Digital Commons Network^™

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Faculty Scholarship

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

The Law Of Quitting, Andrew K. Jennings

Faculty Articles

Throughout life, people enter countless positions of authority and trust in relation to one another and the public. These positions include, among many others, being a public official, being a corporate director, and being an employee. Law announces prerequisites for starting such positions, as well as incumbents’ rights and obligations once in them. But no office holds forever. Indeed, incumbents often choose to exit positions before they would otherwise end by expiration, removal, or death. Yet law governs such voluntary relinquishment—often called “resignation” or, more generically, “quitting”—largely as afterthought. That is, law expansively attends how positions of authority and trust …

Fda After Loper Bright, Erika Lietzan

SMU Law Review

Loper Bright Enterprises v. Raimondo, which overruled the Chevron, U.S.A. v. Natural Resources Defense Council decision from 1984, tells us that a court should determine the meaning of all statutory provisions for itself, rather than deferring to the views of the federal agencies that implement those provisions. But the overruling of Chevron may have less of an impact on the U.S. Food and Drug Administration (FDA) than conventional wisdom supposes. Most challenges to FDA action do not concern its statutory interpretations. And the agency prevailed in most cases involving statutory interpretation before the Chevron doctrine took hold. After 1984, …

Uncertain Enforcement And Standing To Sue, Ernest A. Young

Faculty Scholarship

Plaintiffs with strong claims that a law is unconstitutional may yet fail to establish standing when the law is rarely enforced. Other statutes, like Texas’s unusual abortion law, may render challenges difficult by delegating enforcement to private parties who are difficult to identify in advance. Both problems arise from the assumption that the law shapes behavior only through sanctions imposed in enforcement proceedings. This view is mistaken, both jurisprudentially and empirically. Worse, it requires courts to ask two unanswerable questions: How likely is enforcement? And how likely does Article III require it to be? It also asks standing doctrine to …

Corporations’ First Amendment Rights And Algorithmic Cocoons, Sol Murgui Orsucci

Fordham Journal of Corporate & Financial Law

This Note examines how corporate First Amendment doctrine applies to algorithmic systems that curate commercial information and public discourse across online platforms. Courts have increasingly treated ranking, recommendation, and moderation practices as exercises of protected editorial judgment. At the same time, the Court has justified protection for corporate speech in part by reference to listener-centered interests in access to information and competitive comparison. This Note argues that the interaction between these doctrinal strands and contemporary algorithmic intermediation reveals a structural tension. Data-driven optimization can generate individualized informational environments—what this Note terms “algorithmic cocoons”—in which users encounter content, offers, and prices …

Against Doctrinal Siloing: Harmonizing Fiscal Federalism And The U.S. Constitution, David Gamage, Darien Shanske

Faculty Publications

This Essay argues that constitutional law’s treatment of fiscal federalism has fractured into a bewildering collection of doctrinal silos. Federal spending that pressures states, federal preemption of state taxes, the Dormant Commerce Clause, sovereign immunity, Section 5 of the Fourteenth Amendment, and the federal taxing power are all analyzed through distinct tests, even when they implicate the same basic conflict between federal authority and state fiscal autonomy. The result is not just theoretical confusion but inconsistent constitutional answers. Current doctrine can protect states from comparatively modest liabilities while leaving uncertain whether Congress may displace large swaths of state revenue authority. …

My Negotiation Chatbot Toby And Pedagogical Governance, Renee Henson

Faculty Publications

The use of artificial intelligence (AI) chatbots is exploding. Adolescents increasingly prefer interactions with AI companions over peers. Adults rely on these systems for health planning, therapy, administrative assistance, nutrition guidance, and even simulated “romantic relationships.” Individuals and institutions are adopting AI tools at a pace that far exceeds the development of governance frameworks.

I developed Toby for use in my first-year Lawyering: Problem-Solving and Dispute Resolution (“Lawyering”) course to expose students to the dynamics of negotiating against an opposing counsel with a difficult personality—a type of adversary all too common in legal practice, yet difficult to prepare for. Toby …

Boundaries Of Rules: Social Reactions To Legal Intervention, Francesco Parisi

Articles

This chapter examines what happens at the boundaries of rules: when social practices acquire legal recognition, when legal rules seek to reshape social expectations, and when formal and informal enforcement operate together. The conventional economic model treats the expected formal sanction as the principal source of compliance. Although this model provides a fundamental benchmark, it captures only part of the effects of legal intervention. The taxonomy developed here identifies the different ways in which legal, moral, and social incentives may interact. The kinds of public and private enforcement through which individuals express norms shape the additive, nonadditive, and countervailing effects …

Two Questions For School-Choice Funding After Carson, Nicole Stelle Garnett, John A. Meiser

Journal Articles

In a series of recent cases, the Supreme Court of the United States has made clear that the First Amendment's Free Exercise Clause prohibits religious discrimination in public benefit programs. That is, when the government creates a public benefit program, the Free Exercise Clause prohibits it from excluding private entities from participating because of their religious character or status or because they engage in religious conduct. This essay addresses two questions raised left unresolved by these cases and flags a third. The first question is, what is private? The religious nondiscrimination principle applies only when the government aids private conduct. …

Private Rights Of Action For Election Litigation In The Federal Courts, Derek T. Muller

Journal Articles

Election litigation is surging. But just as litigants pursue more election claims in federal courts than ever before, federal courts are growing more skeptical about their authority to hear them. This Essay, a contribution to the 2025 Arnold Lecture at the University of Arkansas Little Rock, William H. Bowen School of Law, examines the narrowing landscape of private rights of action in election law with a particular focus on claims brought ahead of the 2024 election. It traces the Supreme Court's shift toward formalism, the heavy emphasis on remedies found in federal statutes, and the diminishing avenues for private enforcement …

Slices And Lumps: Division And Aggregation In Law And Life, Lee Anne Fennell

Books

No abstract provided.

Sacred Or Sham? Strengthening Judicial Review Of Religious Sincerity Under The Free Exercise Clause Article Title, Montana Martinez

Faculty Scholarship

While the Court has expanded the scope of Free Exercise protections, it has conspicuously failed to articulate how courts should separate sincere religious claims from fraudulent ones. The result is a doctrinal void: any claimant can recast political or philosophical objections as "religious" and demand constitutional protection. The risk is that the Free Exercise Clause, if stripped of any sincerity filter, will collapse into a generalized right to exemption from law. This Article argues that courts can assess religious sincerity without evaluating the truth or validity of the religious belief, and it proposes a framework grounded in the constitutional text, …

Ain’T Nothing Like The Real Thing: How Legal Research Programs Can Provide The Needed Safety Rails For Pro Se Litigants Using Ai In Litigation, Nicole Belbin

Faculty Scholarship

An estimated 92% of legal needs go unmet in America, leaving a growing number of pro se litigants to “manage their own cause.” Between 2000 and 2019, 27% of all civil cases filed in U.S. District Courts, totaling 1,501,079 cases, had at least one party without attorney representation. The legal profession is abuzz about the potential for generative artificial intelligence (GenAI) tools to “smooth out any mismatch between available resources and urgent needs in our court system”; however, “hallucinations” have quickly proved a limitation to reaching this technology’s full potential. The complexity of legal research and analysis increases the chance …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Faculty Scholarship

Campaigns to review Japan’s wartime legacy and legal liability have recurred throughout postwar Japan. While most of these efforts have targeted the Japanese government, an important subset of actors has also focused on the role of Japanese corporations. And perhaps no one played a larger role in directing attention towards Japan, Inc. than Kim Gyeong-seok, a Korean forced laborer in the 1940s turned redress activist in the 1990s. As described in this Article, Kim’s 1991 lawsuit against Nihon Kokan launched the corporate accountability piece of the reparations project, an endeavor that continues to create ripples even now. The Article briefly …

Undermining Discretion: The Selective Attacks On Progressive Prosecutors, Angela J. Davis

Cardozo Law Review

Prosecutors are the most powerful officials in the criminal legal system. They decide whether to bring criminal charges and what those criminal charges should be. These decisions are totally within their discretion. The U.S. Supreme Court has consistently protected the power and discretion of prosecutors in making these decisions, and legal challenges to the exercise of prosecutorial discretion have been largely unsuccessful.

In recent years, a growing number of individuals have successfully run for chief prosecutor on platforms of reducing the prison and jail populations, consistent with public safety. They pledged to use their power and discretion to implement policies …

Rivers Of Sovereignty: The Epa’S New Water Quality Standards Rule As A Potential Channel For Revitalizing Tribal Reserved Water Rights, Mostyn Josty

Cardozo Law Review

This Note explores the federal government’s evolving approach to its obligation to protect tribal reserved water rights through a case study of the Environmental Protection Agency’s (EPA) 2024 Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights rule (the “WQS Rule”). It argues that while the WQS Rule represents a step forward in safeguarding tribal water rights, the legal challenge it faces underscores broader issues of federalism, administrative authority, and the country’s fluctuating commitment to tribal sovereignty. The Note examines the WQS Rule’s legal foundation, its potential challenges, and the implications for tribal self-determination, emphasizing the need for a …

Data Rights For Workers, Pauline Kim, Rachel Leavitt

Scholarship@WashULaw

Workers are subject to immense amounts of data collection on the job, and the algorithmic management tools built with that data can produce negative effects, including deskilling jobs, unstable work hours, reduced wages, and dangerous and degrading working conditions. Workers thus have significant interests how their data are collected and used, and yet they have been excluded from nearly all the recently enacted or proposed data protection laws. Their exclusion stems from data protection’s roots in privacy law and theory, which primarily focused on consumers as data subjects. Current data protection laws, even if expanded to cover workers, would provide …

Primer On Financing Commercial Real Property, Judge John M. Tyson

Campbell Law Review

No abstract provided.

Some Caution About Novel State Constitutional Rights, Nick Brod

Campbell Law Review

No abstract provided.

Beyond Digital Pessimism: How A Focus On Trust Can Enhance Eu Digital Law, Neil M. Richards, Woodrow Hartzog, Claire Boine, Lea Despotis

Scholarship@WashULaw

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.

In this essay, we argue that while laudable, …

Apportioned Direct Taxes, Conor Clarke, Ari Glogower

Scholarship@WashULaw

The Constitution requires that Congress apportion any “direct” tax among the states by population. This once-dormant provision is now the most important constitutional limitation on Congress’s taxing power. Last year, in Moore v. United States, the Supreme Court seriously considered, for the first time in decades, whether to invalidate an Act of Congress as an unapportioned direct tax. While the law survived, Moore has opened a new era in which scholars and policymakers must again take apportionment seriously. Yet the apportionment requirement remains poorly understood.

This Article provides a new perspective on apportionment by examining how Congress and Treasury …

How International Organizations Regulate Lobbyist Access, Melissa (M.J.) Durkee

Scholarship@WashULaw

This chapter explores how international organizations (IOs) regulate lobbyist access through participation frameworks rather than traditional lobbying laws. While no unified international lobbying regime exists, IOs use rules on NGO 'consultation' and 'engagement' to structure access. These rules, rooted in historical practices like the UN's Economic and Social Council (ECOSOC) accreditation system, prioritize representativeness and legitimacy over transparency and accountability. As lobbying increasingly targets international forums, concerns about undue influence (the 'lobbying critique') and insufficient stakeholder inclusion (the 'access critique') have driven divergent reforms: some IOs, like the World Health Organization, have adopted stricter controls; others, such as the GAVI …

Taking Legality Seriously: What The Major Questions Doctrine Is — And Isn't, Andrea Scoseria Katz, Ofra Bloch

Scholarship@WashULaw

The Major Questions Doctrine (MQD), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to “major” actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But this critique misses the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that, while the MQD reflects valid rule-of-law concerns, as applied, it lacks theoretical clarity, consistency and limits. More importantly, the Court itself lacks a theory of what the MQD is. We provide an answer grounded …

Privatising International (Organizations) Law, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the increasing role of private commercial actors within international organizations (IOs) and the implications for international law. Once conceived as state-centred institutions, IOs now routinely involve corporations, trade associations, and philanthropic foundations in lawmaking, policy-setting, financing, and implementation. These actors participate through multiple channels: as observers, delegates, stakeholders, funders, and partners. While private involvement has historical precedents, its contemporary scale and formalization mark a significant transformation in global governance. International law, however, offers little guidance on the boundary between public and private authority, leaving legitimacy concerns unresolved. To evaluate privatization, the article identifies two competing logics: a …

Teaching Constitutional Law: Politics, Democracy And History, Andrea Scoseria Katz

Scholarship@WashULaw

Teaching Constitutional Law in the present era presents unique pedagogical challenges. My students arrive skeptical of the field, doubtful of the Supreme Court’s authority, questioning the relevance of legal methods in determining case outcomes, and perceiving constitutional adjudication as irreducibly political. Rather than dismiss these concerns, I argue that constitutional law professors must acknowledge them directly. Our task is not to restore naïve faith in judicial neutrality (an impossible ideal), but to present students with a vision of constitutional meaning-making—one grounded in politics, history, and democratic politics—in which they can recognize themselves as engaged participants in the future of our …

Sustainability Assurance, Andrew F. Tuch, Luca Enriques, Alessandro Romano

Scholarship@WashULaw

A robust literature examines sustainability disclosures by public corporations, but legal scholarship has largely overlooked the role of third-party assurance—or verification—of such disclosures. This is a notable omission given the extensive literature on the auditing of financial statements, a related form of assurance.

This article responds by examining the role of assurance in sustainability reporting. In keeping with the theme of this symposium volume, it draws on US and EU law. Our discussion begins in Part I with sustainability disclosures, focusing on the requirements and practices of public companies. In Part II, we introduce sustainability assurance as well as assurance …

Foreword: The Constitution And Public Finance—Why Now And Why Ever?, Conor Clarke, Eric Kubo

Scholarship@WashULaw

This paper introduces the Washington University Law Review’s 2026 symposium issue on “Taxing, Spending, and the Constitution.” We situate the symposium’s ten papers within three interconnected developments in public finance law: the Supreme Court’s recent decision on the Sixteenth Amendment in Moore v. United States; the Trump Administration’s assertions of executive control over appropriated funds; and the use of emergency and trade statutes to justify sweeping tariff authority.

We also step back to ask why constitutional issues in public finance—long treated as a technical backwater—have become such a central site of doctrinal and political conflict. We offer several explanations beyond …

Tax Exceptionalism After Loper Bright, Conor Clarke, Noah Hertz Marks

Scholarship@WashULaw

We consider how tax regulations should be reviewed in a post-Chevron world. In 2011, the Supreme Court’s Mayo Foundation decision subjected Treasury regulations to ordinary Chevron deference, rejecting National Muffler’s tax-specific standard of review and declaring that the Court was “not inclined to carve out an approach to administrative review good for tax law only.” In 2024, Loper Bright overruled Chevron. This Article asks what Loper Bright means for Mayo—and, in turn, for National Muffler.

We reject the simple inference that Loper Bright automatically revives National Muffler. But we argue that National Muffler nonetheless …

C.A.S. Full Assessment Report: State Of Florida Government Portal, Delante Clark

Graduate Scholarship and Creative Works

The purpose of this assessment is to evaluate the cognitive overhead, transparency, and attentional integrity of

official State of Florida digital interfaces using the Cognitive Attentional Standards (C.A.S.) platform.

While the Florida Digital Bill of Rights (FDBR) establishes strict regulatory guardrails for consumer data

transparency, tracking opt-outs, and attentional safeguards, the State of Florida explicitly exempts its own

government agencies, public universities, and non-profit entities from complying with these rules.

This assessment serves to investigate the tension between legislative intent and government execution. By

analyzing public sector websites through the C.A.S. platform, this project will establish a “state-enforced vs.

state-executed” …

The Law And Economics Of Resilience, Doni Bloomfield, Jeff Gordon

Faculty Scholarship

The field of law and economics has long studied externalities, the costs and benefits actors create and yet fail to internalize. But scholars have largely overlooked a set of externalities that lead firms across the economy to systematically underinvest in resilience, with macroeconomically harmful consequences. In this Article, we address this gap with a theory of the law and economics of resilience, by which we mean the ability of markets to reliably and optimally meet demand for goods and services without extreme price fluctuations. 

We argue that corporate resilience is determined by a conflict between two basic forces: the resilience …