Law Commons^™

Why Constitutional Argument Matters, Philip C. Bobbitt

Faculty Scholarship

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis — the system …

The Destruction Of The Climate Spending State, Adam D. Orford

Faculty Scholarship

The Biden Administration bet big on spending laws to forward its climate policies, creating a novel “climate spending state”in a field previously approached primarily through regulation. But the second Trump Administration, building on an aggressive theory of Presidential power, with support from bicameral Congressional majorities and a sympathetic Supreme Court, has dismantled the climate spending state with startling ease and speed. Although degradation of the federal workforce and legislative alterations to the tax code have played their part, it is the Trump Administration’s refusal to administer the spending laws enacted by prior Congresses that has had the most disruptive and …

Outside Counsel Guidelines: Power, Ideology, And The Evolution Of The Corporate Bar, Bruce A. Green, Eli Wald

Faculty Scholarship

Outside Counsel Guidelines (“OCGs”), terms of the lawyer–client relationship imposed by corporations, are a significant development in the practice of law by large corporate law firms (“BigLaw”). Among the most controversial OCGs are those that expand on law firms’ fiduciary obligations, thereby restricting their future clientele. The organized bar maintains that rules of professional conduct should restrict lawyers’ acquiescence to these OCGs because they limit clients’ access to legal services and undermine lawyers’ independence without advancing corporate clients’ legitimate interests.

This Article shows why the bar’s effort has (very recently) deservedly failed: corporate clients have a legitimate interest in demanding …

Law's Shifting Circles, Ela A. Leshem

Faculty Scholarship

This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern, expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects.

The Article shows that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of …

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

Should Statutory Interpretation And Contract Interpretation Be Harmonized?, Ethan J. Leib

Faculty Scholarship

This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes.  After exploring the choices of Texas, Alaska, New York, and Alabama—all of which take different approaches to their lumping or splitting—the paper seeks to make state courts more aware of what their options are; to help states think about whether their commitments to formalism or contextualism make sense to apply in both domains; and to help them evaluate their meta-choices about whether to bring their interpretive regimes closer together or further apart.

Risky Business, Atinuke O. Adediran

Faculty Scholarship

Corporate law scholarship and doctrine have largely operated on the assumption that corporate shareholders are interested in financial goals, while corporate stakeholders—such as employees, consumers, and local communities—are interested in social and environmental goals, like diversity and inclusion and climate change. Because of this assumption, the law largely requires a corporation to disclose information it considers to be “financially material” to shareholders—that is significant enough to impact the company’s financial position—including factors it considers to be financially risky.

Financial materiality is so embedded in corporate law doctrine that even if an issue is about social and environmental concerns, financial materiality …

The Regulation Of Technological Innovation In Financial Services: A Comparative Approach With Respect To Digital Assets And Artificial Intelligence, Howell E. Jackson, Katja Langenbucher

Faculty Scholarship

No abstract provided.

The International Order, International Law, And The Definition Of Security, Harlan G. Cohen

Faculty Scholarship

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

Transparency As A Regulatory Duty, Olivier Sylvain

Faculty Scholarship

This symposium piece offers a simple survey of transparency measures addressed to deepfakes and other related consumer harms, as well as the constitutional problems they present.

Book Review Of Political And Social Control In China: The Consolidation Of Single-Party Rule, Carl F. Minzner

Faculty Scholarship

No abstract provided.

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 …

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 …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Faculty Scholarship

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

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 …

Constitutional Colonialism And Decolonization: Moving Toward A Decolonial African Constitutional Future, Luwam Dirar

Faculty Scholarship

This Article is an attempt at theorizing Africa's colonial constitutional legacies and post-colonial constitutionalism. The central argument of this Article is that constitutional law in Africa is a colonial tool that was used to legalize the subjugation of Africans and Africa, and a post-colonial necessity for the "self-determination and statehood" of newly-minted African states, while at the same time, it remains a decolonial battlefield of epistemic colonization. This Article adopts a broader conception of colonialism that extends beyond the 19th-century understanding of European colonialism and interrogates constitutional law as both a colonial tool and an act of self-determination in the …

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 …

Does It Matter What People Lie About?, Stefanie Jung, Peter Krebs, Monika Leszczynska

Faculty Scholarship

We investigate whether people’s moral judgments of lies in pre-contractual negotiations differ from their views on whether such lies should give the deceived party a legal right to rescind the contract, and whether these judgments depend on the content of the lie. In a vignette study with 832 German students and 885 participants from Germany, Italy, and the United States, respondents evaluated a range of common negotiation lies. Across samples, participants were generally more likely to deem a lie immoral than to believe it should justify rescission, but the size of this gap varied depending on the lie’s subject. Lies …

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 …

Nest Eggs And Lifelines: The Overlooked Strain Of Economic Volatility On 401(K) Participants, Samantha Prince

Faculty Scholarship

Many Americans rely on defined contribution plans like 401(k) plans for retirement savings. These plans do not guarantee a fixed retirement benefit; rather, the benefit is based on accumulated contributions and investment performance. When the stock market drops, so do retirement account balances. When inflation hikes living expenses, money does not go as far. President Donald Trump's policies, including those associated with tariffs, are causing economic and resource volatility leading to financial hardship. Americans worry as they watch living costs increase and their retirement savings diminish. It is well known that retirees rely on 401(k) plan balances to fund their …

U.S. Administrative Law: A Casebook (6th Ed.), Jud Mathews

Faculty Scholarship

The number of administrative law texts is vast. The approach of this one, now in its fifth edition, is simple. It is: (1) to focus on the richest and most canonical cases; (2) to provide more extensive extracts of them than most casebooks; and (3) to keep the notes to a bare minimum. Updated through October 2025, the book contains a number of significant decisions from recent Supreme Court terms, as well as foundational classics that many contemporary casebooks cut, and much in between.

The Surveillance Of System-Adjacent Individuals, Mariam A. Hinds

Faculty Scholarship

Although the Fourth Amendment protects against “unreasonable searches and seizures,” this right is not enjoyed by all people equally. Supreme Court jurisprudence has curtailed the Fourth Amendment privacy rights of individuals under probation or parole supervision. In this line of cases, the Court concluded that the government’s interest in monitoring supervisees, reducing recidivism, and promoting public safety outweighed their reasonable expectation of privacy.

However, surveillance mechanisms like probation and parole extend the criminal legal system’s carceral gaze beyond the supervisees and peer into the bedrooms and digital lives of their families, roommates, and communities, or who this Article calls system-adjacent …

Untangling Ai Openness, Parth Nobel, Alan Z. Rozenshtein, Chinmayi Sharma

Faculty Scholarship

The debate over AI openness—whether to make components of an artificial intelligence system available for public inspection and modification—forces policymakers to balance innovation, democratized access, safety and national security. By inviting startups and researchers into the fold, it enables independent oversight and inclusive collaboration. But technology giants can also use it to entrench their own power, while adversaries can use it to shortcut years and billions of dollars in building systems, like China’s Deepseek-R1, that rival our own. How we govern AI openness today will shape the future of AI and America’s role in it.   Policymakers and scholars grasp the …

The Black Hole Of Capital Gains: Etf Swap Funds, Jeffrey M. Colon

Faculty Scholarship

ETFs have begun to challenge mutual funds as the dominant U.S. public pooled asset vehicle.  Their constant liquidity, exposure to an ever widening range of investment strategies, and highly touted tax efficiency have driven the explosive growth in the assets under management of ETFs over the last 15 years.  The tax efficiency is due to section 852(b)(6), which permits ETFs to distribute appreciated property tax free and eliminate all fund-level taxable gains even while making portfolio adjustments, which mutual funds cannot do.

Fund sponsors have developed various strategies to exploit the benefits of section 852(b)(6), with the newest being the …

An Empirical Study Of Malingering In Insanity Cases Across Twelve Decades, Deborah W. Denno

Faculty Scholarship

The last 120 years have seen a surge in the use of neuroscientific evidence in American criminal law cases, fueled by discoveries in brain science that have challenged the legal system’s assumptions about human thinking and culpability. One key assumption is that many defendants “malinger,” that is, feign or fake insanity or mental illness, to garner an acquittal or mitigated punishment. Likewise, when potential evidence that a defendant is malingering is introduced in court, it can have a pronounced and powerful negative effect on the defendant’s insanity claim, especially when juries and criminal justice actors are already skeptical of insanity …

The One-Stop-Shop Is One Step In The Right Direction, Olivier Sylvain

Faculty Scholarship

In Brokering Safety, Sharma, Kadri, and Adler urge federal policymakers to impose on data brokers the greater duty of policing and stemming online stalking, harassment, and related abuse; that burden should not fall to victims, they argue. Their proposal would close the unevenness among state laws, shift the burden of oversight away from victims, and, importantly, ensure accountability at a systemic level, addressing gaps in enforcement that allow brokers to evade meaningful consequences. Yet, the one-stop-shop solution that Brokering Safety proposes also accedes to the core neoliberal presumption insofar as it individualizes harm. Online abuse, like dark patterns and …

Brokering Safety, Chinmayi Sharma, Thomas E. Kadri, Sam Adler

Faculty Scholarship

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim’s personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity—that is, making themselves and their information harder to find.

This Article exposes privacy law’s …

Silencing As Blackening, I. Bennett Capers

Faculty Scholarship

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, …

Reversing Progress: The Political And Legal Ramifications Of The 2025 Dei Policy Rollback, Bridgette Baldwin

Faculty Scholarship

The year 2025 will mark a significant turning point in the landscape of American civil rights policy, as federal executive orders the Trump administration initiated seek to dismantle longstanding diversity, equity, and inclusion ("DEI") initiatives. Rooted in a historical context of civil rights progress, these orders aim to curtail affirmative action programs, eliminate DEI mandates within federal agencies and contractors, and challenge the legal foundations of inclusive policies across the country. This Article explores the evolving landscape of civil rights and DEI in the United States, examining its historical roots, recent legal and political developments, and ongoing challenges. From landmark …