Constitutional Powers, Jurisprudence Theory
Historical Gloss, Madisonian Liquidation, and the Originalism Debate
The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework …
Civil Rights, Employment Law
Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law
In the summer of 2020, the Supreme Court decided the blockbuster case Bostock v. Clayton County, holding that Title VII prohibits employment discrimination on grounds of sexual orientation and gender identity. The opinion, authored by Justice Neil …
Education, Racial Legal Theory
Restoring Honor: Ending Racial Disparities in University Honor Systems
In student-led academic honor systems, students establish policies governing lying, cheating, or stealing (referred to as “academic misconduct”); adjudicate reports of academic misconduct among their peers; and determine appropriate sanctions..
Constitutional Law, International Law
Rejoining Treaties
Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal …
Criminal Law, State Law & Federalism
Statutory Federalism and Criminal Law
Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely …
Civil Procedure, Federal Courts
Colorado River Abstention: A Practical Reassessment
When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent …
Civil Procedure
Intervention
Ever since the late 1960s, many lower federal courts have interpreted the Federal Rules of Civil Procedure to give outsiders broad rights to become parties to pending lawsuits. Intervention of this sort affects the dynamics of a lot of cases, …
Constitutional Powers, International Law
Congressional Administration of Foreign Affairs
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a …
Antitrust, Corporate Law, Finance & Banking
The New Gatekeepers: Private Firms as Public Enforcers
The world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ …
Criminal Justice
Redefining the Relationship Between Stone and AEDPA
This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have …
Technology
A Right to a Human Decision
Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision makers. From welfare and employment to bail and other risk assessments, state actors increasingly lean on machine-learning tools …
Corporate Law
Myopic Consumer Law
People make mistakes with debt, partly because the chance to buy now and pay later tempts them to do things that are not in their long-term interest. Lenders sell credit products that exploit this vulnerability. In this Article, I argue that …
Legal History
Colonial Virginia: Incubator of Judicial Review
What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics …
Technology
Measuring Algorithmic Fairness
Algorithmic decision making is both increasingly common and increasingly controversial. Critics worry that algorithmic tools are not transparent, accountable, or fair. Assessing the fairness of these tools has been especially fraught as it requires …
Technology
Manipulating Opportunity
Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When …
Corporate Law
Designing Business Forms to Pursue Social Goals
The long-standing debate about the purpose and role of business firms has recently regained momentum. Business firms face growing pressure to pursue social goals and benefit corporation statutes proliferate across many U.S. states. This trend is …
Federal Courts, International Law
Transatlantic Perspectives on the Political Question Doctrine
On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) unanimously invalidated U.K. Prime Minister Boris Johnson’s attempt to suspend (or “prorogue”) Parliament. The UKSC’s decision, R (Miller) v. Prime Minister (Miller/Cherry), was a …
Local Government, State Law & Federalism
The Structures of Local Courts
Local courts are, by far, the most commonly used courts in our justice system. Cases filed in local courts outnumber those filed in federal court by a factor of over two hundred. Few litigants who receive local-court judgments appeal the matter …
Contracts, International Law
Substance-Targeted Choice-of-Law Clauses
Recent cases highlight two persistent problems in United States litigation: the frequency with which parties seek to validate an otherwise unenforceable provision through a choice-of-law clause, and the disparate results courts have reached in such …
Corporate Law
Defining Appraisal Fair Value
Appraisal is a statutory mechanism that entitles dissenting stockholders of Delaware merger targets to receive a judicially determined valuation of their shares. During a decade when Delaware courts significantly constrained other legal avenues of …
First Amendment
Weaponizing the First Amendment: An Equality Reading
This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is …
Second Amendment
Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process
Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of …