Volume 106 — 2020
Issue 8
Damages for Privileged Harm
The law often permits us to impose substantial harm on others without incurring liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. Calculating these damages requires …
The Rise and Fall of Transcendent Constitutionalism in the Civil War Era
In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress …
The Unlimited Jurisdiction of the Federal Courts
Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ …
The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act
From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society.
Issue 7
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 …
Issue 6
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 …
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 …
Issue 5
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 …
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 …
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 …
Issue 4
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 …
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 …
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 …
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 …
Issue 3
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 …
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 …
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 …
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 …
Issue 2
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, …
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 …
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’ …
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 …
Issue 1
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 …
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 …
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 …
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 …
Volume 105 — 2019
Issue 8
What is Just Compensation?
Federalism, Metropolitanism, and the Problem of States
Speech Across Borders
Unshackling the Due Process Rights of Asylum-Seekers
Issue 7
Appointments Without Law
Genetic Privacy After Carpenter
A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding
Issue 6
Insincere Evidence
Standing to Challenge the Lost Cause
Garbage Pulls Under the Physical Trespass Test
Issue 5
The Myth of Common Law Crimes
Faux Contracts
Issue 4
“Standing” and Remedial Rights in Administrative Law
Combating Silence in the Profession
Confining Cases to Their Facts
Pardoning Contempt—Reconsidering the Criminal-Civil Divide
Issue 3
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
Issue 2
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
Issue 1
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
Volume 104 — 2018
Issue 8
Administrative Rationality Review
Unconstitutionally Illegitimate Discrimination
Predicting Enemies
A “Corporate Democracy”? Freedom of Speech and the SEC
Issue 7
Powers, But How Much Power? Game Theory and the Nondelegation Principle
Socioeconomic Status Discrimination
Issue 6
The Securities Law Implications of Financial Illiteracy
The Death Penalty as Incapacitation
The Missing Theory of Representation in Citizens United
Issue 5
A Tribute to Gordon Hylton
Subsidizing Segregation
The Writ-Of-Erasure Fallacy
Akin to Madmen: A Queer Critique of the Gay Rights Cases
Issue 4
The Presumption of Civil Innocence
Justice Souter’s Common Law
Federal Decentralization
Congress as Elephant
Issue 3
The Damagings Clauses
Legal Innocence and Federal Habeas
Issue 2
Textualism and Statutory Precedents
Deregulation and the Subprime Crisis
“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches
Issue 1
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
Volume 103 — 2017
Issue 8
Enforcing the FCPA: International Resonance and Domestic Strategy
Restoring the Lost Anti-Injunction Act
Are Speech Rights for Speakers?
Moral Commitments in Cost-Benefit Analysis
Waiving the Ministerial Exception
Issue 7
Functionality Screens
Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments
Legislative Underwrites
Issue 6
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
Issue 5
Situational Severability
The Law Presidents Make
The Constitutional Right to Collateral Post-Conviction Review
Issue 4
The Untenable Case for Perpetual Dual-Class Stock
Entrenchment, Incrementalism, and Constitutional Collapse
Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause
Issue 3
Information Gaps and Shadow Banking
Religion Is Special Enough
Issue 2
A Tactical Fourth Amendment
The Economic Foundation of the Dormant Commerce Clause
Government Admissions and Federal Rule of Evidence 801(D)(2)
Issue 1
Sovereign Immunity and the Constitutional Text
Crackdowns
Volume 102 — 2016
Issue 8
Unbundling the “Tort” of Copyright Infringement
The Amicus Machine
Corporations, Unions, and the Illusion of Symmetry
Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform
In Defense of the Secular Purpose Status Quo
Issue 7
The Rationality of Rational Basis Review
The Positive Right to Marry
Legal Design for the “Good Man”
Issue 6
The New Antitrust Federalism
What’s Wrong With Sentencing Equality?
The Common Law of Contract and the Default Rule Project
Issue 5
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
Issue 4
Two Concepts of Discrimination
Executive Federalism Comes to America
The Failure of Liability in Modern Markets
Issue 3
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
Issue 2
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
Issue 1
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
Volume 101 — 2015
Issue 8
Changing the Vocabulary of the Vagueness Doctrine
Measuring the Impact of Plausibility Pleading
Insincere Rules
Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions
Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena
Issue 7
The Corporate Criminal as Scapegoat
Constructing Issue Classes
Commercial Speech, Commercial Use, and the Intellectual Property Quagmire
Issue 6
Patent Trolls and Preemption
Corporate Inversions and the Unbundling Of Regulatory Competition
Taming Title Loans
Issue 5
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
Issue 4
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
Issue 3
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
Issue 2
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
Issue 1
The Legitimacy Of (Some) Federal Common Law
Patent Experimentalism
The Corporate Settlement Mill
Volume 100 — 2014
Issue 8
Lambert Revisited
Unplanned Coauthorship
The Trouble with Amicus Facts
Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor
Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, …