Law Commons^™

Sounding The Alarm: The Role Of States In Monitoring The Federal Government, Christian G. Fritz

Faculty Scholarship

In December 2025, more than 40 bipartisan state legislative leaders from over 30 states, working through the National Conference of State Legislatures, issued a resolution titled “Federalism Restoration and State Empowerment.” The distinctive feature of American federalism has long been understood to be the distribution of powers between the national and state governments. This foundational element of our system of government—shared sovereignty—warrants revisiting by K-12 teachers and students. Although states may attempt to limit national power in ways such as withholding cooperation, exerting political pressure, and challenging federal authority through legal and institutional channels, this Digest focuses on the role …

Differential Validity In Fair Lending, Spencer Caro, Talia B. Gillis, Scott Nelson

Faculty Scholarship

Fair lending’s disparate impact doctrine aims to address lending disparities. But which disparities? Traditional fair lending has narrowly focused on equal outcomes — examining differences in loan approval rates or interest rates. However, this singular focus overlooks other dimensions of disparities that are essential for fair credit access. This article challenges the conventional emphasis on equal outcomes, demonstrating how it has failed to address deep-rooted inequalities in traditional credit allocation while also stifling innovation in machine-learning and alternative data. We argue that disparities in the validity of creditworthiness predictions — the accuracy with which a model identifies creditworthy applicants — …

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, I identify another effect of originalism: the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law; I argue that originalism …

Priority Without Progress: The Fda's Neglected Tropical Disease Voucher Program After 18 Years, Maple Goh, Kevin Outterson, Aaron Kesselheim

Faculty Scholarship

Introduction: To incentivize drug and vaccine development for neglected tropical diseases (NTDs), US Congress created the Priority Review Voucher (PRV) program in 2007. Sponsors that obtain Food and Drug Administration (FDA) approval for an eligible product receive a voucher redeemable to accelerate review of another product.

Methods: We reviewed the program’s public health impact by examining all 14 vouchers awarded for NTD products between 2007 and 2024, including the timing of FDA approval relative to World Health Organization (WHO) Prequalification, Essential Medicines List inclusion, first use in endemic countries, and voucher disposition.

Results: Eight (57%) achieved WHO …

Comparative Authoritarian Law, Madhav Khosla, Benjamin L. Liebman

Faculty Scholarship

In recent years, comparative constitutional lawyers have turned their attention to the study of democratic backsliding. However, such scholarship is yet to draw on the now extensive literature on traditional authoritarian systems. The bifurcation of regime type that has structured comparative legal research for decades — for comparative constitutional lawyers and for scholars of specific authoritarian regions — is now under strain. With the global rise of authoritarianism and the growing use of law by authoritarian states, the world is harder to neatly separate into two camps than it once might have been. This Article reflects on how we might …

Drug Scheduling As Institutional Design, Matthew B. Lawrence, David E. Pozen

Faculty Scholarship

Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA’s institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call …

New York Environmental Legislation In 2025, Michael B. Gerrard

Faculty Scholarship

In 2025, New York State overhauled its State Superfund law and extended the State Superfund Program for ten years. The state also enacted laws restricting chemicals in menstrual products and firefighter personal protective equipment; expanding the extended producer responsibility program for batteries to include electric scooter and bike batteries; and protecting monarch butterflies and horseshoe crabs. These and other new and amended environmental and energy laws — as well as notable vetoes — are discussed in this article.

Amendments to two of New York’s most important laws may be up for consideration by the Legislature during the current session. Governor …

The Eunomics Of Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Originally developed by the legal theorist Lon L. Fuller, eunomics is the “study of good order and workable arrangements,” directed at understanding the structure, form, or ordering adopted by an area of law. Yet, unlike the ordinary analysis of institutional design, eunomics views the form adopted by an area of law as neither preordained nor wholly contingent. Instead, eunomics sees form as playing an important role in clarifying and developing the goals of an area through a means-ends interaction. This Article develops the central insights of Fuller’s eunomics project for intellectual property. Until now, most theoretical accounts of intellectual property …

Does Law Constitute Society?, Jeremy K. Kessler

Faculty Scholarship

The resistance of capitalist inequality to legal reform has led a growing number of scholars to reconsider the explanatory virtues of Marxist legal thought. But what are those virtues? Some scholars hold that what makes Marxist legal thought special is its ability to explain the development of legal relationships in terms of the development of extra-legal relationships — specifically, the relations of production as they adapt to changes in the productive forces. Other scholars argue that this focus on the causal process by which extra-legal change (or stasis) drives legal change (or stasis) is too reductive. They contend that Marxist …

Trump V. Cook And The American Rule Of For-Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

Halfway through oral argument in Trump v. Cook, Justice Amy Coney Barrett asked Solicitor General John Sauer when a statute authorizing an officer’s removal should be read to require process. “Why shouldn’t we do the same thing that the Shurtleff court did,” Barrett asked, “and say that, well, as we said in Shurtleff, when a statute specifies the grounds for removal, there must be notice and a hearing given?”

In response, Sauer distinguished between statutes authorizing removal for inefficiency, neglect of duty, or malfeasance in office (INM) — which he conceded require process — and statutes using the more …

Private Equity, Public Utility, Kristen Van De Biezendos, Melissa Powers

Faculty Scholarship

The explosion of investment in artificial intelligence and cryptocurrencies has spurred a data center boom, with politicians jostling to attract companies to build data centers in their states. The potential financial windfall from these data centers has also attracted the attention of private equity firms, which are seeking to capitalize on the potential riches to be made in supplying these projects with electricity by buying regulated public electric utilities. These utilities are unusual in our capitalist system, in that they are subject to both state and federal regulation regarding their duties to serve the public and the amount they can …

Women In Law And The Draft, Thomas Helgerman, Benjamin David Pyle

Faculty Scholarship

Between 1964 and 1973, women’s representation in full-time law school programs rose fivefold, from 3.7% to 20.1%. This paper examines whether Vietnam War draft policy contributed to this increase. In 1968, men enrolled in law school lost eligibility for 2-S student deferments, threatening law schools’ tuition revenues and incentivizing schools to admit more women to stabilize enrollment. To test this mechanism, we construct a school-by-year dataset of enrollment counts split by women/men and full-time/part-time status. Using a uniform adoption difference-in-differences design, we find that women’s representation rises by 2 percentage points in full-time programs relative to part-time programs (which were …

Unlocking The Benefits Of Transparent And Reusable Science For Climate Risk Management, Adam B. Pollack, Lisa Auermuller, Casey D. Burleyson, Jentry Campbell, Madison Condon, Courtney Cooper, Matteo Coronese, Sönke Dangendorf, James Doss-Gollin, Prabhat Hegde, Casey Helgeson, Robert E. Kopp, Jan Kwakkel, Corey Lesk, Justin Mankin, Robert E. Nicholas, Jennie Rice, Samantha Roth, Vivek Srikrishnan, Moira Scheeler, Nancy Tuana, Chris Vernon, Mengqi Zhao, Klaus Keller

Faculty Scholarship

People around the world seek climate risk information to guide their decisions. For instance, projections about future flood risk inform where households choose to live, how lenders manage credit risks, and which communities receive federal funding. Yet data limitations and fundamental validation challenges raise important concerns about the reliability of such projections. The principles of transparency and reusability help address these concerns by enabling scrutiny of assumptions and methods, development of foundational data and tools, and consistent application of evaluation standards. While there is ongoing debate about how much transparency commercial climate risk services should provide, many expect noncommercial actors …

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Scholarship

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

Health Truth To Power: Professional Collaboration To Bolster Trust Against Misinformation, William M. Sage, Keegan D. Warren

Faculty Scholarship

This Article is about health, leaving aside more general challenges to shared civic information today. The Article begins by surveying the principal challenges for health information in post-pandemic, arguably post-truth America, and then describes briefly the sources and limits of medical professional authority. Noting the double-edged sword of free speech guarantees under the U.S. Constitution, the Article continues by commenting on speaking truth to government, to industry, and to the crowd. Next, the Article considers the physicians’ role in speaking truth to power from the perspective of standard medical professional ethics and identity, comparing it to that of lawyers. Finally, …

Crypto Litigation And Market Efficiency, Robert E. Bishop, Bradford Levy, Frank Partnoy, Daniel Taylor, Andrew Yeh

Faculty Scholarship

This paper investigates, for the first time in the literature, the factors that should matter to courts in determining whether a crypto  market is “efficient,” meaning that prices are sufficiently responsive to information. Based on new empirical evidence and a series of event studies, we recommend a new judicial framework for assessing market  efficiency in crypto litigation.

Market efficiency tests based on event studies have played an important role in other areas of litigation, particularly securities litigation, where courts frequently rely on what have become known as the “Cammer factors.” Academics have not yet assessed the extent to which market …

Confession Contamination And Dna Exonerations, 1989-2025, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Unwanted Medical Treatment Harms Patients: Taxonomy Of Healthcare Consent Infractions, Thaddeus Pope

Faculty Scholarship

Patients in the United States are subject to an ever-growing “avalanche” of unwanted medical treatment (UMT).  This is ethically, economically, and legally wrong. First, UMT constitutes a serious violation of patient autonomy and self-determination.  Second, it is waste (and often fraud or abuse) of scarce healthcare resources.  Third, but for rare exceptions, administering UMT contravenes settled legal rules and principles around consent and battery.

This article describe four types of unwanted medical treatment and how the law addresses (or fails to address) them.  The four types of UMT are (1) treatment over patient objections, (2) treatment with zero consent, (3) …

The Anonymous Officer, Shawn E. Fields

Faculty Scholarship

(Forthcoming 2026) Masked, plainclothes immigration agents in unmarked vans have terrorized communities in Chicago, Los Angeles, Minneapolis, and beyond. The indiscriminate violence committed by federal officers who at times appear indistinguishable from paramilitary units has forced immigrants into hiding and left lawmakers scrambling to address a growing and largely legal anonymity crisis in law enforcement. This Article explores the undertheorized implications of anonymous law enforcement, situating the rise of masked policing within a larger project of democratic retrogression and executive aggrandizement. Anonymity in policing and immigration enforcement frustrates core democratic norms of transparency, accountability, and legitimacy, providing the opacity needed …

Trump's War On Diversity, Equity, And Inclusion, Nancy C. Marcus

Faculty Scholarship

Among the many head-spinning developments that have occurred from the first days of President Trump’s second presidency are his attacks on DEI (diversity, equity, and inclusion), including anti-DEI edicts targeting educational institutions. This article provides a chronology and analysis of the early 2025 Trump administration’s attacks on DEI targeting schools nationwide, the resulting harms, and responses thereto, including litigation. A discernible refrain in the early litigation challenging President Trump’s anti-DEI attacks targeting educational institutions across the country has been how those attacks cross a clear constitutional line: the prohibition of unconstitutionally obscure governmental mandates. At its core, the void-for-vagueness doctrine …

Police Reform As System Justification, Shawn E. Fields

Faculty Scholarship

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning …

Post-Chevron Deference In Asylum Proceedings, Shawn E. Fields

Faculty Scholarship

The Supreme Court held for four decades that Chevron deference should apply in all immigration proceedings. How, then, will asylum proceedings change in a post-Chevron world? When, and under what circumstances, will courts continue to defer to the findings of immigration judges and the Board of Immigration Appeals (BIA)? And why does it matter? This Article answers those questions.

These issues require urgent examination for three reasons. First, they directly confront an issue pending before the U.S. Supreme Court in Urias-Orellana v. Bondi: Without the protection of Chevron insulating BIA decisions from meaningful judicial review, can certain legal questions like …

A Comparative View Of Artificial Intelligence Regulation In The European Union, Japan, People's Republic Of China, And The United States Of America, James Cooper, Kashyap Kompella

Faculty Scholarship

The Article analyzes the divergent regulatory architectures governing artificial intelligence across the European Union, the United States, Japan, and the People’s Republic of China, tracing their evolution from early data-protection frameworks to contemporary system-level governance. The Article demonstrates how the EU’s AI Act operationalizes a comprehensive risk-based regulatory model that imposes ex-ante obligations, categorical prohibitions, and conformity assessments to structure market behavior. The U.S. trajectory is defined by sectoral statutes, oscillating executive priorities, and a persistent absence of federal coherence, producing a permissive environment punctuated by episodic soft-law interventions and subsequent deregulatory shifts under the 2025 administration. Japan advances an …

Havens For Corporate Lawbreaking, William J. Moon

Faculty Scholarship

Whether corporations are obligated to maximize profits or if they ought to consider societal interests more broadly remains one of the most highly contested debates in corporate law. Yet even the fiercest defenders of the firm’s profit motive concede that the corporation’s profit-seeking function cannot justify breaking the law. As a matter of American corporate law, directors and officers are in breach of their fiduciary duties if they facilitate or engage in profit-maximizing illegal activities. Or so we thought.

This Essay reveals a troubling trend of jurisdictions undercutting the legal compliance obligations of directors and officers. The current legal architecture …

Teaching Contracts: My Journey With Spellbook And Ai Pedagogy, Gregory M. Duhl

Faculty Scholarship

I am integrating Spellbook, an AI tool for contract drafting and review, into my first-year law school Contracts course in Spring 2026. Although Spellbook is highly effective, its educational value hinges on the pedagogical framework structured around it, a framework typically not licensed along with AI tools. In-house instructional design expertise can provide this framework, and the professor-instructional designer partnership offers one model for successful AI integration. Strong tools paired with robust instructional design yield learning experiences in which AI augments, rather than supplants, the cultivation of legal judgment and critical thinking. This collaborative approach, among educators, instructional designers, and …

Antitrust & The Immoral Energy Economy, Kristen Van De Biezendos

Faculty Scholarship

The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But these rationales reflect a misunderstanding of the purpose of public utility law and its preference …

Critical Lawyering Pedagogy: Transformational Legal Education, Carolyn Grose

Faculty Scholarship

In an era marked by democratic backsliding, systemic inequality, and widespread disillusionment with legal institutions, traditional legal education has proven not merely inadequate, but actively complicit in reproducing the institutional norms, professional identities, and hierarchies that have enabled democratic erosion and the misuse of law as a tool of exclusion and domination.

This Article describes a comprehensive, justice-oriented framework that reimagines the structure, content, and outcomes of legal education to better meet those needs. Critical Lawyering Pedagogy (CLP) draws from Critical Pedagogy, Narrative Theory, and Critical Lawyering and challenges the entrenched hierarchies and exclusionary norms that dominate most law schools …

Do-It-Yourself Reparations, Martha M. Ertman

Faculty Scholarship

The magnitude of harms like white supremacy makes it difficult to precisely identify losses, let alone remedy them. Piecemeal approaches are essential, and private efforts may be the only option when public law and cultural norms deny or perpetuate the harms. This Article addresses one racial harm, the 10:1 racial wealth gap between white and black Americans, in the context of residential segregation over the past century. It contends that the equitable doctrine of restitution enables us to recognize and remedy the unjust enrichment enjoyed by white Baby Boomers caused by private law mechanisms such as racially restrictive covenants, all …

Legislatively Erased: The Failure Of Privacy Legislation To Protect People Connected To The Criminal Legal System, Chaz Arnett, Kate Weisburd

Faculty Scholarship

No abstract provided.

How To Manage The Wolf In The Fold, Susan Bisom-Rapp, Urwana Coiquaud

Faculty Scholarship

Recent scholarly work on regulatory capture in the platform economy accounts for the political role and power wielded by app-based firms aiming to reform the existing legal environment to favor their low-cost labor business models. This article adds to scholarly perspectives on the platform economy by shifting the focus to government actors, the role of narrative in communicating with the public, and institutional constraints which may hamper the government’s ability to provide a cogent rationale for opposing or implementing legal change. The article’s central contribution is underscoring the role the government plays in facilitating or preventing regulatory capture. To that …