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2026/11/05:
)
In some American neighborhoods, a resident can walk three blocks in any direction and find a supermarket stocked with fresh produce, specialty items, and organic alternatives; living in such a “food oasis” is defined by abundance, choice, and competition. In others, a resident must travel miles just to buy basic groceries, navigating convenience stores
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2026/11/05:
)
Modern American confession law is a ghost of its former self. Under current Due Process doctrine, a confession is admissible at trial only if it is “voluntary”—a rule that the Supreme Court claims to derive from two centuries of Anglo-American common law. But this doctrinal origin story is little more than a fiction. Today’s
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2026/11/05:
)
WALTER: Don’t cry, Mama. Understand. That white man is going to walk in that door able to write checks for more money than we ever had. It’s important to him and I’m going to help him . . . MAMA: Son—I come from five generations of people who was slaves and sharecroppers—but ain’t nobody
(
2026/10/07:
)
The notion of “exceptionalism” has characterized immigration law for more than a century. Many constitutional and other traditional norms do not apply in the realm of immigration law. Venue, as prescribed and practiced in Immigration Courts, is yet another example of outlier conduct. Venue, a standard litigation norm, has been seriously perverted. Instead of
(
2026/10/07:
)
Progressive cause lawyers face a defining challenge in responding to an entrenched conservative Supreme Court majority that is systematically dismantling liberal precedent. An intuitive solution—Court reform—confronts insurmountable political barriers and likely constitutional challenges from the very institution it seeks to modify. Rather than pursuing continued affirmative constitutional litigation or embracing conventional reform efforts, this
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2026/10/07:
)
The conservative Supreme Court has established maximum presidential control over formal administrative adjudication, despite the resulting impact on independence and expertise in adjudicatory process. Concurrently, a progressive public law perspective advocates for agencies to be released from procedure to allow them to accomplish more, regardless of the fact that procedures create important guardrails for
(
2026/10/07:
)
The Federal Reserve (Fed) has quietly become the world’s de facto central bank. Acting as the global lender of last resort, it has backstopped the global economy through central bank swap lines—bilateral agreements with foreign central banks—that supplied more than half a trillion dollars during the Global Financial Crisis and COVID-19. Five of those
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2026/10/07:
)
The Supreme Court’s modern reliance on history and tradition has reshaped constitutional adjudication across multiple doctrinal areas, including Substantive Due Process, the Second Amendment, and the Religion Clauses. The Court has justified this methodology as a means of constraining judicial discretion by anchoring constitutional meaning in the past. Yet persistent disagreement within the Court
(
2026/09/01:
)
This Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use
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2026/09/01:
)
For decades, the dominant form of private health insurance in the United States—by far—has been employment-based group health insurance. Somewhere in the range of 175 million employees and their families receive health care coverage through a system in which employers serve as financiers, procurers, administrators, and fiduciaries of the health insurance promise. An overwhelming
(
2026/09/01:
)
“Marriage is a matter of more worth / Than to be dealt in by attorneyship.” William Shakespeare, Henry VI, Part I act 5, sc. 5, l. 55–56. A failed tenancy by the entirety occurs when a conveyance is made to an unmarried pair either as [1] tenants by the entirety or [2] as spouses;
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2026/09/01:
)
The year is 2021. Parents are riddled with strife over their children learning about white supremacy, “critical race theory” is America’s new buzzword, and 1,648 books have been banned. Of those books, 40% featured protagonists or prominent secondary characters of color, 21% of the titles directly addressed issues of race and racism, and 10%
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2026/07/30:
)
This Article presents novel empirical research showing that one in seven U.S. children have had a household member prosecuted by the state in the last ve years. Using unique data derived from millions of administrative and Census survey records from multiple states and decades, I show that for an estimated eleven million U.S. children
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2026/07/30:
)
Service members face an increased risk of sexual assault and harassment in the U.S. military when compared to American civilian society. Yet, Congress recently dialed back its efforts to help military sexual trauma (MST) survivors. Congress cut access to Department of Veterans Affairs (VA) health care for a subset of MST survivors—those who receive
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2026/07/30:
)
Damage awards are often intended to make plaintiffs whole, yet their tax treatment often undermines this goal. Plaintiffs frequently face unfavorable tax consequences that reduce the net value of their awards, leaving them worse off relative to the position they would have occupied absent the defendant’s wrongful conduct. Despite their significant impact, the tax
(
2026/07/30:
)
The 2023–2024 Supreme Court term marks a watershed moment in American administrative law. In a trilogy of pivotal rulings—Loper Bright Enterprises v. Raimondo, Corner Post, Inc. v. Board of Governors of the Federal Reserve System, and SEC v. Jarkesy—the Court decisively curtailed longstanding doctrinal foundations supporting agency autonomy. While Loper Bright garnered national attention
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2026/07/30:
)
Section 806 of the Sarbanes-Oxley Act protects employees of publicly traded companies from retaliation by their employers for reporting conduct that they reasonably believe constitutes shareholder fraud or a violation of U.S. securities law. This protection empowers employees with knowledge of past, ongoing, or likely future fraud to “blow the whistle” by sharing that
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2026/07/30:
)
New York’s Marihuana Regulation and Taxation Act (MRTA) promised an equity-centered model of cannabis legalization, but its Social and Economic Equity (SEE) and priority licensing programs have fallen far short of their goals. This Note argues that low licensing rates, predatory financing structures, pervasive illicit markets, and severe rollout delays have undermined justice-involved entrepreneurs
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2026/07/30:
)
When one imagines a judge deciding whether a statute violates the U.S. Constitution, the natural question that comes to mind is whether the statute violates the constitutional doctrine raised. And that is precisely what the U.S. Supreme Court considers. But—as this Article demonstrates in an original fifty-state survey—this approach is far from universal. In
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2026/07/30:
)
Junk forensics have played a central role in wrongful convictions. From bitemark evidence to hair microscopy, from arson investigation to toolmark comparison, courts have repeatedly allowed testimony about techniques and methodologies that have no basis in reliable science. The result has been hundreds of exonerations, and likely thousands more wrongful convictions. One of the
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2026/07/30:
)
A longstanding debate exists over whether patents are forms of “private property” that the Takings Clause protects. Recently, in a different context, the Supreme Court stated that a patent is a specific form of property: a public franchise. Several scholars have argued that the public franchise characterization means patents are not protected by the
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2026/05/27:
)
This Article tackles an increasingly important question: Can police round up people on American streets and keep secret the names of those they detain without violating the First Amendment? Alarmingly, the government made this very argument in the summer of 2020 when it sought to break up Black Lives Matter protests occurring in cities
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2026/05/27:
)
This Article empirically examines the effect of the dangerous patient exception to the psychotherapist-patient evidentiary privilege. The U.S. Supreme Court first recognized the psychotherapist-patient privilege in Jaffee v. Redmond. This evidentiary privilege prevents mental health professionals from testifying about confidential statements made by patients for the purposes of treatment. Since Jaffee, federal circuit courts
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2026/05/27:
)
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert opinion testimony in federal court. Indeed, the admissibility of expert opinion testimony is a key driver of the outcome in a multitude of criminal and civil proceedings. In the absence of admissible DNA or fingerprint evidence, a prosecutor may make an
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2026/05/27:
)
The Morrill Land Grant Act of 1862 (Morrill Act) was the first federal legislation to fund public higher education in the United States, funding fifty-two land-grant universities (LGUs) that still exist today. While the purpose of the Act was to “democratiz[e] . . . education” focusing on the study of agriculture and mechanical arts,
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2026/05/14:
)
In bankruptcy, establishing a mass-tort trust is the final piece in structuring resolution of protracted aggregate litigation faced by a corporate debtor. As seen in cases like Purdue Pharma and Boy Scouts of America, the multibillion-dollar aggregate settlement figure captures all the headlines. But the trust distribution provisions—which actually provide the details of how
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2026/05/12:
)
In bankruptcy, establishing a mass-tort trust is the final piece in structuring resolution of protracted aggregate litigation faced by a corporate debtor. As seen in cases like Purdue Pharma and Boy Scouts of America, the multibillion-dollar aggregate settlement figure captures all the headlines. But the trust distribution provisions—which actually provide the details of how
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2026/05/12:
)
This Article proposes nine methods for dealing with the damages phase in a mass tort or mass accident situation after an issue class action on liability has been certified and plaintiff has prevailed on liability in Phase I or once a case has been filed in a bankruptcy court and needs to be valued.
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2026/05/12:
)
Litigation finance makes the world go round. The capital financiers provide is the lifeblood for plaintiffs’ firms and individual claimants attempting to run the litigation gauntlet in high-stakes battles with wealthy corporate entities. Third-party litigation funding in general litigation is well documented and frequently discussed. But the role financiers play and the dynamics they
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2026/05/12:
)
The main debate surrounding litigation funding in recent years has focused on the question of disclosure of funding agreements. While the issue is important, predominantly because of its effects on the course and outcome of individual cases, far more important are bigger, interrelated questions that have systemic effects on the civil justice system, the
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2026/05/12:
)
Mass torts have inspired a number of innovative procedural approaches. They include creative uses of class actions, multidistrict litigation (“MDL”) and, more recently, the bankruptcy system. These procedural innovations have been challenged as a “revolution” that departs from “traditional litigation goals,” particularly our “deep-rooted tradition” of one having their “day in court.” In this
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2026/05/12:
)
One of the crucial insights of the judges responsible for the Multidistrict Litigation Act was that no one could opt out. Indeed, the whole idea of MDL is that everyone is stuck there, required to participate in pretrial proceedings until the litigation is resolved or the Judicial Panel on Multidistrict Litigation (JPML) decides it’s
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2026/03/18:
)
As she was wheeled into surgery, Amber Thurman said to her mother, “Promise me you’ll take care of my son.” She was suffering a rare complication from the abortion pill that she was legally prescribed at nine weeks of pregnancy. Not all of the fetal tissue had been expelled, and, as a result, she
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2026/03/18:
)
The use of manipulative interrogation techniques by police officers in the United States, specifically the Reid Interrogation Technique, is like a psychological tsunami. The steam-rolling effect of utilizing intense pressure and police deception to intimidate suspects into confessing to crimes has resulted in false confessions and wrongful convictions, which disparately impact the Black community,
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2026/03/18:
)
Families today are more private and more public than traditional family law doctrine ever envisioned. This Article reveals how many elements of family life, which the law often assumes will occur in public—work, school, social life—have moved into the private sphere of the home. While at the same time, private family life has become
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2026/03/18:
)
For years, scholars have been sounding the alarm on “rap on trial,” or the use of rap as evidence in criminal proceedings, pointing out that the fundamental characteristics of rap music make it uniquely susceptible to misinterpretation and prejudice. Scholars have also cautioned that rap on trial has the potential to chill artistic expression
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2026/03/18:
)
In 2022, prices for both brand-name and generic drugs in the United States were nearly three times as high as prices in comparably industrialized nations, with the cost of insulin products in particular being nearly ten times as high. As a result, three out of ten American adults cannot afford to take their medication
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2026/02/27:
)
The doctrine of copyright exhaustion conceals a substantial and underappreciated subsidy at the heart of American copyright law. For more than a century, it has operated as a deliberate congressional scheme transferring billions of dollars in value to cultural institutions, such as libraries, museums, and galleries. This Essay reconceptualizes copyright law as a system
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2026/02/27:
)
On July 4, 2025, President Donald J. Trump signed into law the One Big Beautiful Bill Act (OBBBA). This new law was built on the foundations of its immediate predecessor,the 2017 Tax Cuts and Jobs Act (TCJA). This Essay examines the historical roots and contemporary implications of these two laws. It argues that both
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2026/01/08:
)
It has often been said that the internet lacks public property. Unlike the offline world, denizens of cyberspace cannot gather in the digital equivalent of public parks, cannot shame websites by picketing on adjacent cyber-sidewalks, and cannot loiter in online streets and alleys if they lack a cyber-place of their own. Yet scant attention
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2026/01/06:
)
The Indian Child Welfare Act (ICWA) of 1978, enacted to protect Native American children from being removed from their tribes, was recently upheld in 2023 by the U.S. Supreme Court in Haaland v. Brackeen in the face of considerable challenge. Through analyzing the upholding of ICWA and its ramifications, this Note seeks to examine
(
2026/01/06:
)
It has often been said that the internet lacks public property. Unlike the offline world, denizens of cyberspace cannot gather in the digital equivalent of public parks, cannot shame websites by picketing on adjacent cyber-sidewalks, and cannot loiter in online streets and alleys if they lack a cyber-place of their own. Yet scant attention
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2026/01/06:
)
American eviction proceedings are governed by a fusion of property and contract law. The law’s narrow understanding of eviction ignores the importance of a dwelling place to its occupants. Property is not merely land or a structure on that land; it is a home with the power to shape communities, social relationships, and human
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2026/01/06:
)
In the summer of 1977, several families living in Tyler, Texas received a letter informing them that their children were no longer eligible to attend public school—unless they could pay $1,000 in tuition. Nine-year-old Alfredo Lopez should have been starting second grade, but his family could not afford the fee. What set him apart
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2026/01/06:
)
In 2023, investigative journalists reported multiple instances where billionaires showered Supreme Court Justices with lavish gifts. Previously undisclosed luxury fishing trips, private jet travel, and yacht cruises ignited popular and scholarly debates about Congress’s role in regulating Justices’ conduct. This Article explains how income taxation can, and should, be used to regulate judicial misconduct
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2025/08/22:
)
The use of race in college admissions is contentious not only because elite colleges are a gateway to good careers, but because the colleges themselves symbolize belonging at the highest levels of American society. In this sense, the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
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2025/08/21:
)
In an increasingly technological, interconnected, and digital world, advancements in technology pose significant legal challenges. “Grey zone” conflicts—such as in cyber warfare, election interference, political subversion, and proxy wars—share a common characteristic: exploiting gaps in international law. These conflicts allow States to leverage legal ambiguities as tools in their strategic planning, enabling them to
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2025/08/21:
)
U.S. courts have, time and again, struck down genus claims for undue experimentation. The most recent blow came last year in Amgen v. Sanofi, when the Supreme Court affirmed the lower court’s ruling that Amgen’s patent on antibodies with a specific target was invalid for lack of enablement. In that ruling, the Court invoked
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2025/08/21:
)
“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and
(
2025/08/21:
)
Municipalities increasingly rely on nonpolice public safety experts—from substance abuse counselors and mental health interventionists to homeless outreach teams and violence interrupters—to address safety issues once solely within the purview of armed police. These “alternate responders” aim to resolve public safety concerns with less unnecessary conflict, violence, and death. But what happens when these
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2025/07/24:
)
This Essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett, Kurt Lash, and Ilan Wurman. Under the guise of “originalism,” Barnett, Lash, and Wurman propose an ahistorical, revisionist interpretation of the Fourteenth Amendment’s Citizenship Clause. They suggest that the
(
2025/07/24:
)
A new Federal Rule of Civil Procedure, Rule 87, quietly took effect in December 2023. The wholesale adoption of a new rule is rare; most changes to the Federal Rules of Civil Procedure involve tweaks or minor revisions to existing rules, and many existing rules are quite old. Yet, despite the novelty of a
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2025/05/31:
)
This Note argues that the Supreme Court’s shifting attitude towards race-conscious school admissions can be best understood by making sense of the Court’s gradually elevated requirements of individuality in school admissions. Specifically, this note argues that (1) treating each applicant as an individual has been a constitutionally necessary, but not constitutionally sufficient, requirement since
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2025/05/31:
)
The revolutionary principle of erga omnes partes standing can be utilized as an enforcement tool for the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). Recent judicial developments within the International Court of Justice propel this argument forward, providing a novel solution to enforce international human rights obligations. While erga
(
2025/05/31:
)
Admission charges at Chicago’s small music venues are generally exempt from tax. But a few years ago, officials came after clubs that hosted rock, hip-hop, country, and DJ performances, claiming that those kinds of music weren’t “commonly regarded as part of the fine arts.” Controversy exploded, critics derided the idea of turning tax collectors
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2025/05/31:
)
This Article attempts to unite the movements against the death penalty and mass incarceration. The central argument is that many noncapital sentences are in the same category of injury as the death penalty. Thus, whatever the law says (or ought to say) about the legitimacy of the death penalty, it should also say about
(
2025/05/31:
)
Generative AI poses deep questions for copyright law because it defies the assumptions behind existing legal frameworks. The tension surfaces most clearly in debates over fair use, where established tests falter in the face of generative systems’ distinctive features. This Article takes up the fair-use question to expose copyright’s limitations as well as its
(
2025/04/19:
)
This Article argues that contracts that violate Section 1 of the Sherman Act should not be enforceable. Although seemingly modest, courts do not accept this proposition. When a defendant in a breach of contract action raises the defense of “illegality” under the Sherman Act, courts will likely reject the defense unless the contractual provision
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2025/04/19:
)
In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They
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2025/04/19:
)
Social media has eluded regulation by taking refuge in the First Amendment. The First Amendment, scholars and lawmakers overwhelmingly argue, is a formidable obstacle to regulation because social media facilitates the creation and exchange of speech by users. The received wisdom, therefore, characterizes users as consumers of a speech-related service, which inevitably does raise
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2025/04/19:
)
Courts and commentators take it as given that the word “property” in the Fifth Amendment’s Due Process Clause refers to a broader class of assets than does the word “property” in the Fifth Amendment’s Takings Clause. In this Note, I challenge that assumption and argue that takings “property” ought to include the same assets
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2025/04/19:
)
Happily, ours is a country dedicated to religious toleration. Among the “crucial principles of our liberal democracy” is that “Americans should freely practice their religions, and government should not establish any religion.” Not content to let those principles remain aspirational, we give them legal force in the form of the Free Exercise and Establishment
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2025/03/19:
)
The future of artificial intelligence (AI) is synthetic. Several of the most prominent technical and legal challenges of AI derive from the need to amass huge amounts of real-world data to train machine learning (ML) models. Collecting such real-world data can be highly difficult and can threaten privacy, introduce bias in automated decision making,
(
2025/03/11:
)
Growing scientific evidence shows that vast numbers of nonhuman animals are feeling, sentient beings, and ethicists have argued that this means they have moral value. However, law’s integration of individual animals as subjects with greater protection has been slow, despite the terrible threats that animals face today from human drivers like anthropogenic climate change
(
2025/03/11:
)
What are the barriers to progress? For decades, IP scholars had an easy answer: suboptimal private investment in public goods. Recent work on the psychology and sociology of creativity has, however, undermined this easy answer. Simply put, the level of private investment does not dictate the “Progress” of “Science and useful Arts.” As a
(
2025/03/11:
)
The future of artificial intelligence (AI) is synthetic. Several of the most prominent technical and legal challenges of AI derive from the need to amass huge amounts of real-world data to train machine learning (ML) models. Collecting such real-world data can be highly difficult and can threaten privacy, introduce bias in automated decision making,
(
2025/03/11:
)
The Shouldice Hospital, a medical center outside of Toronto, has become well known for bucking prevailing medical norms. Rather than performing the full panoply of medical services, like most hospitals, it focuses on a single type of surgery— hernia repair. The surgeons at Shouldice perform up to 800 hernia repairs per year, more than
(
2025/03/11:
)
This Note argues that some courts might increase their use of the inevitable disclosure doctrine if the FTC rule banning noncompetes survives legal challenge. The Note begins from the premise that the reason many courts reject the inevitable disclosure doctrine is that if the employer wanted to protect itself against the competition of former
(
2025/03/11:
)
Laws that substantially restrict abortion, gender-affirming care, and aid in dying do not merely forbid particular acts; they effectively mandate burdensome bodily obligations. Yet many proponents of such restrictions purport to support a right to bodily autonomy in other contexts, for example by opposing public health vaccination and masking mandates. They distinguish the former
(
2025/03/11:
)
This Essay is somewhat unusual for a Symposium of this nature honoring the scholarship (and of course the memory) of my former colleague and friend Sherry Colb. I will not engage directly with an article or book Sherry did write, but rather with one that she didn’t. Sherry (and her husband and frequent coauthor
(
2025/03/11:
)
In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited
(
2025/03/11:
)
From May through August of 2022, Professor Sherry Colb wrote an impressive series of essays in furious response to what soon became Dobbs v. Jackson Women’s Health Organization, a nearly final draft of which had been leaked before its official publication date. In All Hail Justice Coathanger, Gunning for Involuntary Pregnancy, and finally Alito and the Free Exercise
(
2025/03/11:
)
Professor Colb addressed issues of privacy and the Fourth Amendment in many of her articles. A key aspect of her scholarship focused on the appropriate test for determining what is a search under the Fourth Amendment. Her article—A World Without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches
(
2025/03/07:
)
Growing scientific evidence shows that vast numbers of nonhuman animals are feeling, sentient beings, and ethicists have argued that this means they have moral value. However, law’s integration of individual animals as subjects with greater protection has been slow, despite the terrible threats that animals face today from human drivers like anthropogenic climate change
(
2025/03/07:
)
What are the barriers to progress? For decades, IP scholars had an easy answer: suboptimal private investment in public goods. Recent work on the psychology and sociology of creativity has, however, undermined this easy answer. Simply put, the level of private investment does not dictate the “Progress” of “Science and useful Arts.” As a
(
2025/03/07:
)
The future of artificial intelligence (AI) is synthetic. Several of the most prominent technical and legal challenges of AI derive from the need to amass huge amounts of real-world data to train machine learning (ML) models. Collecting such real-world data can be highly difficult and can threaten privacy, introduce bias in automated decision making,
(
2025/03/07:
)
The Shouldice Hospital, a medical center outside of Toronto, has become well known for bucking prevailing medical norms. Rather than performing the full panoply of medical services, like most hospitals, it focuses on a single type of surgery— hernia repair. The surgeons at Shouldice perform up to 800 hernia repairs per year, more than
(
2025/03/07:
)
This Note argues that some courts might increase their use of the inevitable disclosure doctrine if the FTC rule banning noncompetes survives legal challenge. The Note begins from the premise that the reason many courts reject the inevitable disclosure doctrine is that if the employer wanted to protect itself against the competition of former
(
2025/02/12:
)
Laws that substantially restrict abortion, gender-affirming care, and aid in dying do not merely forbid particular acts; they effectively mandate burdensome bodily obligations. Yet many proponents of such restrictions purport to support a right to bodily autonomy in other contexts, for example by opposing public health vaccination and masking mandates. They distinguish the former
(
2025/02/12:
)
This Essay is somewhat unusual for a Symposium of this nature honoring the scholarship (and of course the memory) of my former colleague and friend Sherry Colb. I will not engage directly with an article or book Sherry did write, but rather with one that she didn’t. Sherry (and her husband and frequent coauthor
(
2025/02/12:
)
In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited
(
2025/02/12:
)
From May through August of 2022, Professor Sherry Colb wrote an impressive series of essays in furious response to what soon became Dobbs v. Jackson Women’s Health Organization, a nearly final draft of which had been leaked before its official publication date. In All Hail Justice Coathanger, Gunning for Involuntary Pregnancy, and finally Alito and the Free Exercise
(
2025/02/12:
)
Professor Colb addressed issues of privacy and the Fourth Amendment in many of her articles. A key aspect of her scholarship focused on the appropriate test for determining what is a search under the Fourth Amendment. Her article—A World Without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches
(
2025/02/12:
)
Social movements change hearts and minds by shifting how people understand what is true about the world around them. They start by making differences visible, centering lives and experiences previously pushed to cultural margins. Such differences are often at once biological and social, inherent and constructed. Feminist scholars and activists, for example, have grounded
(
2025/02/12:
)
Even as her life ebbed, Professor Sherry Colb was remarkably committed to scholarship. Among the works she produced in her last year was A New and Improved Doctrine of Double Effect: Not Just for Trolleys, posthumously published in the Connecticut Law Review. It was creative, enormously ambitious, wide-ranging, and entertaining—but, I think, at least in one
(
2025/02/12:
)
In a classic work of feminist theory, The Mermaid and the Minotaur, Dorothy Dinnerstein described her project this way: “[T]o fight what seems about to destroy everything earthly that you love—to fight it not passively . . . , with denial; and not unrealistically, with blind force; but intelligently, armed with your central resource, which
(
2025/02/12:
)
This Essay offers tribute to Professor Colb’s teachings and insights expressed in her writings on the Court’s Miranda and Self-Incrimination Clause rulings. Since the start of the twenty-first century, Professor Colb wrote many blogs on the Court’s Miranda doctrine. Miranda v. Arizona famously held that persons under arrest must be warned of their right
(
2025/02/12:
)
Sherry Colb was one of the most innovative Fourth Amendment thinkers of her generation. Every criminal procedure buff has something to say about search and seizure law, but Sherry was one of the few scholars who added to the canon. In particular, her two articles in Columbia Law Review, Innocence, Privacy, and Targeting in
(
2025/02/04:
)
Recently, the Delaware General Assembly amended Delaware’s corporate code to allow boards to delegate their decision-making powers to stockholders via contract. These amendments are significant because they effectively overturn a recent Delaware Chancery opinion. They’re also problematic, for two reasons: (1) because they are out of step with the best reading of Delaware corporate
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2024/12/19:
)
The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice Roberts is often described as an institutionalist who seeks to preserve the Supreme Court’s power or reputation. But what exactly is institutionalism, and should judges be institutionalists? Although institutionalism is invoked in
(
2024/12/19:
)
Every intellectual property right, like every property right generally, has a moment of birth. Whether and when that moment occurs depend on doctrines of original acquisition. In most IP regimes, these doctrines are so fundamental that they’ve been reduced to a single verb. One can get a patent only by inventing, or a copyright
(
2024/12/19:
)
In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide
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2024/12/19:
)
“One-share, one-vote” corporate governance often leads to inefficient negative externalities, even when shareholders care about direct harm to themselves and even if corporations respond to shareholder preferences. Because equity ownership is concentrated, while many externalities are more diffuse, corporate voting underweights externalities. But allocating votes according to the principle of “one person, one vote”
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2024/12/19:
)
In bankruptcy appeals, the judge-made prudential doctrine of “equitable mootness” allows appellate courts to dismiss an appeal as moot when granting the requested relief would undermine the finality of a substantially consummated plan of reorganization. As applied, however, the doctrine of equitable mootness is neither mootness nor equitable. On the former, equitable mootness is
(
2024/12/19:
)
This Note argues the increased profitability and shift toward “super conferences” in Division I college athletics does not comport with the NCAA’s “revered tradition of amateurism” and justifies college athletes’ classification as employees under the Fair Labor Standards Act (FLSA). Rather than making more traditional compensation arguments rooted in fairness or market value, employment
(
2024/12/17:
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Modern separation-of-powers jurisprudence—including key decisions decided during the Supreme Court’s 2023-24 term—has been critiqued on the grounds that it constitutes “judicial aggrandizement,” i.e., that it impermissibly empowers federal courts to decide separation-of-powers questions better left to Congress and the President. This “judicial aggrandizement” critique goes too far to the extent it suggests that federal
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2024/09/24:
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Which state-law cases should Congress allow into federal court? Congress’s answer has always been “only the big ones.” This article revisits the choice to limit diversity jurisdiction to higher-value cases and critically examines how Congress has approached setting the amount threshold. It surveys alternate ways Congress could use case value to sort which cases
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2024/09/24:
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The movement to elect so-called “progressive prosecutors” is relatively new, but there is a robust literature analyzing it from a number of angles. Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic. One essay
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2024/09/24:
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Recent economic and sociological studies have documented the rising challenge of carbon inequality—that is, extreme class disparities in carbon emissions both within the United States and globally. These studies show an alarming divide, with the top 10% of emitters producing half of all emissions and the top 1% alone producing 17% of emissions. Meanwhile,
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2024/09/24:
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This Note argues that courts should give more weight to climate change when assessing the reasonable investment-backed expectations that define the owner’s property interest. First, the owner’s expectations should be viewed dynamically, evolving over time, because government regulations—climate and disaster controls in particular—must also respond to changing circumstances. Currently, expectations are fixed at the
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2024/09/24:
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An invention is broadly defined as “anything that is created or devised.” As the Supreme Court once remarked, “the word cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not.” Today, most “inventors” are employees of a corporate
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2024/08/01:
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The problem of Big Tech has consumed recent legal scholarship and popular discourse. We are reckoning daily with the threats that digital speech platforms like Facebook, X (formerly known as Twitter), TikTok, and YouTube pose to our personal and political lives. Yet while this conversation is raging in discussions about the impact of technology
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2024/08/01:
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The Supreme Court has twice held since 2020 that statutory restrictions on the President’s removal power violate Article II of the U.S. Constitution. Because such removal restrictions create a measure of policy independence from the President, these cases have prompted discussion about the future of independent agencies generally, with special attention to the Federal
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2024/08/01:
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Immigrants and undocumented people have often encountered discrimination because they compete against “native” businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government’s ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and
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2024/08/01:
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Employment discrimination weakens the American economy, contributes to inequality, and deprives individuals of career opportunities. Estimates place the annual cost of employment discrimination at over sixty-four billion dollars. Economic research further documents earnings differentials of more than thirty percent between members of different racial groups or genders. To combat employment discrimination, Congress enacted a
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2024/08/01:
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Neurotechnology is advancing exponentially, and the laws of data privacy and security cannot keep pace. Soon, governments will exploit this technology in criminal investigations with what this Note calls “neurosearches.” Scholars have argued against the compelled gathering of neurological evidence as a violation of the Fifth Amendment, likening it to testimony and thus barred
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2024/07/29:
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Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds significant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the
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2024/07/29:
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Recently, advances in artificial intelligence (“AI”) have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over
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2024/06/24:
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The Federal Trade Commission has rejected consumer welfare and the Rule of Reason''”standards that drove antitrust for 50 years''”in favor of a ''œNeoBrandeisian'' vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda,
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2024/06/24:
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Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding. In the first, United States v. Sineneng-Smith, the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit'''s handling
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2024/06/24:
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Artificial intelligence (''œAI'') increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a ''œblack box.'' Designers create AI models too complex for people to understand or they conceal
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2024/06/24:
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Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds significant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the
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2024/06/24:
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Recently, advances in artificial intelligence (''œAI'') have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over
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2024/06/24:
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Across the country, due to a circuit split over the meaning of Federal Rule of Civil Procedure (''œRule'') 4(k), federal courts are enforcing the Fair Labor Standards Act (''œFLSA'') inconsistently. This Note argues that, under the current state of the law, Rule 4(k) must be read to apply to out-of-state opt-in employee-plaintiffs''' claims and
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2024/06/24:
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As legal commentators and policymakers have taken greater notice of the harms that covenants not to compete (''œnoncompetes'') cause workers, they have offered numerous policy proposals seeking to curb those harms. Indeed, the Federal Trade Commission proposed an outright ban on non-competes on January 5, 2023. None of these policy proposals have yet become
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2024/06/24:
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This Note will argue that as a matter of law, courts should not apply common law limitations when interpreting catch-all provisions in contractual force majeure clauses. Instead, to properly limit the potential all-encompassing scope of force majeure catch-alls, courts should rely on the more general principles of contract interpretation. Part I of this Note
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2024/06/24:
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This Article examines the phenomenon of ''œone-offs'': court opinions that are rarely cited by the court that issued them and do not explicitly generate further doctrinal development. At first glance, one might think that such opinions are problematic outputs from an apex court such as the U.S. Supreme Court, whose primary tasks are the
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2024/06/24:
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Preventive medicine, which includes interventions intended to preempt illnesses before they surface, has long been a priority for furthering public health goals and improving quality of care. Yet, preventive medicine also sends strong signals about the possible risks associated with the users''' behavior and character. This signaling effect intersects with existing stigma and pervades