Volume 94, Number 1

The last decade has seen renewed debate, much of it between feminists, about workplace and school regulation of sexual conduct. Those debates proceed on the assumption that institutions distinguish permissible sex from impermissible sex based on whether it is consensual or, in civil rights parlance, “welcome.” The person at greatest risk of punishment by an employer or school, it would then appear, is the heterosexual man who seeks sex with women and who, allegedly, transgresses the bounds of their consent. This story, though, is incomplete. Workplaces and schools have long punished workers and students for having sex that is indisputably consensual but nonetheless undesirable to the institution. This sanctioned conduct includes premarital sex, commercial sex, “kinky” sex, sex with colleagues, and sex on work or school premises. And case law and public accounts suggest those punished for at least some of these offenses disproportionately include women, girls, and queer people, some of whom have filed sex discrimination lawsuits.

This Article argues that both litigants and critics would benefit from situating these modes of punishment within the broader regime of gendered sexual regulation by workplaces and schools. For litigants, that context may open new doctrinal pathways to challenge sanctions for consensual sex under sex discrimination laws. It illuminates, for example, that the reasons defendants give to defend the punishments they levy—essentially, that they object to plaintiffs’ conduct, in putative contrast to their protected characteristics—are sometimes themselves discriminatory. And for critics of institutional sexual regulation, consideration of these forms of punishment would serve a clarifying and corrective function, promoting a more accurate vision of gendered power and highlighting nuance in the relationship between sex equality and punishment.

This Article frames the problem of capital taxation as a dilemma of the middle of history. At the “beginning of history”—before any wealth inequality has emerged and before individuals have made any saving choices—the much-cited Atkinson-Stiglitz theorem teaches that the optimal capital tax is zero. At the “end of history”—after individuals have made all of their saving choices—the optimal capital tax is generally agreed to be 100%, since a capital tax today cannot distort decisions made in the past. Neither result tells us how to proceed in the “middle of history”—after significant wealth inequality has emerged but while the shadow of the future still looms large. Yet absent an imminent apocalypse, the “middle of history” is the temporal reality with which our tax policies must contend.

The central question for capital taxation in the middle of history is how governments today can respond to accumulated inequalities while credibly committing to future tax trajectories. This Article focuses on three factors—institutions, inequality, and ideas—that mediate the relationship between past and present policy and expectations of future policy. Exploring these three mediating factors in deep detail can enrich our positive understanding of capital taxation’s real-world effects while refining our normative views about optimal capital tax design. Economic reasoning proves useful to this inquiry, but the Article also emphasizes the importance of integrating perspectives from history, political science, sociology, and—not least—law into a holistic account of capital taxation and credible commitment.

The analytical payoffs from such an approach are far-reaching. For example, a middle-of-history perspective complicates the conventional wisdom regarding the relationship between capital taxation and investment incentives: Capital tax cuts—which are typically thought to incentivize investment—may have the reverse effect when they undermine public confidence in the political stability of a low-capital-tax regime. Beyond the implications for tax, a middle-of-history perspective can yield lessons for—and derive lessons from—fields ranging from criminal justice to intellectual property, which face credible commitment problems comparable to tax’s dilemma. The challenge of sustaining credible commitment when policymakers’ incentives are time inconsistent is not just a problem of capital taxation in the middle of history but a more general problem of law in the middle of history.

The American carceral state has grown exponentially over the last six decades, earning the United States a place of notoriety among the world’s leaders in incarceration. That unprecedented growth has been fueled by a cultural addiction to carceral logic and its tools—police, prosecution, jails, prisons, and punishment—as a one-size-fits- all response to the myriad vectors of socioeconomic disadvantage that drive people into the jaws of the criminal legal system. The system operates in the shadow of endemic racial inequality, feeding on the conflated amalgam of race, criminality, and dangerousness. For those who experience the worst of what the system has to offer, it is little more than a purveyor of harm and injustice, deepening the inequality that characterizes America.

The modern public defender was born before the rise of mass incarceration and criminalization and has evolved ever since, from helpmate to the criminal system to a zealous advocate for the accused. The last major evolutionary turn transformed public defenders into a bulwark against America’s penal impulses, defending people against the state while working holistically to address the range of legal and social needs that drive criminal legal system involvement. Recent years have witnessed a growing willingness to grapple with abolition as a strategy and vision, and with it an increasing recognition that being a bulwark—while an essential feature of public defense—is simply not enough to upend the status quo. In this Article, I contend that public defense can and should embrace an abolitionist ethic. I do so because I believe that an abolitionist ethic orients the work of public defenders more pointedly at the interlocking structural causes that lead people into the clutches of the criminal system, and it directs sustained energy at its oppressive nature, ultimately benefitting the people and the communities that public defenders serve.

What does an abolitionist ethic mean for a public defender? Fundamentally, it is a merger of retail-scale zealous criminal defense with wholesale structural change aimed at dismantling the criminal system. Beyond that, it means building a world in which police, jails, and prisons are obsolete. And it employs frameworks and advocacy tools that are accessible to public defense. A public defender’s abolitionist ethic combines a racial justice lens informed by Critical Race Theory to understand the forces that animate the criminal system; zealous holistic defense of individuals infused with the spirit of resistance lawyering; movement lawyering to support social justice advocacy aimed at reducing the size, scope, and scale of the system on the way to dismantling it; and organized efforts to render the carceral state dispensable.

Shifting the paradigm of public defense and the work of public defenders is no easy task. Indeed, it is laden with challenges. Inadequate funding, the skepticism that travels with abolition, the sheer difficulty of criminal defense work, and the seemingly intractable nature of the criminal system can make the turn to an abolitionist ethic seem like a fruitless pursuit. For the public defender, those challenges cannot be the end of the story. The lessons that flow from the centuries-long struggle for racial justice, where abolition was born, teach us that—as organizer and activist Mariame Kaba says—“hope is a discipline.” By nature, public defense work rests on that discipline. Defenders fight against long odds in an unforgiving system. They do so for a host of reasons, among them the hope that what they do will make a difference in the broader fight for the dignity and humanity of those they represent. Defenders must draw on that same sensibility in pursuit of the world that those whom they defend—and all of us—deserve.

A coming wave of general-purpose technologies, including artificial intelligence (“AI”), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms’ ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but actions discernible. An AI’s “intentions”—its programmed objective functions—are easily discernible, but its actions or processing steps are a black box. Third, the near-infinite scalability of the technologies in the coming wave will likely result in extreme market concentration, with a few megafirms dominating. Finally, AI and related productive systems will be able to avoid traditional prohibitions on both collusion and exclusion, with the consequence that antitrust law’s core prohibitions will become ineffective. The cumulative effect of these tendencies of the coming wave likely will be to retire the economic order based on mandated competition. As in past cases of natural monopoly, some form of regulation will probably replace antitrust, but the forms of regulation are likely to look quite different. Rather than attempting to set a regulated firm’s prices by determining its costs and revenues, the regulatory future is more likely to involve direct regulation of an AI’s objective functions, for example by directing the AI to maximize social welfare and allocate the surplus created among different stakeholders of the firm.

Family law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life.

Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined.

This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth.

Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time.

Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent family with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental respon- sibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental rela- tionship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition.

First Amendment law is heavily influenced by a familiar set of policy considerations. Courts often defend their First Amendment rulings by referencing speech’s place within a “marketplace of ideas.” They consider whether speech facilitates self- governance or furthers society’s search for truth. They weigh the relative value of certain types of speech. And so on.

The Supreme Court has used these policy arguments to resolve and craft rules for many free speech dilemmas. But in some situations, existing policy arguments have generated rules and rulings that are incoherent, ineffective, or insufficient to address the underlying free speech problem. In this Article, we propose a new policy approach to aid courts in these situations. Specifically, we argue that in addition to traditional policy arguments, courts could and should use constitutive rhetorical theory when addressing and resolving today’s novel free speech dilemmas. Constitutive rhetorical theory views language as a process of meaning-making and culture building. It does not treat language only as a tool for persuasion or communication but instead emphasizes the ways language assigns value, creates communities, forges shared identities, and mediates human experiences. In this Article, we suggest that courts and legislatures should use constitutive rhetorical theory to supplement their traditional policy considerations. If judges take seriously the idea that language creates, rather than simply communicates, they might choose to restrict or protect speech not only because of its message or persuasive effects but also because of its constitutive, creative potential.

Our argument proceeds in four parts. In Part I, we review existing First Amendment policy arguments and describe their rhetorical underpinnings. We then present constitutive rhetorical theory as an alternative approach. In Part II, we discuss several contexts where the Court has hinted at, though not explicitly adopted, a constitutive rhetorical approach. In Part III, we apply a constitutive rhetorical lens to three First Amendment problems—hate speech, fighting words, and nonconsensual pornography—to show how the constitutive model might clarify or improve the law in those areas. In Part IV, we discuss the implications and limitations of our argument.

For over two hundred years of Supreme Court doctrine, judges and scholars have tried to figure out how the Court’s rulings impact ordinary citizens. Yet the answers often seem to depend on whose opinion or even which press releases you read. How can we actually measure the consequences of constitutional decisions?

This Article provides a new methodological inroad to this thicket—one which triangulates a nationwide field experiment, a longitudinal public opinion survey, and litigation-outcome analysis. We do so while focusing on a recent set of developments at the intersection of religious freedom and anti-discrimination law that transpired in Fulton v. City of Philadelphia (2021).

We find that Supreme Court decisions can have substantial behavioral and legal effects beyond a seemingly narrow holding. In Fulton, the Court avoided deciding the equality-religion conflict at the heart of the case for a fact-specific decision that should have been easy to circumvent. Yet our results suggest that the Court’s audience focused on the bottom-line message of the decision rather than the holding. Across the nation, foster care agencies became less responsive to same-sex couples. The public became more supportive of religious service refusals. And courts and litigants resolved all open disputes between equality-seeking governments and refusing religious agencies in favor of the agencies.

Our findings contribute to the development of an empirical approach to constitutional doctrine. Constitutional questions often require determining whether the harm to, or burden on, an individual or group is justified by a compelling state interest— and whether the means are narrowly tailored to that end. These tests often hinge on evidence, yet the Court rarely offers parties guidelines for substantiating their interests at the right level of precision. Our work provides both data and empirical tools that inform the application of this test in the realm of free exercise doctrine, equality law, and beyond.

Nuisance is once again a hot topic in legal practice and scholarship. Public nuisance law is at the center of efforts to hold product manufacturers, energy companies, and internet platforms liable for billions in losses. Scholars have in turn offered competing accounts of the legitimacy and scope of this form of liability. Meanwhile, private nuisance has been the subject of renewed academic attention, including the issuance of new Restatement provisions, that aim to make sense of its distinctive features. Unfortunately, to date, these two lines of inquiry have mostly been pursued in isolation, a pattern that reflects the prevailing wisdom (famously articulated by William Prosser and others) that the two nuisances share nothing beyond a common name. To the contrary, this Article maintains that the key to practical and theoretical progress in this complex area of law is to appreciate that the two nuisances are variants of the same general concept. As variants, they do indeed differ: a private nuisance is a wrong involving the violation of another’s right to use and enjoy their property, whereas public nuisance in the first instance does not turn on the violation of private property rights. And yet both nuisances involve wrongful interferences with others’ access to, or use of, physical spaces or resources. By attending to and appreciating this common core, lawyers, judges, and scholars will be better positioned to develop nuisance law in a consistent and principled manner.

We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures “make” statutes while judges “interpret” them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between “making” and “interpreting” by embracing a type of legislation that remains overlooked and little understood: “expository” legislation—enactments that specifically interpreted or construed previous enactments.

In the most exhaustive historical study of the subject to date, this Article—the first in a series of Articles—unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels—the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century.

We introduce generative interpretation, a new approach to estimating contractual
meaning using large language models. As AI triumphalism is the order of the day,
we proceed by way of grounded case studies, each illustrating the capabilities of these
novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the
actual agreements that they adjudicated, we show that AI models can help factfinders
ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties’
agreements. We also illustrate how models can calculate the probative value of
individual pieces of extrinsic evidence.

After offering best practices for the use of these models given their limitations, we
consider their implications for judicial practice and contract theory. Using large
language models permits courts to estimate what the parties intended cheaply and
accurately, and as such generative interpretation unsettles the current interpretative
stalemate. Their use responds to efficiency-minded textualists and justice-oriented
contextualists, who argue about whether parties will prefer cost and certainty or
accuracy and fairness. Parties—and courts—would prefer a middle path, in which
adjudicators strive to predict what the contract really meant, admitting just enough
context to approximate reality while avoiding unguided and biased assimilation of
evidence. As generative interpretation offers this possibility, we argue it can become
the new workhorse of contractual interpretation.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows that Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship.

The most common form of vicarious liability subjects an employer (or principal) to liability for the torts an employee (agent) commits within the scope of employment. Under the motive test, an employee’s tortious misconduct is outside the scope of employment when wholly motivated by personal reasons—a rule that almost invariably prevents the victims of sexual assaults from recovering against the employer, regardless of whether the employment relationship created the conditions that enabled the employee’s wrongdoing. A few alternative approaches have reformulated vicarious liability to overcome the limitations of the motive test, which is based on agency law, but each one has largely foundered. The motive test rules the land.

Neither courts nor commentators have adequately considered whether vicarious liability can be reformulated in terms of basic tort doctrine independently of agency law. As a matter of established tort principles, the scope of vicarious liability is limited to the injuries caused by a tortious risk—one which the employment relationship foreseeably created. The tort formulation recognizes that the employment relationship creates a foreseeable risk that employees will be careless or overzealous and can commit torts while motivated to serve the employer, even if the employer did not authorize the tortious misconduct. When an employee’s unauthorized tortious behavior is motivated solely by personal reasons, it would still be foreseeable and within the employer’s scope of vicarious liability if the employment relationship elevated the foreseeable risk of such misconduct over the background level of risk that exists outside of the workplace. Sexual assaults can accordingly be foreseeable within certain types of employment settings, subjecting the employer to vicarious liability as a matter of basic tort doctrine.

The problem of sexual assaults in the workplace shows why the tort formulation
of vicarious liability relies on a more realistic account of employee behavior as
compared to its agency counterpart, which cannot persuasively explain why vicarious
liability applies to any form of employee behavior the employer did not authorize.
Vicarious liability is best formulated as a doctrine of tort law, not as a component of
agency law with its question-begging treatment of motive in the workplace.

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach, interbranch agreement, and interparty consensus. Legal-culturally, it has in places evinced a decline in legal rationality. Although these developments do not rival the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in times of conflict, and reflects on what comes next in the new global conflict, and how best to shape it.

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues policy directives, and the tenured bureaucracy of civil servants below him follow them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power fear the growth of an imperial presidency, held in check by an impartial bureaucracy.

Federal sector labor rights, which play an increasingly central role in structuring the modern executive branch, complicate each of these critiques. Under federal law, civil servants have the right to enter into binding contracts with administrative agencies governing the conditions of their employment. These agreements restrain and reshape the President’s power to manage the federal bureaucracy and impact nearly every area of executive branch policymaking, from how administrative law judges decide cases to how immigration agents and prison guards enforce federal law. Bureaucratic power arrangements are neither imposed from above by an “imperial” presidency nor subverted from below by an “unaccountable” bureaucracy. Rather, the President and the civil service bargain over the contours of executive authority and litigate their disputes before arbitrators and courts. Bargaining thus encourages a form of government-wide civil servant “resistance” that is legalistic rather than lawless, and highly structured and transparent rather than opaque and inchoate.

Despite the increasingly intense judicial and scholarly battles over the administrative state and its legitimacy, civil servant labor rights have gone largely unnoticed and unstudied. This Article shows for the first time how these labor rights restructure and legitimize the modern executive branch. First, using a novel dataset of almost 1,000 contract disputes spanning forty years, as well as in-depth case studies of multiple agencies, it documents the myriad ways in which collective bargaining reshapes bureaucratic relationships within the executive branch. Second, this Article draws on primary source material and academic literature to illuminate the history and theoretical foundations of bargaining as a basis for bureaucratic government. What emerges from this history is a picture of modern bureaucracy that is more mutualistic, legally ordered, and politically responsive than modern observers appreciate.

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, rank, and seniority—and discuss its normative implications. On the one hand, job stability may encourage investment in training and expertise by agencies and officers alike; it may also attract some high-quality candidates, including candidates from underrepresented backgrounds, to the profession. On the other hand, low labor mobility can foster sclerosis in police departments, entrenching old ways of policing. Limited outside options may lead officers to stay in positions that suit them poorly, decreasing morale and productivity and potentially contributing to the scale of policing harms. In turn, the lack of labor mobility makes it all the more important to police officers to retain the jobs they have. This encourages them to insist on extensive labor protections and to enforce norms like the “blue wall of silence,” which exacerbate the problem of police misconduct. We suggest reforms designed to confer the advantages of labor mobility while ameliorating its costs.

Although legal scholars have over the years developed an increasingly sophisticated account of policing in the largest cities, they have largely overlooked the thousands of small departments that serve rural areas and small towns. As this Article makes clear, small departments are hardly immune from the various problems that plague modern policing. But their sheer number—and relative obscurity—has made it difficult to get a handle on the magnitude of the difficulties they present, or the ways in which familiar reform proposals might need to look different in America’s small towns.

This Article begins to fill this gap. It does so by blending together empirical analysis of various dimensions of small-agency policing, with in-depth case studies that add much-needed texture to the patterns that the data reveal. It argues that the problems of small-town and rural policing differ in important ways from those that plague big-city police, and that there are predictable patterns that explain when and why small agencies are likely to go astray. In particular, it shows that small agencies are susceptible to two types of systemic failures—those that reflect the inherent limitations of small-town political processes and those that are driven by the capacity constraints that some small governments face. It then draws on the data and case studies to provide a preliminary sense of how prevalent these problems are likely to be.

This Article concludes with the policy implications that follow from this richer and more nuanced account of small-town and rural police. It begins with the oft- made suggestion that small agencies be made to “consolidate” with one another or simply dissolve, and it explains why consolidation is not only highly unlikely, but also potentially counter-productive. It argues that states should instead pursue two parallel sets of reforms, the first aimed at equalizing the dramatic disparities in police funding across municipalities, and the second focused on a set of regulatory measures designed to address specific small agency harms.

Today’s Supreme Court is committed to originalism—the idea that the Constitution’s meaning is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors—Presidents, Congresses, or states. Call this method “living traditionalism”: “traditionalist” because it looks to political traditions, and “living” because the traditions postdate ratification. The method is ubiquitous but undertheorized, in part because its distinctness from “liquidation”—a variant of traditionalism that is indeed consistent with originalism, but that rarely drives any cases—has not been understood.

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which includes scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right later on). Yet the Court is at risk of doing that, making constitutional law turn on accidents of history: whatever practices happened to exist when the Court first addressed an issue. Finally, the Article proposes solutions to this predicament. Where the Court does not simply retreat from living traditionalism, it should write living-traditionalist rulings so that they expire when practices change, or else modify stare decisis to make these cases easier to overturn. These solutions would have to be paired with a resolve on the part of political actors to manifest any rejection of practice-based holdings in ways that courts could heed when the issue next arose in litigation. I review several “hard” and “soft” law means of doing so that the case law itself invests with constitutional significance. By these means, politics could shape sundry individual-rights and separation-of-powers doctrines. Absent such reforms, the Court’s application of living traditionalism will prove increasingly at odds with the democratic and other rationales for using the method at all.

The Supreme Court’s new religious liberty jurisprudence has dramatically expanded the circumstances in which religious objectors can claim exemption from general legislative enactments. Thus far, most of the claimants who’ve taken advantage of these doctrinal innovations have been conservative Christians seeking to avoid liberal policy initiatives (on matters like COVID-19 restrictions, vaccines, or LGBTQ inclusion). This emerging jurisprudence, as well as the rhetoric from legal and political elites regarding religious liberty, has generally acceded to the conflation of religiosity with conservatism. Liberal Jews challenge this conflation, as they offer an example of a religious community whose spiritual commitments tend to align with progressive rather than conservative politics.

Nominally, the new religious liberty doctrine should also provide protections to more liberal Jewish denominations that may seek relief from conservative statutory enactments, such as restrictive abortion laws following Dobbs. Assuming that this outcome is undesirable for conservative legal elites, the question for them becomes how to justify locking liberal Jews out while ensuring conservative Christians remain protected. To this end, jurists may find tempting a modern version of Christian supersessionism—the claimed entitlement of Christians to authoritatively declare who and what truly counts as Jewish. An ascendent form of antisemitism, increasingly mainstream in conservative political circles, insists that authentic Judaism is only that which is compatible with conservative Christian commitments, and so seeks to delegitimize liberal Jews (which is to say, most Jews) as not counting as actual Jews. Where this delegitimization is successful, seemingly blatant exclusion, marginalization, or hatred of (most) Jews can be removed from the ambit of religious liberty or antisemitism, since the targets are not recognized as religious Jews in the first place, and so cannot claim access to the expansive protections given to religious practitioners.

Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on
equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the possibility that courts sometimes award damages in contract disputes.

We argue that the default expectation of equitable relief is a widespread but malleable intuition—and that even a fragile legal intuition has practical consequences, individually and systemically. In a follow-up experiment, we show that subjects are more interested in the prospect of efficient breach when they know
that money damages are a possible remedy. This finding suggests that the mismatch between what people assume the law will do (specific performance) and what it actually does (money damages) sometimes encourages performance. We consider the potential for exploitation of this tendency. Finally, we offer some suggestions about how scholars of law and psychology should elicit folk beliefs about legal rules and remedies.

In 2020, the United States Supreme Court held that the Religious Freedom Restoration Act (RFRA) allows for claims for money damages against federal officials who substantially burden a person’s free exercise rights. As federal courts now grapple with these claims for damages, federal prison officials defending RFRA claims have turned to a trusty and time-honored defense: qualified immunity. In recent years, however, qualified immunity has come under increasing attack from judicial, scholarly, and popular sources, and the rationale underlying qualified immunity doctrine cannot withstand the kind of textual analysis that the Supreme Court used when announcing that the RFRA statute allowed for damages. Using the Supreme Court’s rationale, the text and doctrine of RFRA, and the long-articulated criticisms of qualified immunity, this Article argues that qualified immunity should not be an available defense to statutory claims asserted against federal prison officials.

In formulating this argument, the Article makes three primary contributions. First, it explains the importance of RFRA and its attendant religious rights protections to the more than 150,000 people confined by the federal government in the nation’s prisons. Second, it demonstrates how the defense of qualified immunity is incongruent to the statute’s text, history, and purpose. And, finally, it is the first article to analyze how the qualified immunity defense becomes unworkable when it is applied to the doctrine governing claims brought under the statute. Overall, by focusing on the narrow class of RFRA claims, the Article joins the chorus of commentators urging the federal courts to reconsider the knee-jerk application of qualified immunity to claims involving fundamental rights.

Longstanding U.S. Supreme Court precedents interpreting the Federal Arbitration Act (“FAA”) coupled with more recent corporate law decisions in Delaware have sparked concerns that public corporations may adopt arbitration provisions precluding shareholder lawsuits, particularly securities fraud class actions. In this Article, we show that these concerns are misplaced. It should be trivially easy for courts to conclude that an arbitration provision set forth in a corporate charter or bylaw is unenforceable against public company shareholders. Simply put, it is a matter of equity and the integral role that a state plays in chartering corporations.

Starting first with the corporate law of Delaware, where most public companies are incorporated, we explain that all corporate charter and bylaw provisions must be “twice tested”: they must be both legal and equitable to be enforceable. Applying the twice-tested framework, we then demonstrate that an arbitration provision precluding class actions would be inequitable because it would deny the vast majority of shareholders a remedy for violations of federal securities law, transfer wealth from smaller shareholders to the largest investors, insulate corporate managers and boards from accountability in a manner inconsistent with established state policy, and rupture the balance between federal and state regulation of public corporations.

Turning next to federal law, we demonstrate that Delaware’s ban on shareholder arbitration is not preempted, despite the Supreme Court’s expansive interpretation of the FAA. Here, our analysis starkly departs from prior scholarship. Rather than denying the contractual nature of a corporation’s governing documents, we embrace what the courts have repeatedly stated, that a corporation’s charter and bylaws are a binding contract between the corporation and its shareholders. However, we broaden the aperture to reveal another party to the corporate contract: the state that has chartered the corporation. This insight is critical with regard to interpretation of the FAA. The FAA applies only where there is an agreement to arbitrate, and there can be no such agreement where the chartering state has through its corporate law withheld its assent to arbitration. Thus, without state assent to shareholder arbitration, the essential precondition for application of the FAA is absent.

Observers fear that large corporations have amassed too much political power. The central fact that animates this concern is growing economic concentration—the rise in the market share of a small number of top firms. These firms are thought to use their enhanced economic power to capture the government and undermine democracy by lobbying. Many scholars and activists have urged the use of antitrust law to combat this threat, leading a “political antitrust” movement that advocates explicit incorporation of political considerations into antitrust enforcement. Political antitrust has sparked great debate not only in academic circles but also among policymakers.

But the debate has been largely data-free; there is little systematic evidence on whether increased economic concentration leads to democratic harms in established democracies. This Article seeks to fill that gap, bringing systematic data analysis to bear on the issue for the first time. We make three contributions. First, we create a comprehensive dataset on lobbying of the federal government, capturing nearly one million records over the past two decades. This data was drawn from the reports required by the Lobbying Disclosure Act as compiled by In Song Kim, to which we contributed by refining the coding, improving the matching between lobbying reports and industry and firm data, and adding new data. Second, we use our dataset to map lobbying patterns, focusing on the connection between economics
and politics. Third, we empirically test some postulates of political antitrust.

Our findings do not support the political antitrust movement’s central hypothesis that there is an association between economic concentration and the concentration of lobbying power. We do not find a strong relationship between economic concentration and the concentration of lobbying expenditure at the industry level. Nor do we find a significant difference between top firms’ and other firms’ allocation of additional revenues to lobbying. And we find no evidence that increasing economic concentration has appreciably restricted the ability of smaller players to seek political influence through lobbying. Ultimately, our findings show that the political antitrust movement’s claims are not empirically well-supported in the lobbying context. Our findings do not allay all concerns about transformation of economic power into political power, but they show that such transformation is complex and nuanced, and they counsel caution about reshaping antitrust law in the name of protecting democracy.

Criminal jurors in American courts typically deliver their judgments through “general verdicts,” which announce only their legal conclusions of “guilty” or “not guilty.” An alternative format, the “special verdict,” would require jurors to confirm their findings of fact regarding each element of the applicable law before reaching a conclusion. Courts have long rejected the use of special verdicts in criminal cases, under the presumption that general verdicts better protect criminal defendants and their right to trial by jury. However, this procedural status quo and its underlying rationale have never been empirically examined—until now.

This Article presents the results of an original nationwide survey on criminal verdict format that comprehensively measured the perspectives of over 1,600 stakeholders in the American legal system: state and federal judges, prosecutors, criminal defense attorneys, law professors, criminal science experts, civil litigators, and jury-eligible lay citizens—with former criminal defendants, victims, and jurors also included in the sample. The data reveal that criminal case law’s longstanding position and presumptions on verdict format are strikingly misaligned with the views and intuitions of current legal stakeholders. The majority of stakeholder groups—including criminal defense attorneys and jury-eligible lay citizens—on average supported the use of special criminal verdicts and expected this format to benefit criminal defendants and jurors in various ways. Furthermore, even the only two stakeholder groups that on average supported the legal status quo in favor of general criminal verdicts—prosecutors and judges—did not subscribe to its rationale that special verdicts will disadvantage criminal defendants.

The survey’s findings call the criminal legal system’s status quo on verdict format into question by debunking the conventional wisdom on which it is based. The Article also draws upon the data to consider why the norm in favor of general criminal verdicts nonetheless persists. It concludes by identifying next empirical steps to qualitatively understand and experimentally test the legal and psychological implications of verdict format in criminal cases.

Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ultimately deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to challenge the growth of the mass deportation regime effectively. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.

A large body of scholarship has debated the constitutionality of criminalizing travel to seek abortions—an issue with new salience in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade. Increasingly, however, antiabortion activists are turning to civil remedies as a supplement or alternative to criminal prosecution in cases involving out-of-state abortions. In contrast to criminal jurisdiction, where the outer bounds of states’ authority to punish out-of-state conduct is highly uncertain, the extraterritorial application of state law in civil litigation is a common, routine effect of choice-of-law analysis that is unlikely to raise constitutional difficulties. As a result, it is reasonable to expect that courts in antiabortion states may give broad geographical effect to abortion-restrictive laws and policies in at least some civil litigation. The resulting decisions are likely to create substantial friction between states, as abortion-permissive states try to protect their own citizens from liability even as the Full Faith and Credit Clause demands recognition of foreign-state judgments that courts may be reluctant to give. Similar clashes between state policies have, to be sure, happened before, and this Article explores their outcomes in the areas of divorce liberalization, cannabis legalization, and the enforceability of noncompete clauses. At the same time, abortion is likely to give rise to broader and more intractable conflicts than any other issue courts have confronted in the recent past. Although individual judges can reduce occasions for interstate friction by applying restrained, conduct-focused conflicts principles, the states’ fundamental disunity on the underlying issue of abortion may prove to be a problem that our choice-of-law
system is simply not equipped to resolve.

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.

This Article offers an in-depth analysis of the core legal issues concerning abortion related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and economic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and economic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states’ efforts to conscript them into a war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from warrants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care.

Neoliberalism and its accompanying austerity measures are shrinking local and
national government budgets, even though constituent needs remain pressing. In
desperation, public officials sometimes replenish public coffers through illicit
extraction from segments of the population poorly positioned to fight back. In
Detroit, for example, city officials inflated property tax assessments in violation of
the Michigan Constitution, leading to illegally inflated property taxes that many
homeowners could not afford to pay. Consequently, since 2009, one in three homes
have completed the property tax foreclosure process, the highest number of property
tax foreclosures in American history since the Great Depression. These
unlawful practices are not just occurring in Detroit, but also in other American
cities such as Ferguson, Philadelphia, and New Orleans.

Nevertheless, because corruption is universally defined as corrupt acts that are for
private or personal gain, there is currently no lexicon to describe illegal acts that
principally benefit the public treasury. I have coined the term “stategraft” to
describe this overlooked phenomenon: when state agents transfer property from
persons to the state in violation of the state’s own laws or basic human rights. To
establish stategraft as an essential theoretical framework, this Article elaborates its
definitional elements, demonstrates its conceptual value, and shows how it extends
existing discourses on corruption, state crime, and the predatory state.

In the battle for market supremacy, many firms are employing pricing software that
removes humans from price-setting decisions. These pricing algorithms fundamentally
change the dynamics of competition and have important implications for antitrust
law. The Sherman Act has two operative provisions. Section One condemns
agreements between firms that unreasonably restrain trade, such as price-fixing
agreements. Section Two prohibits monopolizing a relevant market through
anticompetitive conduct. Although a considerable body of excellent scholarship
explains how pricing algorithms can collude to fix prices in violation of Section
One, no scholarship discusses how algorithmic pricing could violate Section Two.

This Article addresses how pricing algorithms can facilitate illegal monopolization
through predatory pricing. Predatory pricing is a two-stage strategy. First, in the
predation phase, the predator charges a price below its costs, reckoning that its
rivals will exit the market because they cannot make profitable sales at that price.
The predator willingly incurs losses in order to force its rivals from the market.
Second, during the recoupment phase, after its rivals have exited the market, the
predator recovers its earlier losses by charging a monopoly price.

Theorists have asserted that predatory pricing claims are inherently implausible for
three reasons: (1) The predator must suffer disproportionately outsized losses
because it controls a larger share of the market; (2) predatory pricing threats are
not credible because a firm cannot believably commit to below-cost pricing; and
(3) firms that exited the market during the predation phase will simply reenter the
market during the recoupment phase. Based on these theoretical arguments, federal
judges consistently reject predatory pricing claims.

This Article explains how algorithmic pricing undermines all three theoretical arguments
claiming that predatory pricing is not a credible route to monopoly. First, a
predatory firm can use pricing algorithms to identify and target its rivals’ customers
for below-cost pricing, while continuing to charge their own existing customers a
profitable price, which minimizes the predator’s losses during the predation phase.
Second, algorithms can commit to price predation in ways humans cannot. Third,
pricing algorithms present several new avenues for recouping the losses associated
with predatory pricing, including algorithmic lock-in and price manipulation. In
short, even if one believed that predatory pricing was implausible in the past, the
proliferation of algorithmic pricing changes everything. Because pricing algorithms
invalidate the theories behind the current judicial skepticism, this evolving technology
requires federal courts to revisit the letter and spirit of antitrust law’s treatment
of predatory pricing claims.

This Article reinvigorates the case for abolishing strict liability in the criminal law.
Undertaking an intellectual history of mens rea policy, I spotlight two assumptions
that have fueled strict liability’s historic rise and current deprioritization in criminal
justice reform. One assumption is that eliminating culpable mental states from
criminal statutes is an effective means of reducing crime. The other assumption is
that adding culpable mental states to criminal statutes is an ineffective means of
lowering prison rates or promoting racial justice. This Article argues that these
assumptions are unsupported by available evidence and have no place in criminal
policymaking. Synthesizing decades of social science research, I first explain why
there is little reason to believe that strict liability promotes public safety. Next,
building upon the first-ever legal impact study of mens rea reform, I explain how
adding culpable mental states to criminal statutes could alter charging practices and
conviction rates. I then demonstrate the racial justice benefits of universal mens rea
standards by highlighting the concentration of strict liability in offenses disparately
enforced against people of color. Through this deeper understanding of mens rea
policy, the Article reveals the strength of the case against strict liability, and why
culpable mental state requirements are an important tool in the fight against mass
incarceration.

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it in Kansas v. Carr. According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context, and moral questions—“Are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decisionmaking, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the public interest and establish just, reasonable, and nondiscriminatory rates, charges, and practices. Throughout the Article, we challenge the longstanding narrative that utility regulators are engaged solely in a technical ratemaking exercise in setting utility rates. We argue that rate setting is and always has been social policy implemented within a legislative framework designed to promote the public interest. As we explain, when regulators and advocates expressly recognize this fact, it creates new opportunities for the regulatory system to achieve energy justice goals.

Through our reexamination of energy system governance, we evaluate new approaches to advance the public interest and set just and reasonable rates for energy consumers. These new approaches consider system benefits as well as costs, enhance universal and affordable access to utility service, alleviate income constraints on residential energy consumption as an economic development tool, increase equitable access to distributed energy resources such as energy efficiency upgrades and rooftop solar, and enhance procedural justice in ratemaking proceedings. We argue that over the long run, these pathways to a more just energy system align the interests of all system stakeholders by creating community wealth and collective prosperity.

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt. This Article proposes developing an international “war torts” regime, which would require states to pay for both lawful and unlawful acts in armed conflict that cause civilian harm. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing war torts and creating a route to a remedy would not only increase the likelihood that victims would receive compensation, it would also create much-needed incentives for states to mitigate or reduce civilian harms. Ultimately, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.

Policing agencies in the United States are engaging in mass collection of personal data, building a vast architecture of surveillance. License plate readers collect our location information. Mobile forensics data terminals suck in the contents of cell phones during traffic stops. CCTV maps our movements. Cheap storage means most of this is kept for long periods of time—sometimes into perpetuity. Artificial intelligence makes searching and mining the data a snap. For most of us whose data is collected, stored, and mined, there is no suspicion whatsoever of wrongdoing.

This growing network of surveillance is almost entirely unregulated. It is, in short, lawless. The Fourth Amendment touches almost none of it, either because what is captured occurs in public, and so is supposedly “knowingly exposed,” or because of the doctrine that shields information collected from third parties. It is unregulated by statutes because legislative bodies—when they even know about these surveillance systems—see little profit in taking on the police.

In the face of growing concern over such surveillance, this Article argues there is a constitutional solution sitting in plain view. In virtually every other instance in which personal information is collected by the government, courts require that a sound regulatory scheme be in place before information collection occurs. The rulings on the mandatory nature of regulation are remarkably similar, no matter under which clause of the Constitution collection is challenged.

This Article excavates this enormous body of precedent and applies it to the problem of government mass data collection. It argues that before the government can engage in such surveillance, there must be a regulatory scheme in place. And by changing the default rule from allowing police to collect absent legislative prohibition, to banning collection until there is legislative action, legislatures will be compelled to act (or there will be no surveillance). The Article defines what a minimally acceptable regulatory scheme for mass data collection must include and shows how it can be grounded in the Constitution.

The Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution
would permit multistate or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a foreign defendant, no such state may exist.

This issue potentially implicates a range of difficult and unsettled doctrinal, practical, conceptual, and theoretical questions—about both personal jurisdiction and class actions. This Article, however, proposes a clean solution that coheres with existing case law while retaining the vitality of class actions to provide meaningful remedies in cases where systemic wrongs have nationwide consequences. On this approach, specific jurisdiction would be proper in any case where (a) there is specific jurisdiction over the named plaintiff’s claim against the defendant; and (b) a class action led by that plaintiff would satisfy the certification requirements of Rule 23. This solution finds support not only in longstanding practice prior to Bristol-Myers, but in the more fundamental principles and policies underlying specific jurisdiction. The impact of these underlying values has been further bolstered by the Supreme Court’s most recent decision on personal jurisdiction—Ford Motor Co. v. Montana Eighth Judicial District Court. The upshot is that personal jurisdiction can exist over a class action even if the forum state would not have personal jurisdiction over a hypothetical separate action by an out-of-state individual who is an unnamed member of the class.

Moreover, this Article’s proposal makes it unnecessary for courts to confront thornier questions that would otherwise arise. Those questions include: the proper timing and procedural mechanism for objecting to personal jurisdiction with respect to the claims of unnamed class members; whether the jurisdictional constraints apply differently in federal courts and state courts; whether they apply differently to claims based on substantive federal law as opposed to state-law claims; the precise scope and justification for pendent personal jurisdiction; and the extent to which post-service events in federal court (such as class certification) are subject to the more expansive Fifth Amendment test for federal court personal jurisdiction. Under this Article’s solution, courts have a straightforward way to examine personal jurisdiction over class actions that does not hinge on or implicate these other issues.

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.

This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

As they carry out their decennial redistricting duties, those in power sometimes audaciously manipulate district lines to secure an electoral advantage. In other words, they gerrymander. Often, however, the existing map already gives those in power a significant edge, and they may see little need for an overhaul. For them, the name of the game during redistricting is continuity rather than change.

This Article introduces the concept of “gerrylaundering” to describe mapmakers’ efforts to lock in their favorable position by preserving key elements of the existing map. Gerrylaundering and gerrymandering both serve anti-competitive ends, but they do so through different means. Unlike gerrymandering, gerrylaundering requires no conspicuous cracking and packing of disfavored voters. Instead, it involves what this Article dubs locking and stocking: Mapmakers lock in prior district configurations to the extent possible and stock each new district with one incumbent. Based on a review of redistricting practices in all fifty states, this Article concludes that gerrylaundering is widespread and that self-serving mapmakers commonly combine gerrylaundering and gerrymandering techniques in varying proportions to achieve their preferred results.

Recognizing gerrylaundering as a phenomenon enriches existing redistricting discourse by spotlighting the insidious nature of continuity strategies: They serve to advantage those in power, yet, since they appear more restrained than radical redesigns, they come with a veneer of legitimacy. This Article concludes that the veneer is thin. As a legal matter, efforts to preserve district cores and protect incumbents do not stand on the same footing as efforts to comply with traditional geographic districting principles. As a policy matter, gerrylaundering is more likely to subvert core democratic values than to foster them. At least two significant takeaways follow: First, courts should approach continuity criteria skeptically both when they review challenges to redistricting plans and when they draw maps themselves. Second, and more broadly, minimizing the legacy of prior maps has the potential to inject healthy dynamism into our system of district-based representation.

Memes are the paradigm of a new, flourishing creativity. Not only are these captioned images one of the most pervasive and important forms of online creativity, but they also upend many of copyright law’s fundamental assumptions about creativity, commercialization, and distribution. Chief among these assumptions is that copying is harmful. Not only does this mismatch threaten meme culture and expose fundamental problems in copyright law and theory, but the mismatch is even more significant because memes are far from an exceptional case. Indeed, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. This is not to say that the traditional creativity that copyright has long sought to protect is dead. Far from it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be sensitive to the misfit between the new creativity and existing copyright law if we want the new creativity to continue to thrive.

Our deregulated campaign finance system has a race problem. In this Article, we apply innovations in statistical methods to the universe of campaign contributions for federal elections and analyze the racial distribution of money in American politics between 1980 and 2012. We find that white people are extremely over-represented among donors. This racial gap in campaign contributions is significantly greater than the gap between white and nonwhite voter participation and white and nonwhite officer holders. It is also relatively constant across time and elected offices.

This result is an important missing piece in the conversation about equity in political participation. We argue that the courts and Congress should take steps to address the racial gaps in campaign finance participation. The participation and representation problems that flow from racial inequality in deregulated campaign finance could inform claims under the Voting Rights Act (VRA), and politico-financial inequalities certainly bear on the normative problems that the statute intends to address. But the most politically viable way to address the campaign finance racial gap lies in adoption of public financing for political campaigns, which offer the promise of increasing the racial representation of campaign contributions. When racial representation in contributions is improved, improved equality in the distribution of resources and power in electoral and political systems should follow.

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable outcomes. But some judges—movement judges—bring more to the bench than just empathy, raging against systemic injustice with an understanding of its burdens on real human lives. This Article argues that we need movement judges to realize the abolitionist and democracy-affirming potential of the Constitution. Although the judiciary is often described as the “least democratic” of the three branches of government, it has the potential to be the most democratic. With movement judges, the judiciary can become a force for “We the People.”

The United States Internal Revenue Service (IRS) has repeatedly taken the position
that because the IRS does not ask taxpayers to identify their race or ethnicity on
submitted tax returns, IRS enforcement actions are not affected by taxpayers’ race
or ethnicity. This claim, which I call “colorblind tax enforcement,” has been made
by multiple IRS Commissioners serving in multiple administrations (both
Democratic and Republican). This claim has been made to members of Congress
and to members of the press.

In this Article, I refute the IRS position that racial bias cannot occur under current
IRS practices. I do so by identifying the conditions under which race and ethnicity
could determine tax enforcement outcomes under three separate models of racial
bias: racial animus, implicit bias, and transmitted bias. I then demonstrate how such
conditions can be present across seven distinct tax enforcement settings regardless
of whether the IRS asks about race or ethnicity. The IRS enforcement settings ana-
lyzed include summonses, civil penalty assessments, collection due process hear-
ings, innocent spouse relief, and Department of Justice (DOJ) referrals.

By establishing that every major enforcement function of the IRS remains vulner-
able to racial bias, this Article also challenges the IRS decision to omit race and
ethnicity from the collection and analysis of tax data. The absence of publicly avail-
able data on IRS enforcement activities by race should not be interpreted as evi-
dence that no racial disparities exist. I conclude by describing alternative
approaches to preventing racial bias in tax enforcement other than the current IRS
policy of purported colorblindness.

Structural constitutional law regulates the workings of government and supplies the
rules of the political game. Whether by design or by accident, these rules sometimes
tilt the playing field for or against certain political factions—not just episodically,
based on who holds power at a given moment, but systematically over time—in
terms of electoral outcomes or policy objectives. In these instances, structural con-
stitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases,
with a focus on biases affecting the major political parties. Recent years have wit-
nessed a revival of political conflict over the basic terms of the U.S. constitutional
order. We suggest that this phenomenon, and a large part of structural constitu-
tional conflict in general, is best explained by the interaction between partisan
polarization and structural bias, each of which can intensify the other. The Article
also offers a typology of structural biases, keyed to the contemporary United States
but potentially applicable to any system. To date, legal scholars have lagged social
scientists in investigating the efficiency, distributional, and political effects of gov-
ernance arrangements. The concept of structural bias, we aim to show, can help
bridge this disciplinary gap and thereby advance the study of constitutional design
and constitutional politics.

In the current model of federal-Indian relations, the United States claims a plenary
legislative power, as putative guardian, to regulate Indian tribes. Under this model,
tribes are essentially wards in a state of pupilage. But the federal-tribal relationship
was not always so. Originally, the federal government embraced, even promoted, a
more robust model of tribal sovereignty in which federal-Indian treatymaking and
diplomacy figured prominently. Through treaties, the United States and tribes nego-
tiated territorial boundaries, forged alliances, facilitated trade, and otherwise man-
aged their relations. In 1871, Congress attempted to put an end to federal-Indian
treatymaking by purporting to strip tribes of their status as legitimate treaty part-
ners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties.
Since that time, the 1871 Act and the plenary power-pupilage model it entrenched
have grown deep roots in federal Indian law and the policies of the United States.
Congress has aggrandized its role in tribal life at the expense of tribal sovereignty,
and the coordinate branches of the federal government have acquiesced in this
foundational shift.

The literature of federal Indian law has wrestled with the doctrine of plenary power,
contemplated the fate of the federal-tribal treaty relationship, and questioned the
constitutionality of the 1871 rider. This Article posits new arguments for the uncon-
stitutionality of the 1871 Act, uprooting the presumptions underlying the Act and
revitalizing the prospect of federal-Indian treatymaking. Two recent developments
provide an opportunity for such a transformation. In Zivotofsky v. Kerry, the
Supreme Court held that the President alone possesses the power to recognize for-
eign states and governments. While Zivotofsky was a landmark case for U.S. for-
eign relations law, its potential significance for federal Indian law has gone
underappreciated. Zivotofsky did not directly address the locus of power to recog-
nize tribal sovereignty to enter treaties, but it prompts the question and provides a
blueprint for arriving at an answer. Engaging that blueprint, this Article argues that
the President possesses the exclusive power to recognize tribes’ sovereign capacity
to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to
limit that power. In our view, the President can and should unilaterally reengage in
federal-Indian treatymaking, revitalizing treatymaking and reanimating the sover-
eignty model of federal-Indian relations.

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates.

The authors find that textual gerrymandering—suppressing some relevant texts while picking apart others, as well as cherry-picking context—has been pervasive. Texts and contexts are chosen to achieve particular results—without any law-based justification. Further, this Article shows that, by adopting the seemingly benign “we are all textualists now” position, liberals as well as conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) even as the Court rejects the production economy (the legislative authors’ meaning).

Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean John F. Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.” This Article concludes by affirming the republican nature of Madisonian constitutional design and situating the Court’s assault on republican evidence as part of a larger crisis posed by populist movements to republican democracies today.

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of their employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique the law’s interactive requirements. The process does not appear in the statute, but is an agency’s conceptualization of the mandate as an idealized exchange. By evaluating new empirical evidence relating to race, class, and gender outcomes against the meso-level theories underlying the mandate, this Article argues that the process disempowers employees through deficits of information, individuated design, and employers’ resistance to costs. Nonetheless, momentum to replicate the mandate to accommodate pregnancy and other workers’ needs continues apace.

As the workplace is increasingly deemed essential to societal well-being, this new frame reveals the law’s design flaws and unfulfilled potential. In response, this Article proposes reallocations of power so that the state may gather and publicize organizational precedent to facilitate structural analysis, regulation, and innovation at scale; legally recognize that antidiscrimination work, particularly dismantling ableist environments, is a collective endeavor; and expand the social insurance model for accommodations. Perhaps, then, the ADA’s original vision of institutional transformation may become possible.

In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.

In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.

With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting, but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.

What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order.

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals—an us versus them—where the judges vote in blocs aligned with the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this Article, we test whether en banc review is now or has ever been weaponized. We make use of an original data set—the most comprehensive one of which we are aware—that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule-of-law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018–2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc review. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule-of-law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean.

This Article is the first to frame a right of the public to benefit from our consumer big data. Drawing on insights from property theory, regulatory advances, and open innovation, the Article introduces a model that permits controlled access and the use of big data for public interest purposes while protecting against privacy harms, among others. I propose defining a right of access to pooled personal data for public purposes, with sensitive information safeguarded by a controlled-access procedure akin to that used by institutional review boards in medical research today. To encourage companies to voluntarily share data for public interest purposes, the Article also proposes regulatory sandboxes and safe harbors akin to those successfully deployed in other domains, such as antitrust, financial technology, and intellectual property law.