Articles

Much of education law scholarship on school segregation has focused on majority-minority schools. Yet school segregation does not occur only in majority-minority schools, but also in so-called integrated schools: majority-white and Latine schools in which Black children are in the minority. What we know about segregation in these schools focuses on tracking, the practice of segregating Black students in classrooms according to ability, which has deleterious effects on Black children in schools where they are the minority. Outside of tracking, we have few firsthand accounts of integrated schools’ effects on these students.

In this Article, I present data obtained from in-depth interviews with ninety-five Black students and fifty Black parents. These students and parents moved from majority-Black schools to schools in which they were in the minority seeking the perceived academic benefits of an integrated school. Yet, integration and achieving better educational outcomes concern more than simple racial demographics of schools. In these interviews, students identify another avenue of in-school segregation: school policing. Black students in these integrated schools experience pervasive surveillance and punishment by school police in collaboration with other school officials. Rather than feeling truly integrated, these students feel both marginalized and unsafe in ways that undermine the academic benefits that integration is supposed to produce.

This Article does not merely contend that Black students are policed irrespective of the racial demographics of their schools. It also argues that scholars, policymakers, and lawyers need to be more attentive to student experiences in order to explicate how formally integrated institutions can nonetheless serve as domains of racial segregation. Policing affects schools’ institutional culture, reducing the benefits that were supposed to accompany racial integration. This reality suggests that the project of racial integration for Black students, a project that Brown v. Board of Education launched more than seventy years ago, may be even more illusory than we generally understand.

This Article develops a new framework for thinking about the place of race in Contracts. It argues that culture and context work in tandem in the form of “cultural scripts” to weave racial associations into texts where race is not explicitly identified. This suggests that the impact and influence of race in Contracts might have as much to do with the racialized stories that we tell about our consumer and commercial lives as it does with the racial identity of litigants.

To make this argument, this Article reconstructs the afterlives of one of Contracts’ most well-known cases, Williams v. Walker-Thomas Furniture Co. (1965). The case, now the foundation of unconscionability doctrine, pits Ora Lee Williams, a mother of seven living on welfare, against an exploitative furniture company. Although Williams’s race was not confirmed until 1997, students and teachers long before (and since) assumed that she was Black. This assumption stemmed from the ways in which casebooks talked about and framed Williams.

The Race Case in Contracts undertakes the first systematic analysis of Contracts casebooks—129 in total—to show how “cultural scripts” about urban poverty and welfare mothers tethered Williams to ideas about race generally, and Blackness specifically. In other words, stories told about and around Ora Lee Williams mattered as much as, if not more than, the fact of her racial identity. Williams illustrates that if we do not speak directly on the role of race in Contracts, these stories might speak for us.

In 2023, the Department of Justice published its first-ever report on demographic disparities in revocations of community supervision, a critical yet under-studied part of the federal criminal justice system. The report revealed extreme and systematic disparities affecting American Indian defendants. Compared to other groups, American Indians were more likely to have their supervision revoked, more likely to be revoked for non-criminal technical violations, and more likely to be sentenced to additional supervision after revocation. Although the report acknowledged these disparities, it did little to explain them.

In this Article, I provide the first legal analysis of community supervision in Indian Country, identifying three unique features that may contribute to higher rates of revocation for American Indian defendants. First, the federal government is the primary prosecutor of violent crimes in Indian Country, which creates a population of defendants who are more likely to have their supervision revoked. Second, American Indians tend to live in rural areas, where complying with the conditions of supervision is more difficult. Finally, the federal supervision system reflects a legacy of conquest that continues to reenact past episodes of discrimination, displacement, and destruction.

To reform Indian Country supervision, I argue that the federal government should recognize the inherent authority of Indian tribes to supervise tribal members living in tribal territory. Community supervision is a core part of tribal sovereignty, because it is not just a form of punishment, but also a vehicle for important social services. Recently, tribal governments have developed their own formal supervision programs that both incorporate tribal values and send fewer people to prison. By following the principles of tribal governance, community cohesion, and cultural respect, federal probation officials can promote better outcomes for Indian defendants and fuller autonomy for Indian tribes.

Public company boards of directors have opened up a new front in their longstanding battle with hedge fund activists by rewriting the procedural rules governing board elections. Many boards now require shareholders to make long and complicated sets of disclosures in order to nominate candidates for board elections. These disclosure requirements—contained in advance notice bylaws (ANBs)—have come under fire in the Delaware courts for being drafted so expansively that they seem like “tripwires” intended to protect incumbents against even the possibility of a proxy contest.

In this paper, I analyze modern ANBs, drawing insights from a new dataset consisting of over 14,000 full sets of bylaws filed by more than 3,800 U.S. public companies from 2004 to 2023. During this time, ANBs have become longer and more complex market-wide, and variation in disclosure requirements across firms has increased. Additionally, firms with relatively few disclosure provisions have tended to add more provisions if they are targeted by an activist. These changes in drafting practice may have significant effects on corporate governance. When ANBs are long and complex with ambiguous requirements, it is more costly for activists to launch proxy contests, and boards are more insulated from outside pressure. This reduction in accountability is likely more severe for small firms and firms with high agency costs. However, modern ANBs also provide the benefit of filtering out campaigns by unsophisticated activists and bad actors.

Legal reforms could reduce the costs associated with modern ANBs without eliminating their benefits. These include (1) requiring shareholders to approve ANB amendments, (2) requiring companies to give activists time to cure deficient nomination notices, and (3) allowing shareholders to facially challenge ANBs under an “overbreadth” theory. Recent efforts by shareholders also suggest that private ordering may curb some of the effects of modern ANBs without outside intervention.

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys relative consensus.

Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self- governance should turn their attention to the administrative state’s second face.

The last several years have been marked by contentious disputes about which governments represent the states of Venezuela, Libya, Yemen, Myanmar, Afghanistan, and Niger. Such disputes are far from idle curiosities—rather, they go to the core of the modern international legal order. States are the building blocks of the international legal system, but it is the consent of their governments that forms the cornerstone of international law and diplomacy. When the rightful government is contested, numerous questions emerge with enormous implications for both the states involved and the international community as a whole. Most critically, who is permitted to consent on behalf of the state—to military intervention, to treaties, to the use of state assets—or receive immunities? Who represents the state in international fora? Who is responsible for ensuring the state complies with human rights law and international humanitarian law? And what happens if different governments are recognized by different states and international organizations, as is not only possible, but common?

This Article aims to bring clarity to this debate. It begins by explaining the difference between state and government recognition. It then identifies seven important rights and responsibilities that accompany government recognition, ranging from the right to consent to military intervention to the obligation to uphold international human rights and international humanitarian law. It shows that individual states, and to a lesser extent, international organizations, are currently the primary actors in government recognition decisions. Their varying approaches to government recognition have resulted in incoherence and inconsistency that threaten to undermine international law. This Article makes the case for a new approach: granting the United Nations Credentials Committee, through the United Nations General Assembly, the power to determine the recognized government of a given state for all matters directly implicating international law. This approach would bring greater coherence to government recognition and would thereby strengthen the international legal order as a whole.

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, this analysis sheds new light on Lon Fuller’s classic functions of contractual formalities. Second, it reveals five novel functions of these formalities: diagnostic, expressive, constitutive, mapping, and experiential. Third, it shows the relevance of empirical work in behavioral science on the so-called Question Behavior Effect to our understanding of contracting behavior.

These insights from extralegal contracts are theoretically interesting in their own right and practically relevant to our understanding of legal contracts. The Article develops an account of strategic contracting behavior across legal contexts, drawing on the novel functions and Question Behavior Effect mechanisms, specifically dramatizing the impact through contract domains where enforcement is uncertain or unlikely, including preliminary agreements, surrogacy contracts, and demands for assurances.

This Article aims to reimagine impact litigation as movement law. It does so through a case study of Floyd v. City of New York, historic litigation which successfully challenged the New York Police Department’s aggressive stop and frisk policies. It documents a seminal period in the history of policing and community resistance by providing the first insider’s account of how a vibrant police accountability movement sought to leverage class action litigation to destabilize police narratives around Black criminality and significantly curtail the NYPD’s systemic program of discriminatory street encounters. It chronicles the multidimensional ways in which the litigation fed the movement and the movement fed the litigation, and how the movement ultimately utilized newfound political power to save the historic litigation outcomes from a hostile federal appellate court.

This Article proposes a theory of change in which a reimagined impact litigation can advance movement aims beyond the inherently vulnerable pursuit of judicial rights recognition in courts of law and makes an original contribution to the literature around movement lawyering by articulating concrete and replicable strategies and tactics through which the novel concept of “impact litigation as movement law” can both challenge the power of dominant political and social institutions and build the power of individuals and movements. The analysis is informed in great part through a process of oral history, drawing on interviews of numerous (but certainly not all) critical stakeholders in the Floyd process—lawyers and organizers alike—to bring the strategy, intensity, and high stakes of this fifteen-year struggle into the broader theoretical claims I seek to make.

Specifically, this Article documents how the Floyd legal team integrated community participation and expertise into the trial to further broader organizing campaigns. And it identifies five critical power-shifting strategies in the litigation that were transformational: the power of testifying; the power of watching; the power of evidence; the power of judgment; and the power of winning. Finally, this Article is a cautionary tale about the fragility of legal judgments, and a fresh and hopeful narrative about the power of mobilized movements and conscientious lawyers to achieve and protect successful litigation outcomes. Impact litigation as movement law offers a reimagined and replicable model for future efforts to challenge dominant power structures.

The recent failures of Silicon Valley Bank and First Republic have drawn attention to how rare it is for uninsured depositors at a failed bank to bear losses. In this paper, I show that ubiquitous rescues of uninsured depositors represent a recent phenomenon dating only to 2008. For many years prior to that, uninsured depositor losses were the norm. I also show that the rise of uninsured depositor rescues has coincided with a dramatic increase in FDIC costs of resolving failed banks, which I estimate resulted in at least $45 billion in additional resolution expenses over the past fifteen years. I estimate that only $4 billion of this rise in costs is attributable to transfers to uninsured depositors, with $41 billion attributable to new inefficiencies in the resolution process.

The rise in uninsured depositor rescues has resulted from a shift by the FDIC to almost always resolve failed banks by selling them as a whole (including both insured and uninsured deposits) to an acquirer, generally with a generous subsidy provided by the FDIC. This Article also presents evidence to suggest that, despite the FDIC’s statutory mandate to use the least-cost means of protecting insured depositors of a failed bank, these whole-bank sales are frequently not the most efficient means of resolving failed banks. Next, I present evidence for two probable causes of this shift. First, during the 2008 crisis, the FDIC may have initially been forced to sell whole banks to acquirers because it lacked capacity to handle the influx of failures through other means. This may have established an institutional inertia that has maintained the practice long after the exigencies that necessitated it have cleared. Second, I suggest that the FDIC may have experienced mission creep, taking it upon itself to rescue uninsured depositors whenever possible, even though U.S. law requires the FDIC to seek authorization from the U.S. President whenever it deems it necessary to deviate from least-cost resolution methods. I show that such mission creep has occurred twice in the past, and that Congress has successfully intervened to stop it in 1951 and 1991.

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the physical copy.

This Article argues that the conventional wisdom is radically blinkered. It shows that, contrary to popular belief, courts increasingly struggle to separate the intangible work from its physical form. In reality, the supposed divide between the work and the copy is far less rigid, and decidedly more contested, than scholars have recognized. Judges and commentators often confuse the physical object—a biological substance, a written-down recipe, a computer program, a physical building, a living garden, a copy of a work of visual art—for the intangible work itself. The result is a thickly tangled, sometimes messy, and deeply incoherent body of law.

This Article synthesizes history, theory, and current doctrine to critically analyze these trends. It traces the roots of the intangible/physical dichotomy. It explores how twentieth-century courts navigated this distinction and demonstrates that modern courts remain sharply divided over how to define the intangible work. These disagreements reflect confusion about the kinds of objects that could be eligible for copyright protection. In the end, I argue that this confusion raises fundamental questions about the limits of our copyright system. By grappling with these questions, this Article seeks to advance a new analytical paradigm for thinking about the trajectory, coherence, and breadth of copyright law.