Volume 99, Number 3

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.

Synchronization (sync) licenses are required for works in which music is synchronized to video and generally have high transaction costs because they must be individually negotiated. Traditionally, sync licenses were obtained by sophisticated parties for movies, television, commercials, and the like. But digital platforms like TikTok have brought sync licenses from obscurity into the hands of every person with a smartphone.

This transformative innovation has created new issues for copyright law. First, user- generated content (UGC) created by individuals and shared on the internet via social media platforms or websites may require sync licenses that are cumbersome to negotiate and overinclusive. Private agreements between platforms like TikTok and record labels and publishers usually fill the gap, allowing most users to play music with their videos free from concern about copyright infringement. However, these licenses do not account for copyright’s fundamental balance between access and exclusivity because they are overinclusive: Some content on TikTok may be covered by the doctrine of fair use, in which case no license is required. Fair use is an affirmative defense to copyright infringement that permits the defendant to use the copyrighted work without paying the rightsholder.

Second, TikTok’s agreements with labels and publishers could be eroding fair use. The ex-post nature of fair use means that risk-averse parties, when confronted by a situation in which the viability of their claim is unclear, are likely to obtain a license not required by law. This in turn can narrow the scope of fair use because the existence of an active licensing market makes it less likely that a court will find a use is fair. Future parties then become less likely to rely on an increasingly dubious fair use defense. In the TikTok context, doctrine about fair use and sync is especially uncertain. The scant precedent in UGC fair use cases appears to be highly fact-dependent, there are few cases that specifically deal with sync rights, and none of those have decided fair use as applied to sync.

This Note proposes a blanket, compulsory license for noncommercial UGC sync as an imperfect solution to help correct the balance of copyright in the digital platform era. The compulsory license would return review of public copyright law back to Congress and courts and prevent private ordering from curtailing fair use. Further, valuable creativity would be protected because rightsholders would not be able to withhold permission for use of copyrighted material.

Sovereign immunity statutes set the boundaries of liability for tortious conduct by state government actors. Legislatures can shield state entities and agents from liability for a wide range of tortious conduct. They can even—as some states have—waive immunity to the extent of liability insurance coverage. These restrictive statutory immunity schemes can facilitate discretion and prevent the overdeterrence of helpful conduct. But by preventing state courts from hearing certain claims of tortious conduct, such schemes effectively leave injured plaintiffs in the lurch and future misconduct undeterred. This Note argues that legislatures should allow courts more leeway to set the standard of care for state government tortfeasors. Stripping courts of their capacity to adjudicate cases of garden-variety misconduct by government actors is misguided. By applying the “public duty doctrine”—a default rule that the government owes no general duty of care in tort to the public at large—courts can negotiate the interests that animate restrictive sovereign immunity statutes. This court-centered approach would fill gaps in civil damages liability under federal constitutional law that otherwise leave government negligence unremedied and undeterred. Moreover, it would let courts adapt the common law to define the scope of the government’s duties to the public.

Most-favored-nation (MFN) provisions have formed the center of a jurisdictional dispute that has plagued international arbitration for the past two decades. Since the Maffezini decision in 2000, holding that MFN clauses can be used to import jurisdictional provisions, the international arbitral system has seen a long succession of inconsistent and irreconcilable arbitral decisions, some following Maffezini’s approach and others rejecting it. The result is a jurisdictional crisis in international arbitration that has consumed opposing parties’ time and money, undermined the international arbitral system’s legitimacy, and called into question the very reasons for the system’s existence.

However, a glimmer of hope has emerged: A new variety of MFN clauses has begun to appear that explicitly specify that they do not apply to procedural issues. Despite their potential to solve one of international arbitration’s most intractable problems, these jurisdiction-limiting MFN clauses have largely escaped serious analysis. This Note fills this gap in scholarship by providing the first academic analysis focused exclusively on these new jurisdiction-limiting provisions, analyzing the trend towards the increased use of these provisions, the form the provisions take, their reception in arbitrated cases, and the implications that these provisions carry.