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Importance And Interpretive Questions, Ilan Wurman

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In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach antiadministrativist results. One can explain at least some of the cases, however, in a way that …

Ot '22 And The Path Of Administrative Law, Ilan Wurman

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This symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to …

Legal Endearment: An Unmarked Barrier To Transforming Policing, Public Safety, And Security, Emmanuel Mauleón

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The problems of racialized policing have come into renewed focus over the past decade. The advent of viral bystander videos has not only forced a popular confrontation with moments of both routine and extraordinary policing violence but also sparked protests, uprisings, and grassroots movements to challenge current practices in policing and determine what must be done to transform it. And yet, even after the mobilization of one of the largest racial justice movements in American history, transformative change remains elusive. This Article offers an answer to this puzzle by foregrounding White people’s collective relationship with policing and describing how this …

Interpreting The Ambiguities Of Section 230, Alan Rozenshtein

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As evidenced by the confusion expressed by multiple Justices in last Term’s Gonzalez v. Google, there is little consensus as to the scope of Section 230, the law that broadly immunizes internet platforms from liability for third-party content. This is particularly striking given that no statute has had a bigger impact on the internet than Section 230, often called the “Magna Carta of the internet.”

In this essay I argue that Section 230, despite its simple-seeming language, is a deeply ambiguous statute. This ambiguity stems from a repeated series of errors committed by Congress, the lower courts, and the Supreme …

The Original Presidency: A Conception Of Administrative Control, Ilan Wurman

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The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate offcers. That poses a possible textual problem: it seems to make the Opinions Clause superfuous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove offcers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there …

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

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The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

The Right To Fail, Alexander Boni-Saenz

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In 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own …

When An Indicted Candidate Wins The Presidency: What Happens To The Trials If Donald Trump Wins The Election?, Richard Painter, Claire Finkelstein

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For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department …

The Three-Verdict Problem, Jack Whiteley

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!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that …

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

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Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …

Why Mass Incarceration Is Uniquely American, Michael Tonry

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Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

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Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

The Sweep And Force Of Section Three, William Baude, Michael Paulsen

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Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by …

The Doj And Ftc's Misguided Attack On Mergers, Richard Epstein

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This Article reviews two recent joint statements by the DOJ and FTC. The first was their request for information on their proposals to “strengthen” the antitrust laws on mergers. The second was the July 2023 release of new draft guidelines which were subject to many comments, often critical of the new regime. The difficulties with both documents start with the initial premise of their inquiries, which falsely posit that any “improvement” of the antitrust laws requires imposing new sanctions on private activities—when in many cases a relaxation of current restrictions may be best. But both agencies write as if the …

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

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No abstract provided.

Relentless As Entrenchment, Jonathan Masur

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No abstract provided.

Lies And The Law: An Introduction, Genevieve Lakier

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No abstract provided.

The New Outlawry, Darrell Miller, Jacob Charles

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From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self- protection and the ostensible maintenance of law and order. Yet such significant authority for private violence, and the values it projects, can have tragic real-world consequences, especially for marginalized communities and people of color.

We argue that these expansions of private violence tap into an ancient form of social control—outlawry: the removal of …

Historical Analogy And The Role Morality Of Reason-Giving, Darrell Miller

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The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

The Natural Law Origins Of Private And Public Law, Richard Epstein

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This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v. Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion …

The General-Law Right To Bear Arms, William Baude, Robert Leider

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No abstract provided.

Bankruptcy By Another Name, Anthony Casey, Joshua Macey

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In a recent essay, Abbe R. Gluck, Elizabeth Chamblee Burch, and Adam S. Zimmerman object to the increasing use of bankruptcy to resolve mass-tort claims. They and others are concerned that bankruptcy reduces plaintiff voice, impedes the development of state law remedies, and limits discovery that can drive state and federal regulatory interventions. This Response addresses these critiques. Contrary to popular descriptions of the bankruptcy system, bankruptcy courts do not simply aim to maximize economic efficiency and financial recoveries. Bankruptcy includes numerous procedures, including robust disclosure, bellwether trials, future-claims representatives, and voting, to ensure a fair process and promote noneconomic …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

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No abstract provided.

Imputing Unreported Hate Crimes Using Google Search Data, Aziz Huq, Dhammika Dharmapala

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U.S. law requires the Attorney General to collect data on hate crime victimization from states and municipalities, but states and localities are under no obligation to cooperate by gathering or sharing information. Data production hence varies considerably across jurisdictions. This paper addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for a racial epithet. It uses two alternative benchmarks for which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and those states with statutory provisions relating to hate crime reporting. We regress rates of racially-motivated …

Brown V. Board Of Education Why Do We Need Constitutional Rights?, Geoffrey Stone

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No abstract provided.

Moves & Rules: Addressing The Puzzle Of Social Rule-Following, Alma Diamond

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I explore a puzzle at the heart of the so-called ‘practice theory of rules’: how can rules, operating as normative standards, be determined by the very actions they govern? I demonstrate how this puzzle has shaped criticism of the practice theory and limited its ability to account for mistake and disagreement within social practices. I identify the reason for these difficulties: an exclusive focus on individual deliberative attitudes which ignores the dynamic interaction between plural and individual deliberation within social practices. Drawing on recent work in social ontology, I construct a framework to capture this dynamism. I distinguish between two …

Free Speech On The Internet: The Crisis Of Epistemic Authority, Brian Leiter

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No abstract provided.

Redistribution With Political Constraints: Legal Rules Compared To Taxes And Transfers, David Weisbach

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No abstract provided.

Asking Gpt For The Ordinary Meaning Of Statutory Terms, Richard Mcadams, Christoph Engel

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No abstract provided.

Machine-Learning Human Rights, Han-Wei Ho, Patrick Chung-Chia, Nuno Garoupa, Martin Wells, Yun-Chien Chang, Tom Ginsburg

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Utilizing a comprehensive panel dataset spanning from 1900 to 2020, this study introduces an innovative methodology for the analysis and categorization of legal documents, specifically national constitutions. Contrary to the predominant reliance on unsupervised methods within the field, this research incorporates a supervised machine-learning approach, notably the SEMMS method, alongside traditional unsupervised algorithms. This dual approach facilitates a nuanced analysis of the human rights provisions contained within national constitutions, resulting in the identification of both traditional and novel constitutional groupings. Broadly speaking, the more traditional common law-civil law divide does not seem particularly relevant in this context. Furthermore, our methodology …