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Bound Electors

In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,” the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular …

Self-Portrait in a Complex Mirror: Reflections on The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens

Immediately after his death last year, Justice John Paul Stevens received a number of moving eulogies, several by former law clerks published in the Harvard Law Review, along with a tribute from Chief Justice Roberts..

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..

Pandemics, Risks, and Remedies

The coronavirus (“COVID”) pandemic exposed America’s brittle reliance on incarceration as means of promoting justice and social welfare. For each criminal detention site, a single prisoner infection ultimately threatened the entire institutional …

Essentially Elective: The Law and Ideology of Restricting Abortion During the COVID-19 Pandemic

The COVID-19 pandemic has put on full display the physical and doctrinal isolation of abortion from health care more generally. In early 2020, several states proclaimed that abortions had to be stopped or delayed for lengthy or indefinitely.

Blackness as Fighting Words

Where I grew up, the wrong words could turn an innocent sparring match of playground taunts and after-school gibes into a full-out asphalt brawl. Naïve boys enacting popular tropes of Black hypermasculinity, we would often form a circle around the …

Foreword: Facebook Unbound?

Facebook’s Alternative Facts

Criminal-Justice Apps: A Modest Step Toward Democratizing the Criminal Process

Law Enforcement’s Pairing of Facial Recognition Technology with Body-Worn Cameras Escalates Privacy Concerns

Hacking the Right to Vote

Commuting to Mars: A Response to Professors Abraham and Rabin

The Future is Almost Here: Inaction is Actually Mistaken Action

Self-Policing: Dissemination and Adoption of Police Eyewitness Policies in Virginia

Paved in Good Intentions: The Venerable Aims and Unique Vulnerabilities of Purportedly Independent Committees

Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin

Letter to the Editor: Remembering Charlottesville 2017 and Engaging Black-Jewish Alliances

Foreword: Tinker at 50

The Great Unfulfilled Promise of Tinker

Fill in the Blank: Compelling Student Speech on Religion

Walking Out the Schoolhouse Gates

The Miseducation of Free Speech

Foreword

Rethinking the Heckler’s Veto After Charlottesville

Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests

Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal

When White Supremacists Invade a City

The Living Anti-Injunction Act

Underwrites, Overrides, and Recovered Precedents

Regulation and Deregulation: The Baseline Challenge

Antitrust’s Unconventional Politics

Agency Design and the Zero-Sum Argument

Common Law vs. Statutory Bases of Patent Exhaustion

Reorganizing Organizational Standing

Copyright Owners’ Putative Interests in Privacy, Reputation, and Control: A Reply to Goold

Presidents Lack the Authority to Abolish or Diminish National Monuments

The Rule of Recognition in Reconstruction: A Review of Secession on Trial: The Treason Prosecution of Jefferson Davis, By Cynthia Nicoletti

Act-Sampling Bias and the Shrouding of Repeat Offending

A Modest Proposal for Justice Scalia’s Seat

The Interaction of Exhaustion and the General Law: A Reply to Duffy and Hynes

Patent Exhaustion and Federalism: A Historical Note

One Last Word on the Blackstone Principle

Changing the Face of Urban America: Assessing the Low-Income Housing Tax Credit

Pragmatism and Principle: Intelligence Agencies and International Law

Discrimination is a Comparative Injustice: A Reply to Hellman

Data Privacy and Inmate Recidivism

Defending Two Concepts of Discrimination: A Reply to Simons

What’s Wrong with Sentencing Equality? Sentencing Legality: A Response to Professors Bierschbach & Bibas

RJR Nabisco and the Runaway Canon

Retooling the Amicus Machine

Crowdfunding and the Not-So-Safe SAFE

Bad Actors and the Evolution of Patent Law

Historically high levels of abusive patent enforcement fuel an ongoing debate on the need for legislative and judicial reforms designed to deter bad faith conduct by patent holders. To date, this debate has focused intently on the direct monetary …

At the Frontier of the Younger Doctrine: Reflections on Google v. Hood

Politicians in Robes: The Separation of Powers and the Problem of Judicial Legislation

The Corporation as Snitch: The New DOJ Guidelines on Prosecuting White Collar Crime

Response: The Metamorphosis of Corporate Criminal Prosecutions

A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood

Saving the IRS

Consciously Decoupling: A Response to Professors Barry, Hatfield, and Kominers

Noel Canning and Remedial Obligation Under the Constitution

Famigration (Fam-Imm): The Next Frontier in Immigration Law

Protecting Same-Sex Marriage and Religious Liberty

Unequal Treatment of Religious Exercises Under RFRA: Explaining the Outliers in the HHS Mandate Cases

Noel Canning v. NLRB – Enforcing Basic Constitutional Limits On Presidential Power

The Trouble With Dignity And Rights Of Recognition

United States v. Windsor And The Role Of State Law In Defining Rights Claims

Ten Things the 2012–13 Term Tells Us About the Roberts Court

Now We Are Six: The Emerging Roberts Court

Content Neutrality and Compelling Interests: The October 2010 Term

Wal-Mart, AT&T Mobility, and the Decline of the Deterrent Class Action

Cautious Contextualism: A Response to Nelson Tebbe’s Nonbelievers Article

Reading Arizona

The Scope of Trademark Law In the Age of The Brand Persona

Remaking Lawrence

Politics and Terrorism: What Happens When Money is Speech?

Out of Infancy: The Roberts Court at Seven

How Lax is Nevada Corporate Law? A Response to Professor Barzuza

Massive Hard Drives, General Warrants, and the Power of Magistrate Judges

Clear Rules—Not Necessarily Simple or Accessible Ones

McDonald’s Other Right

The Supreme Court, Original Habeas, and the Paradoxical Virtue of Obscurity

DNA Database Trawls and the Definition of a Search in Boroian v. Mueller

On Proportionality and Federalism: A Response to Professor Stinneford

Separating Retribution from Proportionality: A Response to Stinneford

Revisiting the Taxation of Punitive Damages

PPACA in Theory and Practice: The Perils of Parallelism

The Mandatory Core of Section 4 of the Federal Arbitration Act

Placebo Statutes?: Sarbanes-Oxley and Ethics Code Disclosures

The Immortality of Equitable Balancing

Does the Structure of the Franchise Tax Matter?

Good Intentions Matter

State Judicial Elections and the Limits of Calibrating Access to the Federal Courts

Schrödinger’s Cross: The Quantum Mechanics of the Establishment Clause

Of Punitive Damages, Tax Deductions, and Tax-Aware Juries: A Response to Polsky and Markel

Don’t Tilt the Playing Field: A Response to Polsky and Markel

Who’s In the Club?: A Response to Oliar and Sprigman

Does Equity Pass the Laugh Test?: A Response to Oliar and Sprigman

Custom, Comedy, and the Value of Dissent

Of Coase and Comics, or, The Comedy of Copyright

Pleasant Grove v. Summum: Losing the Battle to Win the War

The Impotence of Delaware’s Taxes: A Response to Barzuza’s Delaware’s Compensation

From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create

Tiered Originality and the Dualism of Copyright Incentives

Counterinsurgency, The War on Terror, And The Laws of War: A Response

The Constitutional Foundation for Fact Deference in National Security Cases

The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia

Good Scholarly Intentions Do Not Guarantee Good Policy

Accentuate the Positive: Are Good Intentions an Effective Way to Minimize Systemic Workplace Bias?

Thoughts on Treating Union Representation Processes as a Market in Need of Legally Required Disclosure of Information

Rent-to-Own Unionism?

The Market for Union Representation: An Information Deficit or Rational Behavior?

The Market for Union Services: Reframing the Debate

The Networked—Yet Still Hierarchical—Family

Rights and Realities

Parents as Hubs

Get in the Game or Get out of the Way: Fixing the Politics of Death

The Multifarious Politics of Capital Punishment: A Response to Smith

What’s Wrong with Democracy? A Critique of “The Supreme Court and the Politics of Death”

The Persistence of Boundaries: A Reply to Rosen-Zvi and Fisher

The Boundaries Are Dead, Long Live the Boundaries!

International Human Rights in American Courts

Sosa, Federal Question Jurisdiction, and Historical Fidelity

Sosa and Substantive Solutions to Jurisdictional Problems

Federal Suits and General Laws: A Comment on Judge Fletcher’s Reading of Sosa v. Alvarez-Machain

The Temporal Dimension of Voting Rights

What Kind of Right is “the Right to Vote”?

The Significance of Massachusetts v. EPA

Warming Up to Climate Change Litigation

Massachusetts v. EPA: The Inconvenient Truth About Precedent

The Lost Promise of Civil Rights

United States v. Goliath

Institutional Competence and Organizational Prosecutions

Deferred Prosecution Agreements: A View From the Trenches and a Proposal for Reform

Pleading Standards After Bell Atlantic Corp. v. Twombly

Rediscovering Dangerousness: The Expanded Scope of Reasonable Deadly Force After Scott v. Harris

Of Coerced Waiver, Government Leverage, and Corporate Loyalty: The Holder, Thompson, and McNulty Memos and Their Critics

Expanding Congressional Power in Gonzales v. Carhart

The Hurricane Katrina Insurance Claims

Compensating the Victims of Catastrophe: The Virginia Tech Victims Assistance Program

Deterrence, Retributivism, and the Law of Evidence

Criminal Law’s “Mediating Rules”: Balancing, Harmonization, or Accident?

The Perils of Evidentiary Manipulation

Purposes and Effects in Criminal Law

Some Reflections on Custom in the IP Universe

“For Profit Charity”: Not Quite Ready for Prime Time

Decoupling?

Why Custom Cannot Save Copyright’s Fair Use Defense

Unfinished Business: Racial Equality in American History