Articles

This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period’s enactment of written constitutions and innovation in the separation of powers, this Article argues that the first “textualist” turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation.

Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric “science” of legal interpretation. Scalia’s new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively—laying groundwork for the rise of judicial supremacy that would follow.

Over the last few decades, uniform rules have come to govern only a fraction of cases in state courts. Instead, pleading standards vary by case type, discovery limits hinge on amount in controversy, and rules flex based on party type, representation status, and other factors. Quietly, tailored procedures have come to dominate state court civil litigation, impacting millions of cases each year—from consumer debt to personal injury to complex commercial.

This Article analyzes the rise of tailored procedures in state courts and the implications for access to justice, separation of powers, and court legitimacy. Through a case study of Arizona’s procedural evolution that draws on an original dataset of over 6,600 administrative and rulemaking orders, I trace how such tailoring developed, create a typology that can serve as a menu of design options for courts, and evaluate tailoring’s tradeoffs. Without transsubstantivity as a rulemaking backstop in state courts, I also propose three new safeguards to ensure that tailored rules maximize benefits and minimize harms: proportional design, reason-giving, and iterative review.

Tailoring, however, is about more than just gains and losses in fairness or accuracy. It is about a profound shift in who makes procedure and the goals it might achieve. As state courts have centralized authority and expanded their use of tailoring, they have displaced local rulemaking and narrowed judicial discretion. As rulemakers have grown more ambitious, they have expanded the values that procedure has traditionally advanced. These shifts raise important questions about who should make what procedure, the relationship between procedure and substance, and the role of courts in society.

After decades of moves towards trade liberalization, trade restrictions are back in vogue. The United States is raising tariffs, escalating tensions with trading partners, and has paralyzed the World Trade Organization’s dispute-settlement system. The continuation of adversarial actions seems assured, with both political parties indicating interest in defending against imports, ongoing calls to “decouple” from China, and President Trump’s penchant for unilateralism.

Against this backdrop of rising trade tensions and weakening international legal constraints, I examine the demand for defensive trade measures and the domestic administrative processes that result in them. I advance a bottom-up perspective that trains attention on the actors that mobilize these processes to enforce “administrative trade remedies,” which I define broadly to include any domestic law that aims to defend domestic industries against imports and is administered by an administrative agency, e.g., antidumping duties or Section 232 national security trade actions. Rather than focus on Congress or the President, this view appreciates the role of firms, workers, and lawyers in mobilizing administrative agencies to enforce, and thereby make, trade law.

I draw on over forty interviews with those involved in administrative trade-remedy processes and original datasets of agency investigations to describe how those who seek and benefit from tariffs choose among a toolkit of remedies. Although tools with greater presidential involvement in the decisionmaking process are receiving increased attention, I find that private actors remain actively engaged in the enforcement of administrative trade remedies. And they continue to prefer the antidumping and countervailing duty process because of its relative insulation from politics (especially the President) and resulting predictability and durability.

A bottom-up view of administrative trade remedies in the United States contributes first to our understanding of trade lawmaking and policy. In addition to highlighting the relevance of private actors and agency processes, the premium that relevant actors place on a process’s perceived distance from politics and predictability helps explain the continuing popularity of such a scheme, as well as the value of consistent agency practice during a time of high political polarization and volatility. This approach can also travel to other countries, where the use of defensive measures is similarly on the rise, or to other areas of U.S. trade law. Second, I contribute to scholarship that seeks to “normalize” trade law. The mixed public-private nature of the trade-remedies enforcement scheme and interviewees’ discussions of the pros and cons of administrative procedures illustrate the benefits of bringing research on “ordinary” areas of domestic law to bear on trade law, and vice versa.

Election administration in the United States is fragmented. Instead of having one uniform system, each state governs elections under distinct rules and hierarchies. Yet, one feature remains consistent among the !fty systems: Each is led by a “chief election official.” Though some states rely on boards, most vest this authority in a single person—what this Article calls a “unitary chief election official.”

The unitary chief election of!cial wields immense power. They enjoy unilateral authority to render decisions affecting voter registration, voting equipment, access to voting, ballot access, ballot measures, election counting and certi!cation, and election official training, among other things. What is seemingly a procedural office can accordingly be used to impact substantive electoral outcomes. Because of this, subversive partisan actors have made increasing attempts over the years to co-opt the position, viewing it as a means to legally sway elections in their party’s favor.

Despite their significance, unitary chief election officials remain relatively underdiscussed in the literature. Questions remain about the precise extent of their authority, as well as what mechanisms exist to ensure that abusive officials can be held to account. This Article therefore makes a first, detailed attempt to answer these questions. To begin, the Article provides a descriptive account of the breadth of powers that the average unitary chief election official enjoys. It draws upon the election codes of eleven states to do this.

Next, the Article considers how to best construct an accountability regime that insulates the office from partisan manipulation. Through the lens of democracy theory, the Article concludes that we should deemphasize electoral accountability, as truly neutral chief election officials must answer to democratic principles rather than popular whims. Furthermore, we should treat ex post forms of accountability, such as lawsuits, as secondary fail-safe options rather than as primary ones. On the other hand, we should channel more resources to ex ante legal and internal modes of accountability. By reframing accountability for unitary chief election officials, this Article offers a path to shielding the office from undue partisan capture and, in turn, strengthening the democratic process.

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces the understudied and undertheorized private prosecutions of the family regulation system and situates them within the carceral state. Drawing on sources including statutes, legislative history, case law, accounts developed by other scholars, information obtained through records requests, and interviews with practitioners and state officials, it sketches out the legal framework for these prosecutions and traces recurring patterns of use. This study reveals private prosecutions to be a tool of last resort: Private individuals opt to prosecute their loved ones—or even themselves—after the state has failed to meet their needs through other means.

The Article makes two contributions. First, it develops an initial descriptive account of private prosecutions in the family regulation system. Second, the Article builds from that account to develop a theoretical claim. It argues that private prosecution illustrates the state’s decision to operate an expansive carceral state in place of a robust welfare state. Moreover, private prosecution lays bare the central role of private individuals in maintaining and expanding the carceral state, as private prosecutors increase the reach of the carceral apparatus while entrenching its logics. But even as private prosecutions shore up the carceral state, so too do they allow private individuals to extract support from it. As debates around the utility of private prosecution and enforcement across the carceral state continue, private dependency prosecutions offer a reminder. Before evaluating the utility of private prosecution, we must ask its goal: to disrupt the carceral state or to provide immediate relief to some already suffering in its thrall.

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and offers a set of concrete proposals for reforming IP through expanding and adapting its terminal rules. Finally, the Article considers what lessons, if any, traditional property law might learn from how IP ends.

Since the Tax Revolt of the 1970s, cash-strapped state and local governments have increasingly relied on user fees to pay for public programs. Scholars attuned to city budgets have raised alarms about these fees: They undermine government’s redistributive role, impose regressive costs, and exclude low-income people from vital public services. This Article complicates these prevailing claims based on a first-of-its-kind study of user fee policies in a sample of American cities.

The Article reveals that policymakers regularly call on a progressive tool to reduce fees’ harms: fee waivers. As implemented, user fees are thus more redistributive than the standard understanding of them has allowed. But they are also more complex. The survey finds that fee waiver eligibility rules are patchwork, burdensome, and narrowly targeted. User fee rules form a multifaceted tapestry of exclusion and protection, deprivation and generosity.

The Article also sounds a clarion call: User fees’ protective features are not guaranteed. Without adequate defense, fee waivers risk succumbing to external attack from those who would outlaw them. Without adequate scrutiny, they risk falling victim to their own internal design flaws. The Article addresses these risks by offering reform principles drawn from model programs surveyed across the country. Mayors, city councils, school boards, and state legislatures can use this Article as a playbook to inform the design of user fees that raise revenue while protecting vulnerable American households.

Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This Article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from their initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of a case, from preliminary hearings to pretrial conferences to trials. The preference for vertical representation stems from the intuitive belief that continuity of representation improves outcomes for defendants. However, no prior empirical work has tested this assumption.

Using a natural experiment created by the Defender Association of Philadelphia’s transition from a fully horizontal representation system to a partially vertical one, we f ind no evidence that increasing attorney continuity through a vertical representation system improves defendant outcomes.

These findings have significant implications for how public defender offices should allocate their scarce resources. While vertical representation is considered by many to be the ideal, our results cast doubt on whether the additional resources and logistical challenges relative to horizontal representation are justified given the current reality of underfunded public defense. As jurisdictions nationwide grapple with a chronic lack of resources for public defense, this article provides crucial empirical evidence to inform decisions about how best to uphold defendants’ Sixth Amendment right to counsel.

Fast-growing startups in search of capital and liquidity have traditionally sought to exit the private capital market through M&A or IPO. Until recently, antitrust enforcers rarely challenged startup acquisitions. But under the Biden administration, enforcers worried about the growing dominance of Big Tech sued to block more startup deals. Since antitrust restricts M&A but not IPOs, one might expect that greater antitrust enforcement would cause startups to substitute one kind of exit for another, leading to more IPOs. That did not happen. While M&A and IPOs both provide liquidity, they are not perfect substitutes. We model heterogeneity in M&A and IPO pricing to explore how increased antitrust enforcement impacts venture capital. Economies of scale and scope, synergies, regulatory costs, market power, and market cyclicality can cause IPO valuations to fall significantly below M&A prices. And heightened antitrust scrutiny can reduce the value of an IPO by undermining one of its main advantages: access to publicly traded equity that can be used as currency for future acquisitions.

In this Article, we show how startups have responded to the antitrust crackdown not by choosing a different exit but by choosing no exit. Startups are easing liquidity pressure by letting employees cash out their shares in tender offers. Venture capitalists are extending their exit horizons by forming continuation funds. Would-be acquirers have developed new structures to evade antitrust law, such as the centaur—a private company funded by public company cash flows—and the reverse acquihire—a mass employee exodus from a startup to a public tech company, coupled with a cloaked payoff to the startup’s investors. We explain the implications of these changes for competition policy, capital formation, and the continuing erosion of transparency into socially important businesses.

Today, civilians can participate in war as never before. Through smartphones and the internet, civilians can now contribute directly to military operations, whether they are in an active conflict zone or on the other side of the globe. A civilian can, for example, use an app to help military forces intercept threats, join a virtual network of volunteers that conduct cyberoperations against a party to an armed conflict, or use a crowdfunding site to donate funds to provide weapons to combatants. We call this revolution in war fighting “Crowdsourced War.” This Article identifies this growing phenomenon, demonstrates how it creates extraordinary new risks for civilians, and recommends critical steps that States like the United States must take to address those risks.

In the wake of the September 11, 2001, attacks on the United States, new interpretations of the law governing armed conflict took shape. Applying these new interpretations to Crowdsourced War, this Article shows how civilians today may unknowingly forfeit their protected status and be regarded as legitimate military objectives under international law. Civilians participating in Crowdsourced War not only unwittingly endanger themselves, they also endanger civilians living and working alongside them. The spread of Crowdsourced War can also lead combatants to suspect all civilians of being participants in war—and thus lawful targets.

To address these problems, we argue it is time to adopt new rules for Crowdsourced War. States, including the United States, should revisit broad interpretations of the law first adopted for a different kind of conflict—interpretations that now make vast numbers of civilians newly vulnerable. States must also take greater responsibility when they invite civilians to participate in Crowdsourced War, including by ensuring that they do not put civilians at unnecessary risk and by informing them of the consequences they may face. Finally, international humanitarian law must be revised to account for this sea change in the way wars are fought. The International Committee for the Red Cross, together with States like the United States that are committed to the rule of law, should renew efforts to tighten standards for targeting civilians. This is necessary to ensure that the era of Crowdsourced War does not become the era in which the distinction between civilian and combatant completely evaporates.