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The path to financial compensation for the wrongfully convicted can be complex and time-consuming. Exonerees often struggle to make ends meet and function in free society, let alone navigate serpentine processes while waiting years for the recovery they deserve. Securing the assistance of an attorney is often a critical step, but too few lawyers are willing to risk accepting these complicated cases on a contingency-fee basis—the only way that exoneree-clients can likely pay their lawyers without outside help.

Litigation finance—an important tool for increasing access to justice in tort cases—could help close this access to justice gap for exonerees. In a practice called client-directed financing, litigation funders have provided a relative handful of exonerees with cash advances, often leading to greater recoveries in the long run. After considering the benefits and burdens of client-directed financing, we argue that litigation funders ought to consider lawyer-directed financing as well. Through lawyer-directed financing, financiers provide funds directly to private lawyers (instead of to their clients), which mitigates the lawyers’ contingency-fee risk and thereby encourages more lawyers to represent exonerees. If more lawyers were to handle more exoneration compensation matters, the secondary benefits could be significant: securing more money for more exonerees, enhancing public safety, developing a more experienced bar, and increasing the likelihood that some police and prosecutors will alter their behavior towards future suspects and defendants.

For lawyer-directed financing to emerge, many states would have to make two changes to their laws: First, state supreme courts would need to interpret their attorney-client privilege laws to allow for necessary information to be shared with the financier without constituting waiver. Second, laws prohibiting champerty and sharing fees with non- lawyers would need to be removed. Even with those changes, we believe that ethics rules should properly constrain the financier’s ability to control the legal matter and that the risks presented by outside financing are outweighed by the gains in access to justice for the many exonerees who don’t presently have lawyers. For these reasons, we believe the expansion of litigation finance for exonerees merits serious consideration.

Well before the Supreme Court’s decision in Loper Bright, the Solicitor General laid the groundwork for treating the outcome of the case as irrelevant for immigration law. In recent cases, the Solicitor General has argued that 8 U.S.C. § 1103(a)(1) provides a freestanding basis for deference by the judiciary due to a phrase that the Attorney General’s views are “controlling.” This Essay shows that the Solicitor General’s argument is deeply flawed. Building on textual critiques, this Essay shows that for one hundred years Congress has considered how to manage multiple executive departments administering immigration laws. From 1924 until 1952, Congress did not preclude intrabranch disagreements, and in at least one case such disagreements were presented to the Supreme Court. In 1952, Congress acted to have the executive speak with one voice and placed that power with the Attorney General in § 1103(a)(1). Until recently, the Solicitor General recognized that § 1103(a)(1) was nothing more than a method for resolving intrabranch conflicts. The Solicitor General’s new effort to turn § 1103(a)(1) into a separate basis for judicial deference to agency views has no basis in the text or history of the provision. The Solicitor General’s argument should be abandoned before it leads to a new wave of circuit conflicts about deference in immigration cases in the wake of the Supreme Court’s decision this Term overturning Chevron.

This Essay expounds on the outsized role of private law in governing ownership of new technologies and data. As scholars lament gaps between law and technology, and the need for government regulation in these various spaces, private law has quietly intervened to essentially regulate key features related to ownership, control, and access. Whether such intervention is welcome, efficient, or effective probably depends on the context and is subject to debate. Nevertheless, this Essay provides an excellent illustration of the organic development of private ordering to occupy spaces left open by public law, and posits that the significance of this phenomenon, whether for better or worse, cannot be lost in the weeds.

More specifically, the way in which contract law and intellectual property law have coalesced to define and control data ownership is striking. As a threshold matter, it is property ownership that allocates control of and access to data resources and ultimately enables monetization and value in the marketplace. This control extends to both the public and private spheres, and the attendant implications are far reaching.

Building on my recent work, this Essay will provide three exemplar contexts in which ‘private law creep’ has occurred, especially with respect to trade secrecy—the area of intellectual property law most likely to govern data transactions. By scrutinizing implantable medical devices, facial recognition technology, and algorithmic models in the criminal justice system, one observation remains salient and pervasive: contracts rule. Despite the strong public interests that are implicated in these domains, none of them are regulated on a federal level. Instead, rights of access and ownership are governed by private law.

The controlling purpose of this piece is to identify and correct a snag in the way courts distinguish discrete modes of criminality: helping, doing, and trying. To that end, I analyze two representative cases: one from the New York Court of Appeals, the other from the California Supreme Court. Both cases fall into an avoidable linguistic trap which twists the way we think and talk about group criminality. In each, two persons are bent on committing murder, but neither intends to divide the labor up between two parties: the actual killer and the killer’s helper. Instead, both parties are trying to commit the murder by their own hand. My concern here is how we fix the parties’ responsibilities, whether or not we know which of the two delivered the coup mortel. In the New York case (People v. Dlugash), we do not know whose shots proved fatal; in the California case (People v. McCoy), we do. Both cases, undisturbed by precedent, labeled both shooters murderers, the theory being that each must be the killer, killer’s helper, or both.

It is my thesis that to hold as much makes only misleading sense. Courts commit this error by veering from the reality that helping gestures are by definition outside the elements of the crime being helped; anyone who fulfills an element of the crime is committing the crime, not helping it. Yet Dlugash and McCoy take the position that trying but failing to commit murder by one’s hand can, without more, somehow constitute helping someone else murder that same intended victim. My proposed fix is to elevate the function of elemental analysis in complicity, in part by reviving an esoteric English doctrine, “joint principality,” which holds that in some instances of group criminality, there is no helping; there is only doing (or trying to do). To absorb this teaching is to better understand not just the relationship between language and the world, but the stakes in mistaking attempted murder for murder. Precisely, because in no jurisdiction is attempted murder punished as severely as murder, differentiating between helping, doing, and trying involves making moral—not just semantical—judgments both about what has been done and what to do about it.

Social media has created an unregulated public health crisis. For a long time, social platforms have remained unchecked, mostly due to Section 230 of the Communications Decency Act, a controversial law which insulates online service providers from actions based on third party content. The general consensus was that suing these companies would “break the internet.” Recently, however, as empirical evidence piles up showing the negative effects of the platform, this dogma is coming under fire. Forty-one states and the District of Columbia have come together to sue Meta, and a large-scale MDL has made it past a motion to dismiss in the Northern District of California. This essay argues that traditional product liability law is the most viable framework for holding social media platforms accountable. Looking at function over form, Meta manufactures a product, which it meticulously designs and markets to consumers. Further, the essay argues that focusing on the platform’s use of A/B testing to tweak their addictive design will be imperative to the upcoming litigation. A/B tests can be used to demonstrate a platform’s knowledge of the harmful effects of its design choices. Further, internal results of A/B tests could provide proof of causation. Building on this knowledge, the article provides a roadmap for litigating future claims against social media companies.

Since our nation’s founding, the private sex lives of politicians have been a consistent topic of public concern. Sex scandals, such as those involving Alexander Hamilton, Bill Clinton, and Donald Trump, have consumed the focus of the public. With the advent of the internet and social media, details of a politician’s sex life often come accompanied by photo or video evidence. Outside of the election context, when someone shares an individual’s private explicit material without their consent, the leaker has committed the crime of “revenge porn.”

Recent high-profile incidents have raised the question of whether the crime of revenge porn can still be prosecuted when the disclosure of private explicit materials involves a political candidate. In the election context, unique First Amendment concerns about chilling political speech result in heightened speech protections. Before prosecuting a case, prosecutors must grapple with the question: Does the First Amendment protect revenge porn when it is used to influence an election? This Essay argues that the special First Amendment concerns about elections are diminished in the revenge porn context: The statutes are already tailored to address those concerns, and the state’s independent interest in enforcing revenge porn laws is still compelling. As such, it concludes that the First Amendment should not have extra force in a revenge porn case just because the disclosure occurred in the context of an election.

Federal courts have recently grappled with an issue that falls at the intersection of Article III standing and disability, and that presents critical questions about the future of litigation promoting societal change. The issue is whether a plaintiff with disabilities has standing to challenge the failure by a place of public accommodation to provide accessibility information on its website when the plaintiff lacks concrete plans to visit the establishment. The Supreme Court heard argument in a case presenting this question—Acheson Hotels v. Laufer—in October 2023, but two months later it ruled that the case must be dismissed as moot, for case-specific reasons. The Article III standing question therefore remains unresolved, to percolate in the lower courts and plausibly to return to the Supreme Court through another vehicle. The standing issue raises doctrinal quandaries because it reveals the fault line between two models of litigation: a “public- law” model that permits plaintiffs, often backed by interest groups, to use litigation to advance public aims; and a “private-right” model that treats as the default mode of litigation a suit by A against B in tort, property, or contract. This Essay unravels the doctrinal and conceptual threads of the standing issue raised in Acheson and similar cases, and it offers proposals for courts to resolve the issue in a way that would not broadly undermine public-law litigation.

The steady flow of social media cases to the Supreme Court reveals a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship.

To such profound questions, this Essay offers a comparatively modest contribution— what not to do. Always the lawyer’s instinct is toward analogy, considering what has come before and how it reveals what should come next. Almost invariably, that is the right choice. The law’s cautious evolution protects society from disruptive change. But almost is not always, and with social media, disruptive change is already upon us. Using social media laws from Texas and Florida as a case study, this Essay suggests that social media’s distinct features render it poorly suited to analysis by analogy and argues that courts should instead shift their attention toward crafting legal doctrines targeted to address social media’s unique ills.