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2025

The Anti-Satellite Threat—and How States Can Respond

Madeline Babin, Isabel Gensler, Oona A. Hathaway

On February 5, 2022, Russia launched Cosmos 2553 into orbit. On December 5, 2024, the world learned that the satellite carried a dummy nuclear warhead, designed to test components for a nuclear-armed anti-satellite (ASAT) weapon. That satellite, if detonated in space, would have the potential to destroy the infrastructure on which much of modern life depends. Although the prospect of a nuclear-armed anti-satellite weapon is new, the threat to satellites is not. As satellite technologies have proliferated to facilitate civilian and military operations around the globe, so too have ASAT weapons. China, Russia, India, and the United States have all tested ASAT weapons, which can create millions of pieces of space debris in a realm where anything larger than one centimeter may damage spacecraft.

These new threats raise pressing questions that legal scholarship is only beginning to answer: Does the deployment of some or all ASAT weaponry violate international law? What lawful responses are available to states facing such threats? Do threats from weapons positioned in space meaningfully differ from those posed by ground-based systems? At what point may states lawfully invoke the right of self-defense and use force to counter these threats? This Essay aims to fill this gap. It begins by describing the novel threats posed by the rise of ASAT weaponry and outlining the legal framework governing spacefaring and hostilities. It then presents a framework to determine the lawful measures states can take to respond to ASAT threats and examines the threshold at which states may lawfully invoke their right of self-defense. The Essay urges caution in responding to novel ASAT technology, arguing that overreacting to space-based threats might trigger the very global catastrophe that states hope to avoid.

The Missing Labor Infrastructure of Effective Industrial Policy

Luis Faundez, Manisha Padi

The second Trump administration has begun a concerted effort to reorganize the labor force of the entire United States. As federal workers are fired and higher education workers face funding cuts, the government is leaning into the bipartisan trend of using tariffs and subsidies to create jobs in sectors that serve a public purpose. Called “industrial policy,” the intervention of the federal government in private markets has spiked in popularity over the past decade. Bucking a longstanding tradition of laissez-faire capitalism and free trade, the executive and Congress have shown a willingness to put a visible hand on the market by subsidizing some sectors and taxing others. These interventions can easily backfire, as economists have warned, due to mistakes in the selection of subsidized sectors, high costs from tariffs, and ultimately slowed growth. Less discussed is the key role played by workers, whose unwillingness or inability to mobilize as directed by industrial policy could have dire consequences.

This Essay describes the barriers that may prevent American workers from participating in modern industrial policy, thereby undermining the success of the economy as a whole. The United States is already facing a labor shortage and employment rates are high, meaning there is little excess capacity for workers to move into domestic manufacturing or other jobs subsidized by industrial policy. Markets for services and goods that support workers, such as healthcare, housing, and childcare, have major gaps that further decrease labor supply. Instead of filling these gaps, however, industrial policy has chosen to target more esoteric markets. Workers then choose not to participate in the labor force, making it even more difficult to achieve the aims of industrial policy.

To support this thesis, we introduce novel empirical analysis on a key example of labor infrastructure—childcare. We build the most comprehensive existing dataset of childcare facilities in California and use it to document that more than sixty-five percent of children live in cities with no childcare, labeled “deserts,” or in cities with an inadequate supply of childcare. Labor supply is lower in deserts and underserved cities, even when controlling for other city characteristics, suggesting that there may be scope for interventions to increase childcare availability and increase labor supply.

The Essay then lays out a policy agenda that would give industrial policy a better chance for success. The first sectors to target should be domestic industries that support labor productivity. These policies are the least likely to have unintended negative consequences and will enable the success of other reforms. Then, industrial policy can target missing labor markets already prioritized by the Biden and Trump administrations—manufacturing, construction, and new technologies. By prioritizing workers over artificial intelligence and other forms of non-human capital, industrial policy is more likely to create long-term value for the American economy.

From Impunity to Reparations

Ndjuoh MehChu

Current frameworks for compensating victims of police violence inadequately address collective healing and repair. Overlooked are those who suffer policing’s harmful effects without direct police contact, e.g., bystanders and family members of those directly impacted. Consider 17-year-old Darnella Frazier, who documented George Floyd’s murder by Minneapolis police and subsequently required her mother’s comfort to sleep through the resulting trauma. While strangers far and wide rallied to support her healing through GoFundMe donations, most indirect victims receive no such widespread support. Typically, bystanders traumatized by police violence must rely solely on their families and local communities—often the same race-class subjugated circles that experience policing’s worst excesses. This Essay proposes a new direction: when local governments breach Fourth Amendment guarantees, liability should include damages for communal harms, or what I call “reparative” damages.

Section 1983 was intended to be strong medicine for the enduring problem of state-enabled racialized violence in the United States. Reconstruction lawmakers recognized that such violence left entire communities under siege, so they responded with unbounded federal power to address these harms. As the 2020 uprisings spotlighted, police violence today similarly harms entire communities, particularly Black and Brown ones. Yet current remedial schemes fail to capture these broader harms. I propose that at the damages stage of a successful Fourth Amendment suit against cities under Section 1983, courts should aim to repair policing’s collective harms by considering five factors in awarding compensation: (1) the police department’s overall budget; (2) evidence of historically troubling or abusive departmental practices; (3) annual frequency of excessive force litigation against the department; (4) existence of any consent decrees governing the department; (5) if applicable, the department’s compliance with decree requirements. When a department demonstrates a troubling history, faces numerous constitutional claims, operates under consent decrees, and shows minimal reform progress, courts could reasonably conclude it inflicts systemic harm on the community it is supposed to serve, warranting reparative damages.

Rather than awarding damages to individual plaintiffs, courts would direct compensation to a community reparative fund—a hybrid model incorporating key features of both Victims Compensation Funds (VCF) and cy pres distributions. People harmed by police in that locality could thereafter apply to the program for compensation. Self-certification would enable anyone who could credibly establish that they were vicariously harmed by police to receive compensation. Embracing a dynamic approach to statutory interpretation, this approach aligns with Section 1983’s sweeping remedial vision and meets the equity demands of our time. And because the judiciary has played a principal role in enabling police violence by manufacturing stringent immunity doctrines and eroding the Fourth Amendment, enlisting courts to make collective amends for policing’s harms has stronger moral force than a legislative approach.

Less Is More: Issue Presumption in Mass Tort MDLs

Leo J. Soh, Jared M. Stehle

In mass tort multidistrict litigation (MDL), existing scaling-up devices have failed to generate significant efficiency gains. This essay suggests a novel device: issue presumption. Where courts possess the greater power to apply issue preclusion, courts may instead apply issue presumption to shift the burden of persuasion against the losing party in subsequent cases. By scaling up through this softer, more flexible approach, MDL courts can capture lost efficiency gains.

Strict Construction of Deportation Statutes After Loper Bright

Nancy Morawetz

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo calls on courts to apply a broad range of rules of statutory construction instead of engaging in a deferential inquiry about whether an agency’s views are reasonable. Courts of appeals face the question how to apply their new interpretative responsibilities in the absence of Chevron deference. This Essay argues that courts of appeals must now apply the long- standing rule of strict construction of deportation statutes, also known as the immigration rule of lenity, which provides that ambiguities in deportation statutes be resolved to limit the sanction of deportation. This Essay shows that the Court developed the rule of strict construction of deportation statutes as a substantive check against the harsh consequences of deportation statutes. It further shows that the Court treated it as a strong substantive rule that applied to ambiguous statutes, even in situations where the agency’s position found support in its contemporaneous interpretation of the statute. By 1966, the Solicitor General as well as majority and dissenting Justices treated the rule as settled, leaving only the question whether a particular statutory provision contained an ambiguity sufficient to trigger the rule in the case before the Court. This established rule of strict construction is supported by the same justifications as the criminal rule of lenity and is further supported by unique aspects of deportation statutes, which typically have no statute of limitations and may apply retroactively. While much remains to be seen about how courts will apply their interpretive powers in the wake of Loper Bright, the rule of strict construction of deportation statutes has the pedigree of a strong substantive rule that ought to be considered fully in determining the scope of deportation laws.

2024
Online Symposium

Revisiting Rucho‘s Dissent: Percolation and Federalization

Gerald S. Dickinson

It has been five years since the U.S. Supreme Court’s ruling in Rucho v. Common Cause closed the door on federal claims challenging partisan gerrymandering, declaring them nonjusticiable political questions. Scholarly literature, since then, has focused primarily on where the Court went wrong in abdicating its responsibility and, to a lesser extent, how the Court got Rucho right. However, an under-addressed feature of Rucho is what Justice Elena Kagan explicitly and implicitly stated in her dissent; that is, the role of judicial federalism before and after Rucho and the influence of state courts in developing partisan gerrymandering doctrine as a matter of state constitutional law.

Justice Kagan’s dissent explicitly reminded the majority that if the state courts were capable of crafting appropriate standards to address partisan gerrymandering, so too was the Court. The problem, of course, was that the number of state court rulings addressing partisan gerrymandering at the time were in short supply. Implicitly, Justice Kagan then suggested that the Court could and should have consulted, borrowed, and adopted the state versions of neutral and objective standards as a source to guide the Court towards crafting a workable federal version. She, however, failed to identify or reference prior instances when the Court looked to the state courts to educate federal constitutional law. This Essay draws attention to how Justice Kagan’s dissent should be understood as foundational support for both the process of percolation and practice of federalization.

The percolation of state constitutional doctrines on partisan gerrymandering offers the Court a rich source of doctrine that will clarify the neutral and objective principles necessary to effectively adjudicate such sensitive political questions in the future. As such, the Court will be positioned to federalize those state doctrines, if it chooses to do so, in order to inform, guide, and support the creation of a federal partisan gerrymandering jurisprudence.

State Constitutions, Fair Redistricting, and Republican Party Entrenchment

Robinson Woodward-Burns

Over the last fifty years, the Republican Party has gradually claimed a majority of state legislative seats and chambers. What explains this? Scholars point to Republican grassroots mobilization of conservative voters in the late-twentieth century. This Essay adds another explanation: Republicans win disproportionate state legislative seat shares by winning rural districts by narrow, efficient margins and by changing state legislative redistricting practices, sometimes by state constitutional amendment. This Essay recounts this history, noting how in the mid-twentieth century, rural-dominated state legislatures failed to mandate fair, regular reapportionment, prompting the Supreme Court in 1964 to force the states to reapportion their legislatures and entrench fair redistricting and voting rights provisions in their state constitutions. Reapportionment added conservative, suburban districts, expanding Republicans’ state legislative seat share in the 1970s, 1980s, and 1990s. With subsequent urban-rural polarization and realignment, Republicans began winning rural districts by narrow, efficient margins, while Democrats won urban districts by wide, inefficient margins, letting Republicans win a greater statewide legislative seat share than popular vote share. Insulated from the popular vote, especially in competitive states, Republican state legislators entrenched their seats by changing elections and redistricting practices, sometimes through state constitutional reform that weakened earlier voting rights and redistricting provisions.

Exoneration Finance

Kay L. Levine, Russell M. Gold

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.

Immigration Law After Loper Bright: The Meaning of 8 U.S.C. § 1103(A)(1)

Nancy Morawetz

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.

Private Law in Unregulated Spaces

Elizabeth A. Rowe

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.

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