Ohio State Law Journal

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.  

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. 

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. 

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 

 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. 

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. 

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.

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.

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. 

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.

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 

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. 

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 

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. 

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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...

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.

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.

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.

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.

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.

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...

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.

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.

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.

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.

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.

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.

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...

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.

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.

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...

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.

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...

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.

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.