Volume 94, Number 1

With Epilogue by Emmanuel Mauleon

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets— and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging with Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

In Bondi v. VanDerStok, the Supreme Court issued a consequential decision for statutory interpretation. Drawing on law-and-linguistics research, it infused new empiricism into the search for word meanings, introducing a method this Article labels “Linguistic Textualism.” It is incumbent upon the legal community to reckon with Linguistic Textualism, the Article asserts—because if VanDerStok is the future of statutory interpretation, we are in some trouble.

To make that argument, the Article first diagnoses the pathologies of Linguistic Textualism. It chronicles multiple artificial constraints that Linguistic Textualism imposes upon interpreters, including a striking tendency to erase the historical evolution of a statute. This can undermine interpretation of amended statutes, in particular, which now dominate the Court’s docket. Attempting to do better, the Article then develops a competing interpretation of the statute from VanDerStok. Through an increased attention to amendment history, the Article uncovers the untold story of the Gun Control Act of 1968. In so doing, it provides a vivid illustration of why courts should be attentive to the rich, layered nature of statutory law—and it gives a methodological template for how to accomplish that goal.

The result is a comparative interpretive project with numerous insights—both doctrinal and theoretical. It provides a new understanding of the GCA, a statute whose unresolved questions will shape the future of gun control in America. The Article reveals the shortcomings of Linguistic Textualism, an interpretive approach only increasing in prevalence. The Article develops new tools and strategies to better interpret amended statutes—including a proposed “dead-hand canon,” which can resolve the inconsistencies that amendments often produce. And the Article outlines a new principle for assessing interpretive methods—one that offers a useful baseline for interpretive debates. Through these many lessons, the Article aims to help transform VanDerStok into a productive moment for statutory interpretation.

The U.S. Supreme Court is experiencing a visual boom. In a break from its text-based tradition, the Court is increasingly incorporating images directly into its opinions. In the past fifteen years, pictures of prison dormitories, prayer circles, and stolen artwork have graced the pages of the U.S. Reports. Recently, the Court’s visual vocabulary has grown to include a 150-year-old political cartoon, fifty-nine license plate designs, and a series of gun diagrams alongside a gif. Even more, in just the last five years, visuals have started appearing more frequently in the main body of opinions rather than being relegated to appendices.

While this rise in “visual opinions” may seem inevitable in today’s visual age, it raises significant questions about the foundations of judicial authority and the nature of judicial reasoning. But while scholars have extensively analyzed visual advocacy by lawyers, the Court’s own embrace of visual rhetoric—and its implications for the Court and the institution of judicial decisionmaking—has received surprisingly little attention.

This Article explores the Court’s visual practices and their implications for judicial legitimacy. It makes three key contributions. First, drawing on a review of over 400 visual opinions, it provides the first account of the Court’s use of images from the Founding to the present. It finds that while the Court’s use of visuals has accelerated in recent years, its use of visual content finds deep and expansive roots in the nineteenth century. Second, it connects the Court’s visual practices to legitimacy theory, analyzing how visuals reshape the Court’s performance as a principled decisionmaker, impartial decider, and public servant. Visual content can enhance judicial reasoning by clarifying complex concepts and connecting abstract law to concrete reality. But it can also undermine core legitimacy values by compromising analytical rigor, embedding hidden biases, and transforming legal discourse into political performance.

Third, this Article advances a counterintuitive recommendation. If a picture is worth a thousand words, judges may need to write a thousand “more” words when they include pictures. Because visuals invite multiple interpretations and can overwhelm legal reasoning, courts should consider providing enhanced justification when they use images. Rather than letting visuals “speak for themselves,” judges must explicitly explain their relevance, anticipate competing interpretations, and directly confront visual counternarratives. Visual opinions require more explanation, not less.

Should linguistics inform textualism? When legal theories make claims about another discipline’s subject, that discipline is often illuminating: History impacts originalist debates, economics shapes “law and economics” analysis, and psychology imbues behavioral legal studies. Linguistic claims abound in textualist decisions and debates, but linguistics—the scientific study of human language—less often informs these. Now, critics question whether it should.

This Essay defends the relevance of the field of linguistics to the theory, practice, and critique of textualism. We offer examples, including the Supreme Court’s 2025 VanDerStok decision. Our argument implies neither that textualism is the correct interpretive theory nor that linguistics invariably bolsters it. Indeed, linguistics often challenges textualist assumptions and conclusions. The Essay’s claim is simply that for both textualists and their critics, considering—rather than eschewing—linguistics makes discussion more sophisticated and productive.

American constitutional development has long followed cycles of crisis and restoration, resisting linear narratives of progress. This pattern is especially evident in the interplay between Black protest movements and constitutional interpretation, where transformative possibilities emerge during periods of social rupture but are later constrained by institutional restoration. This Essay argues that W.E.B. Du Bois’s 1920 speculative fiction, The Comet, offers a framework for understanding these cyclical dynamics. The short story’s three-part structure—normalcy, rupture, and restoration—reveals how genuine equality surfaces during catastrophic disruption yet proves unsustainable once hierarchical “normalcy” returns. Using interdisciplinary analysis that combines legal theory, historical inquiry, and literary criticism, this Essay traces “comet cycles” within major Black protest movements from abolition to contemporary struggles. It demonstrates that literary imagination can illuminate constitutional dynamics that conventional doctrinal analysis cannot reach.

Specifically, this Essay argues that Black protest movements function both as catalysts of constitutional rupture and as interpreters of constitutional possibility during suspended moments of normalcy. Examining the abolitionist era, the Civil Rights movement, and present-day struggles through Du Bois’s framework highlights how social movements advance foundational promises of liberty and equality while revealing the fragility of constitutional gains. Even radical critiques of constitutional legitimacy often arise because movements have taken these promises seriously, exposing the inadequacy of conventional reform. This approach offers strategic insight for contemporary movements, clarifying when transformative possibilities emerge and how restoration dynamics undermine them. By centering Black lived experiences as integral to constitutional interpretation, this Essay reframes American constitutionalism as shaped fundamentally by those historically excluded from legal discourse, yet central to its most transformative moments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Despite an increasing number of critiques from many commentators—abolitionists, social scientists, and fiscal conservatives among them—mass incarceration remains an ongoing crisis. Dealing with the wreckage of carceral overreach requires not just changing policies about what gets criminalized and how offenses are punished prospectively, but also unwinding the long sentences imposed during the past half- century and still being served. Among the mechanisms for decarcerating are second look acts, which a growing number of jurisdictions have passed or are considering.

Often these resentencing tools depend heavily on decisionmakers’ exercise of discretion. In rare instances, however, that discretion is constrained. Comparing two recent New York sentencing reforms, the Domestic Violence Survivors Justice Act and the 2004–2009 Drug Law Reform Acts—the former highly discretionary and the latter with a strong presumption in favor of resentencing—this Article notes the relative success rates of each statutory scheme, finding the less discretionary regime apparently more decarceratory. Critically, the exercise of discretion imposes a significant dignitary harm on applicants, who are required to prove their believability and moral worthiness to judges deciding whether to free them. As epistemic justice theory shows, those who are incarcerated and disproportionately members of marginalized identity groups face untenably difficult odds of doing so, as they are systematically discredited. In the process of inviting a judge to exercise discretion in their favor, these petitioners are often disbelieved, and the knowledge system is subsequently impoverished by discounting of petitioners’ experiences. Thus, if resentencings are going to begin to decarcerate at the rates necessary to bring the United States into line with comparable countries, and do minimal damage in the process, resentencing reforms should be categorical or presumptive rather than discretionary.

Intellectual property law has long been the law of creation, not creators. The dominant utilitarian framework (and alternate ones like Lockean and personhood justifications) consider the creator almost exclusively by reference to their creative outputs. These innovation-first, output-maximization frameworks have increased concentration among IP firms and deepened inequality in how IP’s economic rewards are distributed among creators. The existing frameworks simply do not have much to say about such pressing issues as authorial bargaining power, wage and economic inequality in the marketplace for creative works, and intensifying corporate concentration amongst dominant IP holders. Furthermore, the existing frameworks’ almost single-minded focus on outputs no longer holds up in the age of artificial intelligence, which renders creative output instantaneous and near-infinite—while threatening to reshape the landscape of creative labor as we know it.

This Article advocates for a new, alternate framework, one that highlights how IP, much like labor law, has long acted as an allocator of rights in property and capital between individuals and firms. If IP, in practice, has acted like labor law in facilitating the transfer of work from creative laborers to dominant IP firms, then IP theory, too, should do more than focus singularly on outputs—it should also address these input-based, supply-side harms. To the extent that there have been strains of more creator-focused theories throughout the IP doctrine and literature, they have, variously, argued for creation as either a solitary act of genius or collective, democratic meaning-making. This Article purposefully uses the word “labor” in opposition to such romanticized notions: It argues instead for a framework of creation as wage labor, as both the means by which large IP firms extract their value and also, potentially, as capital’s most potent resisting force.

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.