 Volume 95
Chemerinsky and Goodwin, believing that Roe was “unquestionably correct in its conclusion” but that its progeny—cases that shifted the law to the undue burden test and toward upholding restrictions on abortion—were misguided, assert that abortion is best regarded under the Constitution as a private choice for each woman. Their article begins by explaining what they […]
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May 16th, 2017 | Issue 5 Volume 95
Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but […]
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May 16th, 2017 | Issue 3 Volume 95
Howard argues that permanent residents should be given the right to vote in state and local elections because excluding persons from the right to vote is often the equivalent, as a practical matter, of excluding them from genuine representation. His Note proceeds by addressing the history and current state of noncitizen voting, before describing how […]
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April 13th, 2017 | Issue 5 Volume 95
At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. Cohen’s Article traces […]
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April 13th, 2017 | Issue 5 Volume 95
Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the […]
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April 05th, 2017 | Issue 4 Volume 95
Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends […]
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March 30th, 2017 | Issue 3 Volume 95
Eichensehr explores the line between public and private cybersecurity functions and provides a descriptive account of the public-private cybersecurity system. Her Article first highlights the relative roles of the U.S. government and private sector in four important contexts related to international cybersecurity threats: disrupting networks of infected computers used by transnational-criminal groups, remediating software vulnerabilities […]
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March 30th, 2017 | Issue 3 Volume 95
This Article explores the ways in which states work with non-state actors to accomplish their military and political objectives, with particular concern for states who use non-state actors as a proxy to violate international law. The authors recognize that existing international law doctrines on state responsibility for such behavior leaves an accountability gap, fails to […]
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January 12th, 2017 | Issue 2 Volume 95
Law contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes—namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need […]
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January 12th, 2017 | Issue 2 Volume 95
Eagly argues that protective gaps for immigrants in local criminal justice policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each […]
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January 12th, 2017 | Issue 2 Volume 95
King and Wright, in the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveal a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, they found that what once were informal, disfavored interactions have quietly, […]
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January 12th, 2017 | Issue 2 Volume 95
For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the […]
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December 20th, 2016 | Issue 1 Volume 95
Mark Lemley states that the patent system “seems in the midst of truly dramatic change.” Despite this, Lemley finds that “something curious has happened to the fundamental characteristics of the patent ecosystem during this period: very little.” Lemley explores this surprising result, first by reviewing the changes to the patent system in the past thirty-five […]
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December 20th, 2016 | Issue 1 Volume 95
In this book review, Conor Clarke consider’s Gabriel Zucman’s new book, The Hidden Wealth of Nations: The Scourge of Tax Havens. Clarke first summarizes and explains Zucman’s central findings for a legal audience, then situates those findings against the backdrop of two long-running debates in international taxation—what is a tax haven, and why are they […]
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May 19th, 2016 | Issue 6 Volume 94
When investment banks advise on merger and acquisition (M&A) transactions, are they fiduciaries of their clients, gatekeepers for investors, or simply arm’s-length counterparties with no other-regarding duties? Scholars have generally treated M&A advisors as arm’s-length counterparties, putting faith in the power of contract law and market constraints to discipline errant bank behavior. In this Article, […]
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May 19th, 2016 | Issue 6 Volume 94
The Dodd-Frank Wall Street Reform Act allowed the Securities and Exchange Commission (SEC) to bring almost any claim that it can file in federal court to its own administrative law judges (ALJs). In this Article, Professor David Zaring evaluates the SEC’s new ALJ policy both qualitatively and quantitatively, offering an in-depth perspective on how formal […]
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April 25th, 2016 | Issue 5 Volume 94
Many legal rules are designed to address the imperfections of real-world institutions. Rules of justiciability and deference, statutes setting administrative deadlines, multinational treaties that protect foreign nationals—all are designed, at least to a degree, to minimize and correct the limitations of courts, agencies, and self-interested states at making the decisions the law requires of them. […]
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April 25th, 2016 | Issue 5 Volume 94
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American […]
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April 25th, 2016 | Issue 5 Volume 94
American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. Professor Whitman addresses this troubling state of affairs. He contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less […]
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March 27th, 2016 | Issue 4 Volume 94
In this Article, Professor John M. Golden explores the puzzle of legal anti-redundancy and examines how legal doctrine can be designed to obtain important benefits from redundancy while substantially mitigating anti-redundancy concerns. He analyzes redundancy and anti-redundancy as general legal phenomena, illustrates their interaction through detailed examples from patent law, and suggests how redundancy and anti-redundancy […]
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March 10th, 2016 | Issue 3 Volume 94
Judges, lawyers, and scholars have long decried the high reversal rate district courts face in patent cases. Many have suggested greater district court specialization as a solution, and Congress in 2011 enacted legislation to promote such specialization. In this Article, Professors Lemley and Miller investigate the impact of a novel measure of a judge’s experience […]
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March 10th, 2016 | Issue 3 Volume 94
Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive, privilege, federalism, and the role of courts. Though these judgments are defended with great intensity and conviction, some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as […]
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March 10th, 2016 | Issue 2 Volume 94
The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They […]
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March 10th, 2016 | Issue 2 Volume 94
Arbitration clauses have become ubiquitous. Arbitration clauses require consumers and employees to waive their rights to bring litigation in court, leaving private arbitration as their only avenue to seek redress for violations of any law, including consumer protection laws, antitrust law, and anti-discrimination laws. The arbitration process is less protective of consumers and employees in […]
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March 09th, 2016 | Issue 1 Volume 94
The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond […]
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March 09th, 2016 | Issue 1 Volume 94
Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held […]
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