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Where Nature’s Rights Go Wrong

There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights …

The Chimerical Concept of Original Public Meaning

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward …

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people …

How Litigation Imports Foreign Regulation

Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom’s National Health Services, to the Japanese Fair Trade Commission and the European …

Propertizing Fair Use

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. …

Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders

A decade on, legislatures are still coming to terms with the reach of Citizens United. In a novel push to cabin the effects of the opinion, legislatures have passed or are seeking to pass regulations that raise the specter of foreign intervention in …

What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the …

Interpreting Injunctions

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt. Despite the …

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity. In the years after Brown, Virginia …

Velvet Rope Discrimination

Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming …

The Law of Legislative Representation

Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, …

Trade Administration

At the core of public debates about trade policy making in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss …

Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine

Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in …

Interpretive Entrepreneurs

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official …

Invoking Criminal Equity’s Roots

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and …

Taxing Nudges

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often …

Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law

Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat …

The Corrective Justice Theory of Punishment

The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the …

Nondelegation and Criminal Law

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these …

Vagueness Attacks on Searches and Seizures

The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect …

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place. One of his parishioners, James Keating, had reported a theft of jewelry to the police. Later, Keating withdrew his …

Conflict Avoidance in Constitutional Law

Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as …

Settled Law

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial …

The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95

What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential …

Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general …

Secrecy Surrogates

Debates about how best to check executive branch abuses of secrecy focus on three sets of actors that have access to classified information and that traditionally have served—in one way or another—as our surrogates: congressional committees, federal …

Against Fiduciary Constitutionalism

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the …

College Athletics, Coercion, and the Establishment Clause: The Case of Clemson Football

Once a person turns eighteen and goes to college, do they immediately become less susceptible to the influences of those in power and their peers? The Supreme Court tells us that they do. While consistently willing to find that prayers at middle …

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 …

Conflicts of Precedent

The law of the circuit doctrine requires three-judge panels in the federal courts of appeals to give stare decisis effect to past decisions of the circuit, which can only be overruled by the circuit sitting en banc or by the U.S. Supreme Court. This …

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 …

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 …

Constitutionalism in Unexpected Places

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and …

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 …

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 …

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 …

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 …

Appointments Without Law

Genetic Privacy After Carpenter

A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding

Insincere Evidence

Standing to Challenge the Lost Cause

Garbage Pulls Under the Physical Trespass Test

The Myth of Common Law Crimes

Faux Contracts

Right to Be Educated or Right to Choose? School Choice and Its Impact on Education in North Carolina

“Standing” and Remedial Rights in Administrative Law

Combating Silence in the Profession

Confining Cases to Their Facts

Pardoning Contempt—Reconsidering the Criminal-Civil Divide

Why Didn’t the Common Law Follow the Flag?

The “Murder Scene Exception” – Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases

Corporate Disestablishment

Super PACs, Personal Data, and Campaign Finance Loopholes

Foreword

On Charlottesville

Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy

Procedural Justice, Legal Estrangement, and the Black People’s Grand Jury

Education as Property

Constitutional Interpretation Without Judges: Police Violence, Excessive Force, and Remaking the Fourth Amendment

White Privilege and White Disadvantage

The Government-Could-Not-Work Doctrine

Abstention at the Border

Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era

Congressional Control of Agency Expertise

Powers, But How Much Power? Game Theory and the Nondelegation Principle

Socioeconomic Status Discrimination

The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries

The Securities Law Implications of Financial Illiteracy

The Death Penalty as Incapacitation

The Missing Theory of Representation in Citizens United

A Tribute to Gordon Hylton

Subsidizing Segregation

The Writ-Of-Erasure Fallacy

Akin to Madmen: A Queer Critique of the Gay Rights Cases

The Presumption of Civil Innocence

Justice Souter’s Common Law

Federal Decentralization

Congress as Elephant

The Damagings Clauses

Legal Innocence and Federal Habeas

Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources

Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment

Textualism and Statutory Precedents

Deregulation and the Subprime Crisis

“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches

Should the Rules Committees Have an Amicus Role?

Fee-Shifting and Shareholder Litigation

“Don’t Elect Me”: Sheriffs and the Need for Reform in County Law Enforcement

Functionality Screens

Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments

Legislative Underwrites

A Cost-Benefit Analysis–Based Interpretation of Reciprocity Under Clean Air Act Section 115(c)

Exorcising the Clergy Privilege

Ambition and Fruition in Federal Criminal Law: A Case Study

Copyright Survives: Rethinking the Copyright-Contract Conflict

Constitutional Avoidance: The Single Subject Rule as an Interpretive Principle

Situational Severability

The Law Presidents Make

The Constitutional Right to Collateral Post-Conviction Review

Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment’s “Compelled” to Foreign Compulsion

The Untenable Case for Perpetual Dual-Class Stock

Entrenchment, Incrementalism, and Constitutional Collapse

Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause

Information Gaps and Shadow Banking

Religion Is Special Enough

Targeting Detached Corporate Intermediaries in the Terrorist Supply Chain: Dial 2339/13224 for Assistance?

A Tactical Fourth Amendment

The Economic Foundation of the Dormant Commerce Clause

Government Admissions and Federal Rule of Evidence 801(D)(2)

Sovereign Immunity and the Constitutional Text

Crackdowns

Jettisoning “Jurisdictional”: Asserting the Substantive Nature of Supremacy Clause Immunity

(Un)limiting Administrative Review: Wind River, Section 2401(A), and the Right to Challenge Federal Agencies

The Rationality of Rational Basis Review

The Positive Right to Marry

Legal Design for the “Good Man”

The New Antitrust Federalism

What’s Wrong With Sentencing Equality?

The Common Law of Contract and the Default Rule Project

Who’s In and Who’s Out: Congressional Power Over Individuals Under the Indian Commerce Clause

A Tribute to David Martin

Property’s Ceiling: State Courts and the Expansion of Takings Clause Property

A Theory of Copyright Authorship

Competitive Public Contracts

Mature Minors, Medical Choice, and the Constitutional Right to Martyrdom

Two Concepts of Discrimination

Executive Federalism Comes to America

The Failure of Liability in Modern Markets

Taking the Path Less Travelled: FOIA’s Impact on the Tension Between the D.C. Circuit and Vermont Yankee

The Fox Searchlight Signal: Why Fox Searchlight Marks the Beginning of the End for Preferential Treatment of Unpaid Internships at Nonprofits

Confronting and Adapting: Intelligence Agencies and International Law

“Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution

Judicial Capacity and Executive Power

“Spiritual But Not Religious”: Rethinking the Legal Definition of Religion

A Tribute to Antonin Scalia

Foreign Sovereigns as Friends of the Court

Constitutional Commitment to International Law Compliance?

Insider Trading in Commodities Markets

When Thirteen is (Still) Greater Than Fourteen: The Continued Expansive Scope of Congressional Authority Under the Thirteenth Amendment in a Post-City of Boerne v. Flores World

Waiver by Removal? An Analysis of State Sovereign Immunity

Statutory Domain and the Commercial Law of Intellectual Property

The Divorce Bargain: The Fathers’ Rights Movement and Family Inequalities

A Declaratory Theory of State Accountability

Benefits of Error in Criminal Justice

The Corporate Criminal as Scapegoat

Constructing Issue Classes

Commercial Speech, Commercial Use, and the Intellectual Property Quagmire

Confronting Big Data: Applying the Confrontation Clause to Government Data Collection

Patent Trolls and Preemption

Corporate Inversions and the Unbundling Of Regulatory Competition

Taming Title Loans

Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship

Taking Care of Federal Law

Reading Statutes in the Common Law Tradition

Aligning Campaign Finance Law

Reassessing the Doctrine of Judicial Estoppel: The Implications of the Judicial Integrity Rationale

Experimentation and Patent Validity: Restoring the Supreme Court’s Incandescent Lamp Patent Precedent

Jurisprudence and (Its) History

Jurisprudence, the Sociable Science

Time-Mindedness and Jurisprudence: A Commentary on Postema’s “Jurisprudence, the Sociable Science”

Jurisprudence, History, and the Institutional Quality of Law

Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey’s “Jurisprudence, History, and the Institutional Quality of Law”

The Path-Dependence of Legal Positivism

What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer’s “The Path-Dependence of Legal Positivism”

Toward Classical Legal Positivism

Redrawing the Dividing Lines Between Natural Law and Positivism(s): A Commentary on Priel’s “Toward Classical Legal Positivism”

Sovereignty and Subversion

A Commentary on Ristroph’s “Sovereignty and Subversion”

The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, …

Unintended Implications: A Commentary on Mikhail’s “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers”

Intellectual History as Constitutional Theory

Intellectual History and Constitutional Decision Making: A Commentary on Solum’s “Intellectual History as Constitutional Theory”

Marx, Law, Ideology, Legal Positivism

Philosophical Inquiry and Historical Practice: A Commentary on Leiter’s “Marx, Law, Ideology, Legal Positivism”

Contract’s Role in Relational Contract

The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute

Reasonable Expectations of Anonymity

Exiled from Education: Plyler v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions

Clean Air Post-Healthcare: The Federalism Limits of the Spending Power and the Future of Environmental Regulation

The Changing Face of the Supreme Court

The Case Against Federalizing Trade Secrecy

Contaminated Confessions Revisited

The Significance of Parental Domicile Under the Citizenship Clause

What Killed the Violence Against Women Act’s Civil Rights Remedy Before the Supreme Court Did?

The Legitimacy Of (Some) Federal Common Law

Patent Experimentalism

The Corporate Settlement Mill

Eliminating the Single-Entity Rule in Joint Infringement Cases: Liability for the Last Step

The New Local

Litigating the Financial Crisis

Another Look at Professor Rodell’s Goodbye to Law Reviews

A Rule of Lenity for National Security Surveillance Law

An Empirical Analysis of Sue-and-Settle in Environmental Litigation

A Tribute to Peter Low

Reforming (and Saving) the IRS by Respecting the Public’s Right to Know

Offsetting Benefits

Transactionalism Costs

Contracting for Good: How Benefit Corporations Empower Investors and Redefine Shareholder Value

Marrying Liberty and Equality: The New Jurisprudence of Gay Rights

Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information Age

States as Interest Groups in the Administrative Process

Surprisingly Punitive Damages

We the People: The Original Meaning of Popular Sovereignty

Immigration’s Family Values

Concurrent Damages

Glass Versus Steagall: The Fight over Federalism and American Banking

The Hidden Nature of Executive Retirement Pay

The Monitor-“Client” Relationship

A Market-Based Tool to Reduce Systematic Undervaluation of Collateral in Residential Mortgage Foreclosures

Shareholder Derivative Litigation and the Preclusion Problem

Market Efficiency after the Financial Crisis: It’s Still a Matter of Information Costs

Improving Rights

Common Sense about Common Decency: Promoting a New Standard for Guard-on-Inmate Sexual Abuse under the Eighth Amendment

One Hundred Years of Law Reviewed

Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters

Property, Exclusivity, and Jurisdiction

The Perverse Effects of Efficiency in Criminal Process

Appeals by Prevailing Parties after Camreta

The Imbecilic Executive

Standing for the Structural Constitution

Inferred Classifications

National Security Trials: A Judge’s Perspective

Malicious Prosecution Claims in Section 1983 Lawsuits

On Derivatives Markets and Social Welfare: A Theory of Empty Voting and Hidden Ownership

Tax in the Cathedral: Property Rules, Liability Rules, and Tax

Breaking Bankruptcy Priority: How Rent-Seeking Upends the Creditors’ Bargain

Forgotten But Not Lost: The Original Public Meaning of Section 4 of the Fourteenth Amendment

Policing Procedure Before Substance: Reforming Judicial Review of the Factual Predicates to Legislation

Against Religious Institutionalism

International Law and the Domestic Separation of Powers

Defending (Religious) Institutionalism

Economic Liberty and the Second-Order Rational Basis Test

Constitutional Privileging

A Constitutional Theory of Habeas Power

The Dark Side of Town: The Social Capital Revolution in Residential Property Law

The Principal Problem: Towards a More Limited Role for Fiduciary Law in the Nonprofit Sector

The New Education Malpractice Litigation

Originalism and the Other Desegregation Decision

Plenary Power Preemption

The Political Economy of Financial Rulemaking After Business Roundtable

The Liability Rule for Constitutional Torts

Prosecutorial Administration: Prosecutor Bias and the Department of Justice

Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs

Chevron and Constitutional Doubt

The Forgotten Foundations of Hart and Sachs

Persuasion Treaties

Clean Air Act Preemption of State Common Law: Greenhouse Gas Nuisance Claims After AEP v. Connecticut

Through the Antitrust Looking Glass: A New Vision of Delaware’s Takeover Defense Jurisprudence

A Tribute to Michael P. Dooley

A Tribute to Jeffrey O’Connell

Reconstructing Murdock v. Memphis

Taking Conscience Seriously

Free Speech, Hate Speech, and the Hostile Speech Environment

Making a Statement About Private Securities Litigation

Foreword: Academic Influence on the Court

Not the Power to Destroy: An Effects Theory of the Tax Power

Confronting Supreme Court Fact Finding

The Relational Contingency of Rights

Closing the Accountability Gap for Indian Tribes

Market Segmentation: The Rise of Nevada as a Liability-Free Jurisdiction

Enforcing (but not Defending) ‘Unconstitutional’ Laws

The Expectation Remedy Revisited

Examining the Conflict Between Municipal Receivership and Local Autonomy

Forum Domination: Religious Speech In Extremely Limited Public Fora

The Law of Nations as Constitutional Law

The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure

The Original Public Meaning Of The Fifth Amendment Applied To Substantive, Prosecutorial Use Of Pre-Miranda Warning Silence

Unconstitutional Conditions: The Irrelevance of Consent

Regulation, Unemployment, and Cost-Benefit Analysis

Atrocity, Entitlement, and Personhood

De Facto Supremacy: Supreme Court Control of State Commercial Law

Content Discrimination Revisited

Applying Constitutional Decision Rules Versus Invalidating Statutes In Toto: An Alternative To Rosenkranz’s Approach To Facial, As-Applied, And Overbreadth Adjudication

Law and Grace

Restoring the Original Meaning of the Speech or Debate Clause

Rethinking the Road to Gault: Limiting Social Control in the Juvenile Court, 1957-1972

The End of Campaign Finance Law as We Knew It

A Consumer Decision-Making Theory of Trademark Law

To Perform or Pay Damages

Response to Markovits and Schwartz

Rescuing International Investment Arbitration: Introducing Derivative Actions, Class Actions, and Compulsory Joinder

Laying Claim to the Constitution: The Promise of New Textualism

Privatizing International Law

The Constitutionality and Advisability of Recess Appointments of Article III Judges

Formalizing Local Constitutional Standards of Review and the Implications for Federalism

Modern Police Practices: Arizona v. Gant’s Illusory Restriction Of Vehicle Searches Incident To Arrest

Larry Walker: An Intellectual Pioneer

Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings

The Insignificance of Proxy Access

Second Opinions and Institutional Design

Balancing Comity with the Protection of Preclusion: The Scope of the Relitigation Exception to the Anti-Injunction Act

A Unified Approach to Extraterritoriality

Nonbelievers

Courts as Diplomats: Encouraging an International Patent Enforcement Treaty Through Extraterritorial Constructions of the Patent Act

Remote Deletion Technology, License Agreements, and the Distribution of Copyrighted Works

The Limits of Procedural Private Ordering

The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond

Rethinking Proportionality Under the Cruel and Unusual Punishments Clause

Disorder Certifying a Class: Misinterpretations of Rule 23(c)(1)(B) and a Proposed Alternative

Participatory Democracy and Free Speech

Participatory Democracy as the Central Value of American Free Speech Doctrine

Is Democracy a Sound Basis for a Free Speech Principle?

Democratic Participation and the Freedom of Speech: A Response to Post and Weinstein

Why Not Base Free Speech on Autonomy or Democracy?

Methodology in Free Speech Theory

Dissent, Democratic Participation, and First Amendment Methodology

The Trouble With “Public Discourse” as a Limitation on Free Speech Rights

In Defense of the Marketplace of Ideas / Search for Truth as a Theory of Free Speech Protection

Democracy, Freedom of Speech, and Feminist Theory: A Response to Post and Weinstein

Participatory Democracy as a Theory of Free Speech: A Reply

Participatory Democracy as the Basis of American Free Speech Doctrine: A Reply

Yoder Revisited: Why the Landmark Amish Schooling Case Could—And Should—Be Overturned

Prosecuting Federal Crimes in State Courts

Conscience, Speech, and Money

Toward Recognition of a Monetary Threshold in Campaign Finance Disclosure Law

The Untold Story of Rhode Island v. Innis: Justice Potter Stewart and the Development of Modern Self-Incrimination Doctrine

The Complexity of Jurisdictional Clarity

Original Habeas Redux

Will Employers Undermine Health Care Reform by Dumping Sick Employees?

Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

The National Convention Constitutional Amendment Method: Defects, Federalism Implications, and Reform

Multiple Gatekeepers

The Hidden Function of Takings Compensation

Taking “Due Account” of the APA’s Prejudicial Error Rule

Ex Ante Regulation of Computer Search and Seizure: A Reassessment

Taxing Punitive Damages

Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism

The Invisible Hand in Legal and Political Theory

The Future of Locke v. Davey

An Ideal Colleague

“Charge to the Class” in Honor of Lillian BeVier

The Foreign Commerce Clause

Jurisdiction-Stripping Reconsidered

District Court Opinions as Evidence of Influence: Green v. School Board and the Supreme Court’s Role in Local School Desegregation

The Costs of Religious Accommodation in Prisons

Countering the Majoritarian Difficulty

Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present

Prospects for Judicial Review of Arbitration Awards Under State Law

Equitable Balancing in the Age of Statutes

Author Autonomy and Atomism in Copyright Law

Record Viewership: Towards a Theoretical Framework for the Video Record

Warrantless Searches in a Digital World: Limiting the Private Search Exception for Computer Investigations

An Empirical Examination of Business Outsourcing Transactions

Unbundled Powers

Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency

Confusion and Coercion in Church Property Litigation

Placebo Ethics

Close Enough for Government Work: The Committee Rulemaking Game

Reasonable Agencies

When Injury Is Unavoidable: The Vaccine Act’s Limited Preemption of Design Defect Claims

Interrogation Stories

Constitutional Enforcement by Proxy

Counterinsurgency, The War on Terror, and The Laws of War

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

National Security Fact Deference

Intent to Contract

Originality

Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

Standing for the Public: A Lost History

Full Faith and Credit in the Early Congress

Is O Centro Really A Sign of Hope for RFRA Claimants?

The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act

The SEC in a Time of Discontinuity: Introduction to Virginia Law Review Symposium

The Race for the Bottom in Corporate Governance

Redesigning the SEC: Does the Treasury Have a Better Idea?

Top Cop or Regulatory Flop? The SEC at 75

Commentary On Redesigning The SEC: Does The Treasury Have A Better Idea?

Securities Law and the New Deal Justices

The Securities Laws and the Mechanics of Legal Change

Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC

Treatment Differences and Political Realities in the GAAP-IFRS Debate

The SEC, Retail Investors, and the Institutionalization of the Securities Markets

Whither the SEC Now?

A Requiem for the Retail Investor?

The Common Law Prohibition on Party Testimony and the Development of Tort Liability

Managers, Shareholders, and the Corporate Double Tax

Chevron Has Only One Step

Chevron’s Two Steps

Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis

Of Guns, Abortions, and the Unraveling Rule of Law

The Antitrust of Reputation Mechanisms: Institutional Economics and Concerted Refusals to Deal

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases

Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887

Invalid Forensic Science Testimony and Wrongful Convictions

The Space Between Markets and Hierarchies

A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry

Consumerism and Information Privacy: How Upton Sinclair Might Once Again Protect Us From Ourselves (And Why We Should Let Him)

(Over)Valuing Uniformity

Doctrinal Feedback and (Un)Reasonable Care

Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”

Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs

A Tribute to Earl C. Dudley, Jr.

A Tribute to Glen O. Robinson

Linkage and the Deterrence of Corporate Fraud

State Action and the Thirteenth Amendment

Is OSHA Unconstitutional?

Destabilizing Discourses: Blocking and Exploiting a New Discourse at Work in Gonzales v. Carhart

Choice of Law, the Constitution, and Lochner

Cities, Economic Development, and the Free Trade Constitution

Patent Claim Construction

How Automobile Accidents Stalled the Development of Interspousal Liability

The Chicken and the Egg: Kenneth S. Abraham’s “The Liability Century”

A Theory of Procedural Common Law

Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State

Judicial Sincerity

Citizenship Denied: The Insular Cases and the Fourteenth Amendment

Delaware’s Compensation

The Suspension Clause: English Text, Imperial Contexts, and American Implications

The Taxation of Carried Interests in Private Equity

The Right to Education in Juvenile Detention Under State Constitutions

The Supreme Court and the Politics of Death

The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers

The Low Written Description Bar for Software

Racial Equality: Progressives’ Passion for the Unattainable

Information and the Market for Union Representation

Overcoming Procedural Boundaries

From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory

Finding the Proper Balance: A Look at the Continuing Development of Campus Suicide Policies

A Doctrine of Full Faith and Credit

Domesticating Sole Executive Agreements

What is Standing Good For?

The People or the State?: Chisholm v. Georgia and Popular Sovereignty

Not-So-Serious Threats to Judicial Independence

Democratic Failure and Emergencies: Myth or Reality?

The (Hidden) Risk of Opportunistic Precautions

Originalism, Popular Sovereignty, and Reverse Stare Decisis

Fair Use Harbors

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

Mediating Rules in Criminal Law

Extraterritorial Patent Enforcement and Multinational Patent Litigation: Proposed Guidelines for U.S. Courts

Rethinking Ableman v. Booth and States’ Rights in Wisconsin

“The Dean of Chicago’s Black Lawyers”: Earl Dickerson and Civil Rights Lawyering in the Years Before Brown

Structural Reform Prosecution

Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty

Delegation Really Running Riot

Entrapment, Punishment, and the Sadistic State

Anticipated Judicial Vacancies and the Power to Nominate

Religion and Public Education in a Constitutional Democracy

Economic and Legal Boundaries of Firms

Treaties’ Domains

International Human Rights in American Courts

The Myth of the Shareholder Franchise

The Many Myths of Lucian Bebchuk

Too Many Notes and Not Enough Votes: Lucian Bebchuk and Emperor Joseph II Kvetch About Contested Director Elections and Mozart’s Seraglio

Professor Bebchuk’s Brave New World: A Reply to “The Myth of the Shareholder Franchise”

The Mythical Benefit of Shareholder Control

The Shareholder Franchise is Not a Myth: A Response to Professor Bebchuk

Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis

The Temporal Dimension of Voting Rights

Mens Rea and the Cost of Ignorance

Authorized Generics: A Prescription for Hatch-Waxman Reform

Ambivalence About Formalism

The Missing Interest: Restoration of the Contractual Equivalence

Why Summary Judgment is Unconstitutional

Result or Reason: The Supreme Court and Sit-In Cases

How to Construe a Hybrid Statute

On Belling the Cat: Rawls and Corrective Justice

Eliminating Corrective Justice

Making and Keeping Contracts

Is As Ought: The Case of Contracts

Private Order and Public Justice: Kant and Rawls

Freedom and Enforcement: Comments on Ripstein

Public Legal Reason

Private Law and Public Reason

The Role of Formal Contract Law and Enforcement in Economic Development

Contract Theory On and Off the Grid

Libertarianism, Utility and Economic Competition

Liberties and Markets

An Efficiency Model of Section 363(B) Sales

Emergencies and Democratic Failure

Two Models of Tort (and Takings)

European Corporate Choice of Law

“True Threats” and the Issue of Intent

Risk and Redistribution in Open and Closed Economies

Intergovernmental Liability Rules

The Right to Judicial Review

Return on Political Investment: The Puzzle of Ex Ante Investment in Articles 3 and 4 of the U.C.C.

Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere

Justiciability and Remedies–And Their Connections to Substantive Rights

Deforming the Federal Rules: An Essay on What’s Wrong with the Recent Erie Decision

Solving the Extraterritoriality Problem: Lessons from the Honest Services Statute

An Argument for the Partial Abrogation of Federally-Recognized Indian Tribes’ Sovereign Power Over Citizenship

What Makes the D.C. Circuit Different? A Historical View

A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients

Exclusionary Amenities in Residential Communities

The Law Clerk Who Wrote Rasul v. Bush

The Promise of International Law

Chevron Step Zero

Rule-Based Dispute Resolution in International Law

Modernizing the Critique of Per Diem Pain and Suffering Damages

The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception

Habeas Settlements

Predictive Decisionmaking

Intellectual Property, Innovation, and Decision Architectures

Information Markets: Using Market Predictions to Make Today’s Decisions

The Federal Courts, the First Congress, and the Non-Settlement of 1789

Exiting Treaties

Constitutional Calcification: How the Law Becomes What the Court Does

A Simple Proposal to Halve Litigation Costs

Administrative Reconsideration

Monopoly, Mercantilism, and Intellectual Property

Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property and the Incentive Thesis

Liberalism and the Unpleasant Question of Torture

A Litigation Association Model to Aggregate Mass Tort Claims for Adjudication

Relocating Disorder

The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies

A Normative Theory of Business Bankruptcy

Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court

Proportionality and Federalization

Selection Effects in Constitutional Law

Justifying Self-Defense: A Theory of Forced Consequences

“The Indispensable Basis of Democracy”: American Catholicism, the Church-State Debate, and the Soul of American Liberalism, 1920-1929

A Forest with No Trees: The Supreme Court and International Law in the 2003 Term

The Constitutional Right Against Excessive Punishment

Prosecuting Batterers After Crawford

Preserving Collective-Action Rights in Employment Arbitration

Restoring Restitution

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

What is Textualism?

Textualism and Legislative Intent

A Response to Professor Manning

Does Frye or Daubert Matter?: A Study of Scientific Admissibility Standards

The Concealmeant of Religious Values in Judicial Decisionmaking

Reviewing Premarital Agreements to Protect the State’s Interest in Marriage

English Jurisprudence Between Austin and Hart

Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies

Or, Even, What the Law Can Teach The Philosophy of Language: A Response to Green’s Dworkin’s Fallacy

Halpin on Dworkin’s Fallacy: A Surreply

State Redistricting Law: Stephenson v. Bartlett and Judicial Promotion of Electoral Competition

Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles

Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment

The Limited Domain of the Law

Crime Severity and Constitutional Line-Drawing

A Law and Norms Critique of the Constitutional Law of Defamation

What Brown Teaches Us About Constitutional Theory

The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation

Time, Change, and the Constitution

Brown at 50

Brown, School Choice, and the Suburban Veto

Black on Brown

Both Victors and Victims: Prince Edward County, Virginia, the NAACP, and Brown

Some Legacies of Brown v. Board of Education

The Space Between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege

Corporations, Society, and the State: A Defense of the Corporate Tax

Through the Looking Glass: The Confederate Constitution in Congress: 1861-1865

Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System

Judicial Takings and the Course Pursued

Exclusion and Property Rules in the Law of Nuisance

Common Sense and Legal Science

Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms

Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA

Of Power and Responsibility: The Political Morality of Federal Systems

More Is Less

Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge

Information Costs in Patent and Copyright

Thomas Jefferson Counts Himself into the Presidency

Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts

“Happy” Birthday, Brown v. Board of Education? Brown’s Fiftieth Anniversary and the New Critics of Supreme Court Muscularity

Constitutional Decision Rules

The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson

Lyons v. Oklahoma, the NAACP, and Coerced Confessions Under the Hughes, Stone, and Vinson Courts, 1936-1949