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Volume 85 Issues 1-3 & Volume 84, Issues 1-6
Quinn Yeargain
Litigating Trans Rights in the States

Trans rights are under attack. Across the country, states are banning trans children and adults from gender-affirming care, forcing them into bathrooms and gender-segregated school activities that don’t align with their actual gender, and forcing them to be deadnamed and misgendered in a variety of contexts. While the U.S. Supreme Court has yet to weigh in on whether the Equal Protection Clause prohibits at least some discrimination on the basis of gender identity, trans advocates have been heartened by the Court’s ruling in Bostock v. Clayton County and early wins in federal court that have struck many of these restrictions down.
But the failure to challenge these laws with state constitutional claims is a short-sighted strategy. While there are reasonable signs for optimism, whether the U.S. Supreme Court will ultimately uphold or strike down these laws remains to be seen. And even if the Court affirms that at least some discrimination on the basis of gender identity is unconstitutional at least some of the time, not all discriminatory laws will be held unconstitutional. Accordingly, regardless of whether the ultimate outcome of federal litigation is success, failure, or something in between, advocates will need another venue to pursue their claims. Not only are state courts available, but many state constitutions provide litigants with unequivocally stronger claims. While the U.S. Constitution does not contain an Equal Rights Amendment, many states do—and review gender-based discrimination under strict scrutiny. While the scope of privacy rights under the U.S. Constitution is ambiguous after Dobbs v. Jackson Women’s Health Organization, many state constitutions contain robust privacy protections that have long been more expansive than the federal right to privacy. Most state constitutions also contain many, many more rights than the U.S. Constitution does, providing advocates with more claims still.

Andrew D. Selbst, Suresh Venkatasubramanian & I. Elizabeth Kumar
Deconstructing Design Decisions: Why Courts Must Interrogate Machine Learning and Other Technologies

Technologies do not just come about. They are designed, and those design choices affect everything the technology touches. Yet unless a legal question directly implicates the technological design, courts are not likely to interrogate it. In this Article, we use examples from machine learning to demonstrate that the design choices matter even for cases where the legal questions do not involve technology directly. We start by describing formal abstraction, a fundamental design technique in computer science that treats systems and subsystems as defined entirely by their inputs, outputs, and the relationship that transforms inputs to outputs. We show how this technique imbues the resulting technologies with effective claims about responsibility and knowability that compete with courts’ own determinations. We further show that these claims are rendered invisible over time. Thus, we argue that courts must unearth—or deconstruct—the original design choices in order to understand the legal claims in a given case—even those cases that do not on their face appear to be about technological design.

Anjelica Hendricks
Tolling Justice

Police officers commit crimes. All too often, however, they are not prosecuted. For decades, the conventional explanation has been that unprosecuted police crimes are the product of human choices: prosecutors who shield the police, unions that immunize their members from accountability, and police themselves for refusing to condemn their colleagues. Though these explanations play a role in the phenomenon, they are incomplete.
This Article shows that there is another reason why police officers frequently escape criminal accountability: statutes of limitations. Using a hand-built, original dataset of 838 likely police crimes, I find that statutes of limitations prevented prosecutors from bringing charges based on 642 of those crimes—a rate of 76.6%. These crimes were not minor offenses: in many instances, officers tortured suspects, committed perjury, tampered with evidence, and sexually abused witnesses. Shockingly, after committing these offenses, many unprosecuted officers remain in positions of power, as leaders of police agencies and even judges. After presenting this evidence, the Article grapples with the question whether statutes of limitation should shield police in this way. Although statutes of limitation are reasonably understood to protect certain fairness and legitimacy values associated with procedural justice, I argue that those very values should counsel against applying statutes of limitation to insulate police wrongdoing.

Derek Potts
From Inside the House: The Lurking Threat of Elections Being Overturned Within the Halls of Congress

This Note argues that the current set of contested elections procedures in the House of Representatives represent inadequate safeguards against abuse in our increasingly heated political environment and must be improved to protect principles of democratic government, particularly honoring the wishes of voters. While the framers and subsequent generations took seriously the threat of elections being subverted by bad actors, the systems they put in place to handle the issue are inadequate for the problems faced today. In fact, a review of the history of Constitutional, and statutory measures as well as House precedents reveals a history of abuse that could act as a playbook for those seeking to game the system. As the norms that were so heavily relied upon to maintain order in our national politics erode further and further, settled laws and not merely vague expectations must be put in place to protect democratic principles.

Eleanor A. F. Vorys
Title VII and Discrimination Against Third-Party Advocates: Interpreting Greater Protections to Further the Greater Goal

Advocacy discrimination theory could become a tool in the litigator’s toolbox as social media, the pandemic, and heightened political controversy combine to stoke the peoples’ movements in the workplace. Recognizing advocacy discrimination claims under Title VII could broaden protections for the “advocate-plaintiff” when discrimination occurs because of advocacy on behalf of other employees and their protected characteristics. These claims could protect advocates of controversial workplace decisions that are rooted in protected characteristics, such as the decision to provide gender affirming health insurance benefits for transgender employees or reproductive health services for female employees.
For now, the question stands as to whether advocates attempting to advance the intent of Title VII are protected against discrimination when they support fellow employees on the basis race, color, religion, sex, and national origin. While the First Circuit’s decision in Frith v. Whole Foods Market, Inc. may lead us to believe Bostock v. Clayton County forecloses advocacy discrimination claims, it is both possible and practical to construe Title VII to protect the advocates of employees who are discriminated against on the basis of race, color, religion, sex, and national origin. First, this article reviews the background of Title VII, the Sixth Circuit cases that established advocacy discrimination theory, and the First Circuit case that attempted to foreclose it. Then, it contemplates possible statutory interpretations to demonstrate how advocacy discrimination claims are consistent with the discrimination clause of Title VII. Finally, it discusses alternative solutions to protect the advocate-plaintiff given that the present-day Supreme Court could likely affirm the holding of Frith v. Whole Foods Market.

Armen H. Merjian
Housing Discrimination Is as Dangerous as Defective Stairs: The Nondelegable Duty to Obey State and Local Housing Discrimination Laws

After an introduction to the topic, Part II begins by setting forth the relevant principles of agency law and discusses the history and the rationale of the nondelegable duty doctrine. Following that, Part III demonstrates that housing discrimination is as potentially dangerous as defective stairs—for which courts impose a nondelegable duty of safe repair—and that its prevention and deterrence are just as important to the community as stair safety. Part IV examines the Supreme Court’s decision in Meyer, flagging several issues that cast doubt upon the Court’s analysis of the duty, and that distinguish it from any analysis under state and local law. Part V examines the recent decision of the Connecticut Supreme Court in Lopez v. William Raveis Real Est., Inc., a case that highlights the difficulties for courts, practitioners, and aggrieved parties in establishing the vicarious liability of owners in housing discrimination cases. Finally, Part VI examines the continued vitality of the nondelegable duty doctrine under state and local law, providing an in-depth analysis of New York City’s housing discrimination law as an exemplar. This analysis suggests that notwithstanding the Supreme Court’s decision under the FHA, the doctrine provides a viable alternative theory of liability in state and local forums. A brief Conclusion follows.

Alexander Billy & Neel U. Sukhatme
Creditor Courts

One of the largest institutional creditors in the United States is perhaps the most unexpected: the criminal court system. Each year, creditor courts collect more than $15 billion in revenues from criminal defendants. These fees are the lifeblood of the modern criminal legal system. In this Article, we shed new light on the legal and economic framework under which myriad stakeholders operate in creditor courts. By analyzing new survey data from clerks of court and 102 contracts with debt collection agencies in Florida, we provide general insights into how creditor courts distort incentives and teem with conflicts of interest. These inefficiencies regularly disrupt the financial stability of the judiciary as well as the lives of the largely indigent criminal defendants who remain indebted to this system. As we show, legislators, clerks of court, and the judiciary writ large subject criminal defendants to unconstrained coercion through the use of so-called “user fees.” Leveraging campaign finance data and publicly available litigation material, we also find suggestive evidence of possible quid pro quo rewards between collection agencies assigned to collect debt on behalf of courts and the clerks of court tasked with administering them. We argue that state constitutional reforms that eliminate creditor courts and mandate courts be funded from general state revenues are the only meaningful ways to permanently redress the social costs generated by criminal monetary sanctions.

Rebecca Green
FOIA-Flooded Elections

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state “freedom of information act” (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict statutory FOIA response deadlines, election officials spend hundreds of hours on records requests to the detriment of election preparedness—potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not be released; state records access laws often feature vague wording and spotty coverage. This compounds distrust and breeds litigation. The mandate that elections be transparent is sacrosanct. But so too is protecting a functioning democratic process. The justice system has processes in place to curb vexatious litigation and abusive discovery practices to ensure courts are not overrun. Should states adopt similar measures to protect elections? How can states stem FOIA flooding without diminishing the public’s right to transparent elections? FOIA-Flooded Elections takes up these questions, offering concrete paths to protecting both efficient election administration and public confidence in election outcomes.

Natalie R. Schmidt
Chaney Step Zero: Judicial Review of FEC Deadlock Dismissals

Partisan polarization has infected our politics at levels not seen in decades. But what happens when the contamination spreads to the institutions responsible for regulating the political process itself? At the Federal Election Commission (FEC), nothing. Under the FEC’s governing statute, the Federal Election Campaign Act (FECA), any serious action the agency undertakes must be supported by a bipartisan supermajority of commissioners. When the six commissioners fail to reach such consensus—or “deadlock”—due to partisanship or otherwise, nothing happens at all: no investigations, no regulations, no enforcement of federal campaign finance laws. For the first few decades of the FEC’s existence, these deadlocks were mostly harmless, if still frustrating. Thanks to FECA, even inaction by the FEC was subject to a critical safeguard: judicial review. But since 2018, the D.C. Circuit has found Heckler v. Chaney to bar review of deadlocks in which the commissioners voting against an enforcement action invoke the agency’s prosecutorial discretion. Consequently, a non-majority bloc of commissioners can refuse to support any or all enforcement proceedings—even for entirely partisan purposes—with little to no judicial oversight, simply by referencing the agency’s discretion in their reasoning. This Article attempts to resolve this stalemate by proposing a framework to guide judicial review of these deadlock dismissals. Based on the Chevron “Step Zero” of United States v. Mead Corp. and its foundation in legal process principles of institutional competency, this two-part framework limits Chaney’s preclusion of review to agency actions that carry the “force of law.” Because FEC deadlock dismissals represent a failure of the Commission to speak authoritatively as a whole, they do not carry the force of law, and thus are reviewable. For these and other agency actions that fail this “Chaney Step Zero,” the framework also provides a less absolute but still deferential inquiry to evaluate the persuasiveness of the agency’s invocation of its discretion—a prosecutorial-discretion analogue of Skidmore v. Swift. While this framework is designed to combat the gridlock plaguing the FEC, its principled and organized approach to Chaney’s application has the potential to guide judicial review of discretionary action throughout the administrative state.

Christopher J. Walker & David Zaring
The Right To Remove in Agency Adjudication

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication to an Article III federal court. This right to remove would avoid the constitutional issues Jarkesy presents while also advancing the goals of agency enforcement and adjudication better than the alternative of only bringing enforcement actions in federal court. Moreover, the SEC could adopt this right to remove now, before the Court decides Jarkesy, through internal administrative law. Congress, of course, could also enact it through ordinary legislation. It is also possible that the Court itself could adopt this remedy in Jarkesy, based on its recent decisions in United States v. Arthrex, Inc. and Axon Enterprise v. FTC. 

Stephen E. Henderson & Guha Krishnamurthi
A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment

The Fourth Amendment is a mirage. On paper—in the rules studied by law students, analyzed by scholars, and proclaimed by jurists—its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of “consent.” Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change—whether legislative or (ideally) constitutional—could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could continue to accomplish its aims—and in a more fair and evenhanded manner—and that would produce public data that could be mined for evidence of bias or manipulation. In this Article, then, we make the case for the abolition of Fourth Amendment consent except as an emergency doctrine, a move that would improve policing and restore an intended measure of human dignity and autonomy to the people. 

Michael Fussell
“Heads Up”: Combating Government Secrecy and Corporate Meddling in the Public’s Right to Know

The sounding of a horn late at night, or the occasional delay at a railroad crossing were for decades among the biggest concerns caused by the trains that made their way through the village of East Palestine, Ohio. On February 6, 2023, that all changed forever after a Norfolk Southern freight train derailed in the small community. Life as the community knew it was upended. Despite being hundreds of miles down the tracks, people in Cincinnati were asking questions. The city had recently announced a preliminary deal to sell Norfolk Southern its railroad infrastructure. Even prior to the derailment, some people wanted to know more about how their government and this private third party even reached an agreement. But a specific provision in the agreement between the government and Norfolk Southern, which the public never got to approve, was already in full force. And it was potentially contributing to the reported delay and attitudes against releasing public records related to the deal. This consequential provision explained that any publicity the government put out ahead of the referendum would not be allowed without the notification, consultation, and consent of Norfolk Southern. While it is alarming that private interests are creeping into public decision making, especially when an election is on the line following an environmental disaster, provisions like this are not uncommon. This Note describes how the current legal treatment of such “heads up” provisions negatively impacts the free flow of public information. It offers a multifaceted solution to improve requester trust and process efficiency, ranging from potential state legislative reforms to federal litigation strategies

Kevin Glomski
In With the One-Step, Out With the Circuit Split: Post-Bruen Analysis of 18 U.S.C. § 922(g)(4)

In 2020, approximately 1 in 5 American adults—or 57.8 million people—suffered from some form of mental illness. But, despite its prevalence and treatability, mental illness remains associated with unfortunate stigmas. In some instances, those stigmas extend to the law. According to 18 U.S.C. § 922(g)(4), anyone “who has been committed to a mental institution” is barred from “possess[ing] . . . any firearm or ammunition . . . .” Whether or not it is good policy to extend a federal ban on possessing firearms to people who have recovered from mental illnesses, there remains a separate question of whether the ban is constitutional. Because each circuit that has considered § 922(g)(4)’s constitutionality reviewed the statute under a now-obsolete analytical approach, the recent development in Second Amendment jurisprudence sheds new light on the circuit split. This Note argues that, because Bruen requires lower courts to wrestle more seriously with the history and tradition of the Second Amendment when analyzing the validity of § 922(g)(4), doing so should resolve the current circuit split in favor of invalidating the federal ban as applied to people who have recovered from mental illnesses

Harold Hongju Koh
International Law in the Russia-Ukraine War Keynote Address

It is my honor to keynote this important symposium on the “Russia-Ukraine War, One Year On.” I come to these remarks wearing three hats. First, I have taught international law for four decades, almost all of it at Yale. Second, during five different decades since 1980, I have served in legal and policymaking roles in the United States government under four Presidents: in the courts, the Justice Department, and the State Department. And since 2016, I have been one of Ukraine’s legal counsel in three different international cases, before the International Court of Justice (ICJ) and the Permanent Court of Arbitration (PCA). From those three perspectives, let me offer an overview of the current Russia-Ukraine situation: first, the spectrum of international legal issues raised; second, the historical precursors to the conflict, which began on February 24, 2022; and third, Ukraine’s grand strategy, its legal component—which some call a “lawfare strategy”—and what we might hope to see in the months ahead. 

Dakota S. Rudesill
Striking Russia if Russia Nukes Ukraine: Presidential War Power Beyond Its Outer Edge

Russia’s full scale invasion of Ukraine in February 2022—underway for the better part of two years as of this writing—has prompted the most serious international security crisis in at least a half century, and the greatest risk of nuclear use and a Washington-Moscow nuclear exchange since the 1983 Able Archer war scare or the 1962 Cuban Missile Crisis. In fall 2022, with concern growing about Russian resort to nuclear weapons against Ukraine, senior U.S. officials privately spelled out to the regime of Russian strongman Vladimir V. Putin the “catastrophic consequences” that would follow if Russia broke the 77 year-old taboo against use of nuclear weapons in armed conflict. In official public warnings to the Kremlin, American and other NATO leaders maintained calculated ambiguity. In anonymous comments to the press, they threatened punitive conventional military strikes against Russian targets if the Kremlin crossed the nuclear threshold. Discussion has focused on the role these threats may be playing in dissuading Russia—at least so far—from committing an atomic atrocity against Ukraine. Neglected at least outside government has been an urgent legal question: whether it would be legal under U.S. law for the President to order the military to punish Russia for nuking Ukraine. That is the focus of this essay. 

John Quigley
Prelude to Mayhem: The Failure of International Efforts to Prevent War in Ukraine

The author served as Legal Expert in Ukraine in 1994–95 under the Organization for Security and Cooperation in Europe as the OSCE endeavored to negotiate an autonomy status for Crimea within Ukraine. The OSCE work was part of its broader effort to protect groups of ethnic Russians who were rendered minority populations as result of the breakup of the USSR. Crimea’s population is predominantly Russian. The OSCE perceived that resentment against ethnic Russians in the newly independent states was a source of political instability that could lead to war. Crimea was part of Russia from tsarist times, having become connected to Ukraine administratively only mid-twentieth century. The OSCE efforts were not successful. Ukraine did not grant substantial autonomy to Crimea. In this Article, the author gives an account of the OSCE effort, from the perspective of a participant: how the project was approached, how the parties reacted, and the reasons for the ultimate failure. The Article raises the question of whether more could have been done to avert the 2022 war in Ukraine 

Yvonne M. Dutton
Investigative Mechanisms and Tools for Ukraine: Exploring the Consequences for Universal Jurisdiction

Russia’s invasion of Ukraine in February 2022 has prompted a vigorous response from the international community seeking to ensure that those who have committed—and continue to commit—horrendous atrocities in the country are held accountable. National prosecutions based on universal jurisdiction can help fill accountability gaps and aid in the fight to end impunity for serious international crimes. This Article, however, does not foresee a watershed moment for universal jurisdiction because of these new mechanisms and tools for gathering and preserving evidence documenting atrocities in Ukraine. As discussed below, evidentiary challenges are but one obstacle preventing states from exercising universal jurisdiction. Thus, consistent with the historical evidence, this Article expects that the number of universal jurisdiction cases will continue to be relatively small and that the bulk of those cases will include some nexus to the offense or be against lower-level perpetrators who are found present in the foreign state

Anete Pajuste & Anna Toniolo
Russian Invasion of Ukraine: The Role of Private Sanctions

Following Russia’s invasion of Ukraine in February 2022, Western Nations have imposed an array of severe sanctions with the goal of thwarting Russia’s ability to finance the war. While in modern history economic sanctions are used with great frequency, the novelty of the war in Ukraine is represented by the first massive use in a warfare context of private sanctions, meaning sanctions decided by private companies (also called “self-sanctioning”). This paper examines private sanctions as a new geopolitical tool, studying how they interact with economic sanctions and analyzing both the factors that can encourage and inhibit their use 

Rachel E. VanLandingham
Courtroom as War Crime: Ukraine’s Military Justice Struggle

This essay explores the risk of courtroom war crimes occurring during the Russia v. Ukraine armed conflict: war crimes committed by failing to provide fair trials. While Russia’s battlefield atrocities have received great attention—as has the use of international criminal tribunals in response—what hasn’t received sufficient regard is the nascent Ukrainian quest for accountability for Russian war crimes within Ukraine’s domestic criminal courts. This essay sets the scene for such discussion by contextualizing it within international humanitarian law, specifically the Geneva Conventions’ procedural war crime of unfair trial, the Conventions’ assimilation doctrine, and their presumption of military courts 

Christine Abely
Facilitating Humanitarian Aid Amid Sanctions

The sanctions imposed against Russia after its 2022 invasion of Ukraine were historic in their scope and coordinated nature across multiple jurisdictions. These sanctions, however, posed the same challenge that had accompanied other wide-ranging sanctions programs in the past: ensuring that the sanctions did not impact the supply of food, medicines and medical devices, or otherwise trigger disastrous human consequences. Ensuring humanitarian aid to Ukraine became deeply important following the invasion, as the invasion itself created a massive need for humanitarian assistance within Ukraine and to Ukrainian refugees. Minimizing sanctions’ impact on humanitarian assistance is also important to improve the situation of other heavily-sanctioned areas around the world, which have faced suffering where the large-scale presence of sanctions dissuades parties from the supply of essential humanitarian items and services to those areas. This Essay analyzes the efforts made by the United Nations, the European Union, the United States, and other jurisdictions following the imposition of the 2022 sanctions against Russia to help promote the continued flow of humanitarian aid to Ukraine and to improve the provision of humanitarian assistance around the world. 

Mark Nevitt
Environmental War, Climate Security, and the Russia-Ukraine Crisis

This Article addresses the Russia-Ukraine conflict’s broad implications for energy security, climate security, and environment protections during wartime. I assert that in the short-term the Russian-Ukraine war is poised to hinder much-needed international climate progress. It will stymie international decarbonization efforts and cause greater uncertainty in other climate-destabilized parts of the world, such as the Arctic. While Russia has become a pariah in the eyes of the United States and other Western nations, it has forged new partnerships and capitalized on new, lucrative energy markets outside the West and Global South. But in the long term, the global renewable energy transition will accelerate as nations realize the economic and national security risk when relying upon Russia and similarly unreliable petrostates. National security is energy security. 

Dan Maurer
Congress and the Operational Disciplining of the Use of Armed Force: Are Rules of Engagement Within the Preclusive Core of the President’s War Powers?

This symposium contribution poses single question: does the Constitution permit Congress to dictate operational rules of engagement (ROE) binding on the Department of Defense, thus restricting the battlefield discretion of the Commander-in-Chief and the military chain-of-command, or is the power over such rules solely within the reach of the President? The answer is far from obvious. The question seems to have been lying dormant at the busy intersection of domestic security law, policy, and international laws of war. Scholars exploring the fringe edges of constitutional war powers have not yet located it; courts expounding separation-of-powers principles oversimplify war-waging concepts and so have not yet dug in this soil; Executive Branch lawyers have sped right past this question on their way to advocating for nearly unilateral presidential authority over the conduct of hostilities. The military’s intuitive assumption that the Rules of Engagement are the province of the Executive Branch alone, if only because it is presently inconceivable for Congress to do so and because the ROE have always had their source at the Pentagon, is wrong. To see why the counter-intuitive answer is right—that Congress may constitutionally exercise authority over these rules—this article relies on the contemporary international crisis in Eastern Europe to frame this domestic separation of war powers problem 

Elena Chachko
Virtue Sanctioning

The war in Ukraine ushered in a new generation of critical sanctions scholarship. One line of criticism focuses on sanctions’ rule of law deficits. Another highlights the risk of unintended consequences. And a third rejects the sanctions enterprise altogether as an artifact of unjust global power imbalances and colonial legacies. Mapping out these critiques, this essay asks if there is anything left to defend about the modern practice of economic statecraft. I argue that sanctions are not merely a form of opportunistic virtue signaling by the world’s powerful. They serve important functions in the global order as one of the few remaining non-military avenues for articulating international norms. Yet the utility of sanctions does not negate their flaws. I argue that the debate that the Russia sanctions have spurred also charts a roadmap for reform 

Heidi R. Gilchrist
Ukraine, Moral Outrage, and International Law

This paper aims to begin the exploration of emotion, specifically moral outrage, in international law. It uses the Russian invasion of Ukraine as a focal point. It addresses the question whether the international community can harness the incredible moral outrage at the unprovoked Russian invasion of Ukraine to hold Russia accountable. The international community has expressed extreme moral outrage over this clear violation of international law; but acting upon such outrage has proven difficult as the international community faces entrenched power structures, nuclear weapons, and oil supplies. No court can currently hold Russia accountable. President Biden has expressed his own moral outrage, telling reporters that Putin “cannot remain in power.” President Macron of France criticized Biden’s expressions of moral outrage, saying, “I am prudent with terms today.” Should we—political actors, journalists, academics—express our moral outrage?  

Julia Spiegel
Foreign Affairs Federalism: Ukraine and Beyond

What role do U.S. states and localities play in foreign affairs? Should local governments serve as sideline observers on matters of foreign policy? Occasional cheerleaders for federal actions when called upon to voice support? An oppositional force when the federal government, in the view of those U.S. states or localities, has gone astray on a foreign affairs issue? For decades, the courts have largely viewed foreign affairs as the prerogative of the federal government, leaving little room for U.S. states and localities to engage in the foreign policy arena. Although courts have held, and observers may assume, that U.S. states and localities are at best peripheral to foreign policymaking, I show that subnational governments can and do often play a central role in foreign affairs—in Ukraine and beyond.

Michael R. Siebecker
Democracy, Discourse, and the Artificially Intelligent Corporation

Does the ascendance of the artificially intelligent corporation threaten the integrity and legitimacy of democracy? The question seems particularly important as the 2024 presidential election approaches. Hardly a day passes without a new report regarding the disruptive impact of harnessing artificial intelligence (“AI”) technologies. The concern about AI’s destructive impact gets exacerbated by the increasing dominance of corporations in politics. This Article argues that the proliferation of AI combined with the increasing dominance of corporations in our society calls for revamping basic principles of corporate governance. In particular, the Article examines whether interpreting corporate fiduciary duties through the lens of political “discourse theory” could better ensure corporate practices meaningfully align with the preferences of shareholders and other corporate stakeholders. Considering some of the most important decisions governing our daily lives already get made behind boardroom doors rather than in the public sphere, the rapid integration of AI into corporate decision making and operations threatens the very legitimacy of our democratic society. Without reinvigorating governance structures around democratic discourse, we might surrender political sovereignty to artificially intelligent corporations 

Bijal Shah
A Critical Analysis of Separation-of-Powers Functionalism

The separation of powers, and the narrow formalist/functionalist tension on which this framework rests, is in need of moral grounding. A critical legal perspective could enable administrative law and separation-of-powers scholars to better articulate overlooked problems, stakes, and possibilities, as a theoretical, normative, and prescriptive matter. This essay begins the work of integrating the insights of critical theory into the separation of powers. This essay is not, however, a critique of formalism, in the vein of conventional critical legal studies. Rather, this essay centers on functionalism. By employing a critical—not formalist—perspective, this essay questions separation-of-powers functionalism’s capacity both to further its own conventional purposes, and to support administration that benefits people. This essay also considers how separation-of-powers functionalism may lead to underexamined moments of branch aggrandizement. 

Rebecca A. Delfino
The Deepfake Defense—Exploring the Limits of the Law and Ethical Norms in Protecting Legal Proceedings from Lying Lawyers

Currently, no rule of procedure, ethics, or legal precedent directly addresses the presentation of the “deepfake defense” in court. This article addresses matters that prior academic scholarship has not yet examined. It will explore the contours of the deepfake defense, locating it within the historical and current framework of lawyers’ efforts to fabricate and manipulate evidence and challenge the authenticity of the evidence. The article will also consider the laws and the practice norms to curb that misconduct. This examination implicates the model rules of professional conduct, the rules of procedure, and the substantive law. It will also propose reconsidering the ethical rules governing candor, fairness, and the limits of zealous advocacy and urge a re-examination of the court’s role in sanctioning conduct under the rules of procedure. Thus, this article will start that conversation and offer proposals to guide the way forward for lawyers and courts as they traverse this new technological landscape. 

Steven L. Schwarcz & Robert Bourret
Fractionalizing Investment Securities: Using FinTech to Expand Financial Inclusion

Recent innovations in financial technology, or “FinTech,” are enabling the fractionalization of investment securities, such as shares of stock and bonds. We explain how this fractionalization can fundamentally expand financial inclusion both for investors and for businesses, including small and medium-sized enterprises (SMEs). Using the fractionalization of investment securities as a model, we also counter the argument that FinTech-enabled transactions should not need regulation because they are governed by mathematical algorithms under so-called smart contracts. Additionally, we derive and test a regulatory framework to identify and help to mitigate the risks caused by fractionalization. In the process, we also explain and de-mystify smart contracts, decentralized finance (“DeFi”), and other fundamental, but often confusing, concepts associated with FinTech.

Senator Sheldon Whitehouse
Knights-Errant: The Roberts Court and Erroneous Fact-Finding

This Article examines the Supreme Court’s recent penchant for factfinding, both in light of traditional views of where fact-finding belongs in the judiciary, and in light of our constitutional separation of powers. Generally, the federal adversarial system leaves fact-finding to trial courts. This Article contends that this assignment provides a separation of powers restraint on judicial activism, and that recent violations of that historic practice allowed extra-record judicial adventuring outside proper constitutional bounds.

In Shelby County v. Holder and Citizens United v. FEC, the Court’s fact-finding was not only inappropriate for a reviewing court, but also erroneous—indeed clearly so. This Article shows how events have discredited the fact-finding, and how the Court has refused to reconsider its errors. Recent decisions in Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Ass’n v. Bruen, and Kennedy v. Bremerton School District also stand on dubious factfinding by the Court, and the former two cases invite yet further appellate fact-finding—into “history and tradition.” This Article argues that false fact-finding provided the analytical means to deliver victories for identifiable partisan interests in these cases.

These cases, the false fact-finding undergirding them, the persistence of the erroneous facts, and the policy consequences of the uncorrected errors, together create a new predicament requiring attention by academia, lower courts, and the other branches. This Article proposes theories and actions that would defend our government against a Court eager to aggrandize judicial power to political ends.

James Alm, Jay A. Soled & Kathleen DeLaney Thomas
Multibillion-Dollar Tax Questions

Tax compliance in the United States historically hovers in the 80 percent range, costing the nation approximately half a trillion dollars annually in uncollected tax revenue. To foster greater tax compliance, the Internal Revenue Service (IRS) should employ whatever tools are at its disposal. Standard deterrence theory argues that increasing the audit rate and imposing stiffer penalties would foster greater tax compliance. There are political headwinds, however, that strongly suggest that these approaches are not currently viable. Instead, there is a low-cost method that could yield greater tax compliance. Drawing on recent and compelling social science research, the IRS should ask more information-revealing questions on tax returns. By engaging in this important exercise of strategic inquiries, dual benefits are likely to emerge: taxpayers would be more likely to report honestly to avoid acts of commission (e.g., lying); and the IRS would be in a better strategic position because it would possess additional, relevant information on taxpayer activities.

Christopher Buccafusco, Daniel Hemel & Eric Talley
The Price of Fairness

The COVID-19 pandemic led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it reawakened a debate about whether and how to regulate “price gouging”—a controversy that continues as inflation has accelerated even as the pandemic abates. Animating this debate is a longstanding conflict between laissez-faire economics, which champions price fluctuations as a means to allocate scarce goods, and perceived norms of consumer fairness, which are thought to cut strongly against sharp price hikes amid shortages. This Article provides a new, empirically grounded perspective on the price gouging debate that challenges several aspects of conventional wisdom.  

Jeannette Cox
The “Essential Functions” Hurdle to Disability Justice

Courts are increasingly transforming the Americans with Disabilities Act’s inclusive “qualified individual” definition into a hurdle disabled people must surmount before they may access the ADA’s protection. Courts rationalize imposing this “essential functions” hurdle by stressing that the ADA defines “a qualified individual” as a person who can do a particular job’s “essential functions” with or without a reasonable accommodation. This superficial reading of the ADA fundamentally misunderstands the function of the ADA’s unique “qualified individual” definition. Properly understood, the ADA’s “qualified individual” language does not restrict the scope of the ADA’s protected class. 

Pratheepan Gulasekaram
Immigration Enforcement Preemption

The Supreme Court’s 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona’s omnibus enforcement law.  The landmark decision seemed to have settled the Court’s approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas’s prosecutions of noncitizens who used stolen identities to procure employment in violation of federal immigration law. In so doing, the majority opinion took aim at Arizona’s central premise, rejecting the relevance of presidential enforcement in immigration preemption. This Article provides an urgently needed reappraisal of immigration preemption in the wake of Kansas

David Landau
Rethinking the Federal Emergency Powers Regime

Emergency has assumed central importance in the United States legal system. In 2019, President Trump declared an emergency at the southern border after Congress declined to fund his wall; critics responded with legal challenges and proposed reforms to the statute he invoked, the National Emergencies Act (NEA). Emergency powers have also played a key role during the COVID-19 pandemic. This Article conducts a comprehensive survey of emergency powers in the United States. It shows that the NEA is only one among many grants of authority presidents can call upon in a crisis, alongside other emergency schemes, specially delegated statutory power, non-emergency statutes, and inherent executive authority. It argues that the United States’ fragmented emergency powers scheme raises not only well-known risks of overreach—presidents abusing emergency authority to gain power or erode democracy, but also less appreciated risks of underreach—where presidents are unwilling or unable to deal adequately with a crisis 

Portia Pedro
The Myth of the “Nationwide Injunction”

 A growing number of scholars, judges, and Justices are debating the permissibility and propriety of relief that they are calling “national injunctions” or “nationwide injunctions.” Yet it is not clear that a category of “nationwide injunctions” is meaningful or even exists. I provide a comprehensive taxonomy of the challenges to “nationwide injunctions,” which I divide into subcategories of jurisdictional and prudential concerns. Then, I suggest that “nationwide injunctions” skeptics’ criticism, and even the concept of a “nationwide injunction,” are muddled due to the incomplete and skewed framing of the discussion. I propose exploring and engaging several, until now, ignored factors to develop a more robust understanding and conversation about the targeted injunctions, their implications, and the potential implications of decreasing or eliminating the targeted injunction as a form of relief in civil litigation. 

Noah Smith-Drelich
Funding the Police

For all the discussion of defunding the police, far less attention has been given to how the police are funded. This Article shines a light on the wide range of sources, public and private, from which police draw their funding. This examination complicates the widely accepted notion of police as locally controlled and wholly public entities. Even when police policymaking remains ostensibly in local hands, funding from nonlocal or nonpublic sources will distort the incentives underlying policing decisions.  This Article examines the significant influence of external funding on the police, articulating the role that the source of police funding plays in police control and accountability. I conclude by proposing two novel reforms, each of which could be adopted under current law. 

Louis J. Capozzi III
The Past and Future of the Major Questions Doctrine

In West Virginia v. EPA, the Supreme Court held that administrative agencies must point to clear congressional authorization when they issue economically or politically significant regulations. This rule, usually called the “major questions doctrine,” will be an important part of administrative law for the foreseeable future. And it has the potential to dramatically reduce the power of administrative agencies by preventing them from claiming new powers—unless Congress passes updated laws addressing new problems. However, the major questions doctrine has been subject to substantial criticism from academics. Scholars frequently question its legitimacy, claiming that the Court fabricated the doctrine within the past few decades as part of an anti-administrative state agenda. Others argue that the doctrine is unworkable, particularly because courts will struggle to differentiate between major and nonmajor questions. This Article contends that both criticisms are overstated. First, this Article demonstrates that the major questions doctrine has a longer and more robust history than most have appreciated.

Michael Z. Green
Black and Blue Police Arbitration Reforms

Empirical studies suggest that police disciplinary actions warrant reversal by arbitrators due to department errors and procedural limits imposed by civil service and union contract provisions. Arbitrators must adhere to these limits in proceedings offering little public transparency based upon parameters set by the parties. After seeing little to no literature defending police arbitrators, this Article embraces police arbitration and offers reforms that give Black police officers a voice in an overall more transparent process. This Article also proposes that the parties negotiate agreements to consider public values to deliver a win-win result to transform what can be understood as just cause for a disciplinary action in a police labor arbitration where race matters.

Richard Murphy
A Zone for Nonstatutory Review of Constitutional Claims

Suppose a hotelier competes with the President of the United States, who has a side job in the hospitality business. The hotelier is upset because foreign governments are booking stays at the President’s hotels. Might the hotelier successfully sue to enjoin this competition because the President’s conduct violates the Foreign Emoluments Clause of the Constitution? To do so, the hotelier will need to run a gauntlet of threshold requirements, including demonstrating that they have a “cause of action.”  This Article defends a simple resolution to this problem: Courts should use the same “zone-of-interests” test that they have developed to determine whether a plaintiff can invoke the Administrative Procedure Act’s statutory cause of action to determine whether a plaintiff can invoke a nonstatutory cause of action for injunctive relief to enforce a constitutional provision. 

Melissa A. Hammer
Unhoused Reentering Elders: Addressing Statutory, Regulatory, and Discretionary Barriers to Federal Housing Assistance for Seniors with Criminal Records

Housing policies that exclude people with criminal records “constitute one of the most significant barriers to reentry.”18 While some research articulates the barriers to housing faced by people with criminal records generally,19 there has not been much research on the barriers faced by seniors with criminal records in particular. This Note aims to help fill this gap in the literature in preparation for the projected increased levels of seniors with criminal records who will require housing and housing assistance in the near future.

Troy A. Rule
Drones, Airspace, and the Sharing Economy

Confusion regarding the scope of landowners’ rights to exclude low-flying objects from above their land has hindered commercial drone operations in the United States for more than a decade. This Article describes how policies that embrace rather than ignore landowners’ property interests in the low airspace above their land could accelerate the widespread deployment of commercial drone technologies. By enacting new laws that affirm and more clearly define landowners’ airspace rights, legislators could unleash market forces to more efficiently and equitably open up commercial drone activity throughout the country 

Paul Ohm & Nathaniel Kim
Legacy Switches: A Proposal to Protect Privacy, Security, and the Environment from the Internet of Things

The Internet of Things (IoT) promises us a life of automated convenience. This convenience comes at a significant cost. IoT devices listen to, record, and share our behavior, habits, speech, social interactions, and location minute-by-minute, 24/7. This Article proposes a novel, simple, and concrete solution to address all of these problems. 

Raymond H. Bresica
Course Correction: Abolition, Grand Strategy, and the Case Against Golf

Over the years, social movements have sought to change embedded institutions and deployed different strategies in the pursuit of that change, sometimes achieving success, sometimes failing. Choosing the right grand strategy to change a culturally, economically, and politically institutionalized system can often mean the difference between such success and failure. This Article is an attempt to develop an understanding of the appropriate time to use one grand strategy over another to reform institutions. It uses the case study of what I call the golf course problem to explore the considerations that should go into the choice between grand strategies 

William W. Berry III
Unconstitutional Punishment Categories

Two terms ago, the Supreme Court decided Jones v. Mississippi, in which it upheld but arguably narrowed its Eighth Amendment categorical bar on the imposition of mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court held that the Eighth Amendment did not require a fact-finding prerequisite to the imposition of JLWOP sentences. The opinion, however, did not speak to the question of whether other categories of JLWOP sentences might violate the Eighth Amendment. The Court has extended some of the categorical punishment bars to JLWOP, covering three of the unconstitutional capital punishment categories—mandatory JLWOP sentences, JLWOP sentences for adult rape, and JLWOP sentences for child rape. The open question is whether the other three unconstitutional death penalty categories under the Eighth Amendment also apply to JLWOP sentences. This Article explores that doctrinal gap. 

Michael R. Siebecker
The Incompatibility of Artificial Intelligence and Citizens United

In Citizens United v. FEC, the Supreme Court granted corporations essentially the same political speech rights as human beings. But does the growing prevalence of artificial intelligence (“AI”) in directing the content and dissemination of political communications call into question the jurisprudential soundness of such a commitment? Would continuing to construe the corporation as a constitutional rights bearer make much sense if AI entities could wholly own and operate business entities without any human oversight?

Eloise Pasachoff
Executive Branch Control of Federal Grants: Policy, Pork, and Punishment

High-profile controversies in each of the last several administrations have involved the extent of Executive Branch control over federal grants. These challenges were particularly pronounced during the Trump Administration, when it seemed that each month brought a new grant-related controversy, from the opening week’s attempts to withhold funding from sanctuary cities to the last months’ effort to deny funding to “anarchist” jurisdictions. The aftermath of the Trump Administration thus provides an important opportunity to assess the bounds of Executive Branch control over federal grants writ large.

Christopher C. French
Insuring Intentional Torts

This Article analyzes the competing public policies and arguments in favor of and against allowing insurance to cover intentional torts. In doing so, it discusses numerous lines of liability insurance that expressly cover various types of intentional torts. It then explores whether the theoretical foundation underlying the public policy against allowing liability insurance to cover intentional torts—that intentional misconduct is effectively deterred and punished by disallowing coverage—is supported by empirical evidence.

Mirit Eyal-Cohen & Ana Santos Rutschman
Promoting Vaccine Innovation

As society grows to understand the need to promote innovation, policymakers try to employ an arsenal of policy tools, from traditional intellectual property (“IP”) to newer tools such as grants, regulatory vouchers, and prizes. This Article argues that these frameworks crowd out certain types of investments in innovation projects that have a high social value. Vaccine innovation is a case in point. Despite the immense socioeconomic benefit of vaccines, existing policies have been limited in fostering investments in this space.

Matthew Tokson
Telephone Pole Cameras Under Fourth Amendment Law

In a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.

Christopher Slobogin
Suspectless Searches

Traditional searches of persons, houses, papers, or effects usually begin with an identified suspect or person of interest. But today police are increasingly using technology to engage in what might be called suspectless searches—searches that try to identify a perpetrator—using techniques like geofencing, TiVo droning, DNA matching, automated license plate readers, and facial recognition technology. The Fourth Amendment should govern use of such techniques. But application of its reasonableness requirement to suspectless searches should not always require a warrant or probable cause, given the minimal intrusion often associated with them.

Wayne A. Logan
Citizen Searches and the Duty to Report

Today, law enforcement benefits from an ever-increasing abundance of information sources. Technologies such as automated license plate readers and facial recognition, for instance, allow for the identification and tracking of individuals over long periods of time, information that is often combined with other data to provide a comprehensive understanding of surveilled individuals (indeed, entire communities). Meanwhile, private companies and “data brokers” augment the data flow, usually free of Fourth Amendment constraints. This paper considers another information source: private citizens.

Stephen E. Henderson
In Celebration of Dissents (and Lengthy Textbooks): How Digital Became Different for the Fourth Amendment and Why It Is Time for a Real Warrant Default

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges and scholars ought to appreciate how it charted the path we have now trod.

Fareed Nassor Hayat
Dignity or Death: The Black Male Assertion of the Fourth Amendment

Much of Fourth Amendment jurisprudence and scholarship places abstract principles against unreasonable searches of persons and/or things. But when law enforcement officials inject themselves into the lives of Black men, those interactions extend beyond abstract concepts, and fundamental questions of dignity—or alternatively death—emerge. Every time police officers stop Black men while walking, driving, or, in their homes, Black men are triggered into a prescribed exercise of submission or a rebellious exercise of right. Black men must instantaneously decide between preservation or potential death— because any perceived affront to police dominance is met with a show of force, arrest, imprisonment, brutality, and the possibility of death.

Andrew Guthrie Ferguson
Why Digital Policing Is Different

Many Fourth Amendment debates boil down to the following argument: if police can already do something in an analog world, why does it matter that new digital technology allows them to do it better, more efficiently, or faster? This Article addresses why digital is, in fact, different when it comes to police surveillance technologies. The Article argues that courts should think of these digital technologies not as enhancements of traditional analog policing practices but as something completely different, warranting a different Fourth Amendment approach.

Spencer N. Kluth
Stealing More than Just Designs: Utilizing Environmental Law as a Remedy to Design Piracy by Fast Fashion Brands

Under current intellectual property law in the United States, these pirated designs produced by fast fashion brands are entirely legal. This piracy can lead to the death of small or emerging designer brands due to the economic devastation of having their design available for a significantly cheaper price. Legal protection for designs is currently based on a patchwork of protection through the combination of copyright, trademark and trade dress, and patent law. This patchwork, however, is largely ineffective.

Logan Householder
A New Stage for Grievances?: Members-Only Grievance Insurance and the Duty of Fair Representation Post-Janus

Alternative visions for the future of public labor unions have proliferated in the wake of the Janus decision. The labor movement has struggled to put forward a new model that preserves the public union’s coveted position as exclusive representative for all employees in a given workplace, while also combatting the free rider problem that inspired agency fees in the first place. Members-only representation, for example, would immediately solve the free rider issue, but would necessarily forfeit the union’s status as exclusive representative.

Michael T. Fahy
Administrative Prison Terms and the Cycle of Carceral Legislating

Over the past half-century, Ohio lawmakers have enacted a patchwork of criminal sentencing reforms, vacillating between definite and indefinite schemes and navigating court rulings striking down unconstitutional aspects of the state’s criminal punishment system. Most recently, the Ohio General Assembly created a new sentencing system for some felony offenses under which additional prison terms can be added to an incarcerated person’s sentence solely at the discretion of the prison bureaucracy that imprisons them. This novel scheme, enacted through 2018 legislation now known as the Reagan Tokes Law (“RTL”), empowers prison administrators, rather than judges...

Abraham J.B. Cable
Regulating Democratized Investing

Robinhood and its imitators activated millions of new investors. Perhaps we should applaud them for finally resurrecting the retail investor after a decades-long decline. There are, however, reasons for concern. Robinhood racked up record fines in the run-up to its IPO. Its users are young, inexperienced, and prone to speculating in risky investments. Given these concerns, this Article considers how to protect this new class of “ultra-retail investors” while also leaving regulatory breathing room for these new market participants.

Meghan E. McDonnell
Ensuring Fair Competition in the Midst of the Streaming Wars

In December 2020, Warner Bros. shocked the country with its unprecedented announcement that it would be releasing all of its new 2021 movies on its streaming service, HBO Max, on the same dates as the theater premieres of the films. While many speculate that this is a temporary solution in response to changes in consumer habits due to the pandemic, those in the film industry know that this pivot was inevitable and could be here to stay.

Charquia Wright
Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters

Law students are uniformly taught that federal circuit courts cannot and will not overrule Supreme Court precedent under any circumstance. This is not true. They can, with little fear of corrective mechanisms like en banc oversight, Supreme Court review, or congressional override. And in certain circumstances, they are bound to do so by the law of the circuit. Under the prudential law of the circuit doctrine in-circuit precedent binds circuit courts, even in scenarios where conflicting long-standing Supreme Court precedent exists. Circuits can only depart from erroneous circuit precedent if a later-decided SCOTUS or en banc decision obviates the circuit precedent.

Matthew Kim
For Appearance's Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession

How can we restore the public’s faith in government institutions, particularly the courts? With the public’s opinion of the legal system at an all-time low, the legal profession faces a crisis of confidence. This Article argues that the “appearance of impropriety” standard should be categorically applied to regulate all members of the legal profession to restore the public’s faith in the profession.

Jeremy Bearer-Friend, Ari Glogower, Ariel Jurow Kleiman & Clinton G. Wallace
Taxation and Law and Political Economy

The Law and Political Economy (LPE) project seeks to reorient legal thought by centering considerations of power, equality, and democracy. This reorientation would supplant approaches to legal thought that prioritize efficiency and neutrality, and that imagine a pre-political market “encased” from legal scrutiny or intervention.

Deborah L. Brake
Theory Matters—And Ten More Things I Learned from Martha Chamallas About Feminism Law, and Gender

Martha is quintessentially a feminist legal scholar—with each of these terms equally defining. Her scholarship brings a critical feminist lens to the law, and a legal analysis to feminism. Because employment discrimination is a major site of law’s engagement with gender, it is the subject of much of Martha’s scholarship. But hers is a body of work that transcends any single doctrinal category. Martha’s explorations of law...

Scott Skinner-Thompson
Anti-Subordination Torts

In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.

Garry W. Jenkins
Introduction: A Festschrift for Professor Martha Chamallas

It is my honor to pay tribute to my long-time senior colleague, treasured mentor, and dear friend of almost two decades, Martha Chamallas, upon her retirement from full-time teaching. Simply put, Martha is a wonder. One of the most original and important legal scholars of her generation, Martha has had an impact on law, the legal academy, and, in particular, the public discussion of issues of gender and racial bias that is deep, broad, and lasting. She is a splendid blend of theoretician, humanitarian, and practical lawyer.

Atinuke O. Adediran
Nonprofit Board Composition

This Article addresses a critical gap in the literature and current debates about the composition of nonprofit boards. The law of fiduciary duties and nonprofit governance best practices do not provide sufficient guidance on how to compose boards to empower the communities they serve. And even as the corporate sector is seizing on current important moments to debate the inclusion of employees and racial and ethnic minorities on corporate boards, nonprofit boards are largely left out of these debates.

Peter Lee
Autonomy, Copyright, and Structures of Creative Production

Whether and how copyright promotes creative expression is the central question of copyright law. The standard rationale—that copyright provides economic incentives to create—has attracted sustained critique. While copyright impacts creativity in myriad ways (both positively and negatively), this Article explores an underappreciated organizational mechanism by which copyright contributes to creative expression.

Brent Salter & Catherine L. Fisk
The Fragility of Labor Relations in the American Theatre

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience. Playwrights, represented by the Dramatists Guild, and commercial theatre producers have negotiated collectively for nearly a century, but have done so under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era.

Jerry L. Mashaw
Peter Shane and the Rule of Law

Peter Shane has had a long and varied career and his publications range over a host of topics. But there are common themes that animate many of his articles and books. One of these, and I would argue one of the most important, is a preoccupation with the idea of the rule of law. Or, perhaps I should say, a preoccupation with understanding what the rule of law means and with threats to the maintenance of the rule of law in the American legal system.

Heidi Kitrosser
On Peter Shane's Engaged Excellence

Since I began writing about unitary executive theory in the mid-aughts, I have been deeply influenced by Peter’s work on the subject. Unitary executive theorists maintain that the President must control all discretionary activity within the executive branch. Although unity was embraced by Chief Justice Taft and a majority of the Supreme Court in 1926 in Myers v. United States, the Court soon shifted course...

Harold H. Bruff
Toward a Workable Government

I am honored to respond to Ohio State’s invitation to comment on Peter Shane’s contribution to the field of separation of powers law on the occasion of his retirement. Because his new book, Democracy’s Chief Executive, captures and extends the central themes of his prior work, I will analyze it to shed light on his career more generally.

James J. Brudney
Peter Shane: Looking Back and Looking Forward

In a career spanning decades, Peter Shane has established himself as a Polymath of Public Law. Professors Bruff, Kitrosser, and Mashaw justly celebrate his contributions on separation of powers tensions and on rule of law values. But Peter’s wisdom and teaching extend much further: into telecommunications law, the internet and cybersecurity, the First Amendment, voting rights, war powers, and presidential pardons, to cite a few examples.

Hannah Muller
Dismissive: How Trafficking Survivors Are Held to an Unlawfully High Standard in Seeking Civil Liability Against Hotels and a Proposed Solution

A survivor of human trafficking brings a civil action against the hotel chain that benefited from her exploitation under a federal statute and indirect liability. She claims her pimp rented the hotel rooms for weeks at a time using cash and through the lobby to her hotel room every day. The staff could see physical signs of her abuse and hear loud altercations when these men visited her room. Maid service was never requested during these visits and, when her pimp checked her out, the room was filled with used condoms, sex paraphernalia, and broken objects. Public policy would suggest she should have a valid cause of action against the hotels who facilitated her exploitation. Yet, depending on the state in which she brings her lawsuit, her remedy may be dismissed by the mere granting of a pretrial motion...

Marc Edelman, John T. Holden & Adam Scott Wandt
U.S. Fantasy Sports Law: Fifteen Years After UIGEA

This Article explains how the United States regulates the fantasy sports industry, fifteen years after the passing of the Unlawful Internet Gambling Enforcement Act of 2006. In particular, this Article delves into the subtle but important shift in the connotation of the term “fantasy sports,” which has come to subsume, and arguably be engulfed by, “daily fantasy sports.” In addition, this Article explores new state laws for licensing and taxing fantasy sports operators, the Internal Revenue Service’s recent efforts to apply a federal wagering tax to daily fantasy sports transactions, concerns about market consolidation and antitrust risk within the industry, and emerging industry concerns about cybersecurity, customer identification, and consumer privacy protection.

David A. Dana
Public Nuisance Law when Politics Fails

Public nuisance lawsuits provide a vehicle for litigants to address public problems that legislatures and agencies have sidestepped. The courts have generally rejected such suits, directing litigants back to the very legislatures and agencies that allowed the problems to fester in the first place. This Article proposes a normative framework for judges to evaluate public nuisance claims, balancing democratic legitimacy, technical competency, and the magnitude of the harm. This approach has several important implications, including that courts should stop avoiding reaching the merits of nuisance claims by relying on preemption and abstention doctrines, as they have done with recent claims involving COVID-19, interstate air pollution, and climate change...

John O. McGinnis & Michael B. Rappaport
Presidential Polarization

Because the President represents the median of his or her party, not of the nation, the decisions of the President normally are more extreme than what would emerge from Congress, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Domestically, Congress’s delegation of policy decisions to the executive branch allows the President’s administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties, creating polarization and frustrating the search for political consensus. In the arena of foreign affairs as well, presidential power to engage in military interventions and to strike substantial international agreements on the President’s own authority avoids the need to compromise to achieve political consensus.

A Farewell to Professor and Advisor Christopher J. Walker

It is truly bittersweet to recognize the departure of Professor Christopher J. Walker from The Ohio State University Moritz College of Law.1 He has been an invaluable asset to the Ohio State Law Journal, where he served as faculty advisor from 2017 to 2022. And while we regret to see the conclusion of his tenure as our advisor, we join in celebrating this exciting next step in his academic career.