Law Commons^™

Quasi-Judicial: A History And Tradition, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from …

Presidential Removal As Article I, Not Article Ii, Gary Lawson, Jed Handelsman Shugerman

Faculty Scholarship

As a matter of original public meaning, Article I’s Necessary and Proper clause is the starting point for both Congress’s power to create offices and the limits on that power.

We believe that many legal scholars have demonstrated that, as a matter of original public meaning, the term “executive power” did not imply a presidential removal power, and Article II did not imply an indefeasible (unconditional) presidential removal power. By contrast, Article I’s Necessary and Proper Clause is a basis for limiting congressional power that is more historically grounded in original public meaning and in early practice. Tenure protections and …

Genocidal Accusation, Steven Arrigg Koh

Faculty Scholarship

To accuse of genocide — what does it mean? Genocidal accusation is ubiquitous today, evident more in the public square than in any courtroom. At first glance, such accusation seemingly relies on a central assumption: genocidal accusation is critical to preventing atrocity. This Article argues that this widespread assumption is incomplete, obscuring genocidal accusation’s dual nature. In fact, genocidal accusation encompasses not only laudable atrocity prevention (for example, the Rwandan genocide), but also problematic punitive, carceral discourse that brands the “other” as morally polluted (such as President Putin’s Ukraine invasion). It is thus challenging to evaluate such accusation in the …

Social Media Participation And Scholarly Success In Law, Julian Nyarko, David E. Pozen

Faculty Scholarship

Using a novel dataset on Twitter activity as well as a novel corpus of law journal publications, this paper examines the impact of social media activity on the scholarly success of U.S. law professors. We find that joining Twitter increases citation counts by an average of 22% per year and improves article placements by up to 10 ranks for law professors, relative to a synthetic control group. These positive returns apply across nearly all classes of scholars and are magnified for those who post frequently about their own work. The identified citation boost would be even larger than 22% if …

Slaughter, Parsons, And The Original Meaning Of A Term Of Years, Jane Manners, Lev Menand

Faculty Scholarship

This term the Supreme Court is hearing argument in two major cases regarding the law of federal offices. One — Trump v. Slaughter — may strip Congress of the power to place any restrictions on the President’s ability to remove administrators at will. Another — Trump v. Cook — will address how such restrictions work, assuming that the President has to follow them.

General Rulemaking Grants And The Federal Trade Commission, Tamar Katz, Alex Lloyd George, Lev Menand, Tim Wu

Faculty Scholarship

The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC’s opponents, already adopted by …

Purpose And Nonprofit Enterprise, Cathy Hwang, Dorothy S. Lund

Faculty Scholarship

Nonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success is all the more surprising.

This Essay offers a novel “purposeful enterprise” theory to explain the puzzling success of nonprofit enterprises. Drawing on research in behavioral economics and organizational science, it argues that organizational purpose …

The Value Of Jury Rights, Philip A. Hamburger

Faculty Scholarship

The right to a civil jury trial is often dismissed as an inefficient anachronism ill suited to the complexities of modern litigation, and these efficiency concerns have long overshadowed any serious defense of the Seventh Amendment. This Article argues that such skepticism profoundly misunderstands the constitutional function and enduring value of civil jury rights. The Article observes that the Seventh Amendment’s jury right was adopted with the understanding that it would come with some inefficiencies and that contemporary concerns about its inefficiencies tend to be overstated. Ultimately, the Article finds that civil juries are essential for structural reasons such as …

The Autonomy Default Paradigm In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.

This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our …

Before Meyer And Pierce, Joshua Gupta-Kagan

Faculty Scholarship

In the standard story taught in typical Parents, Children, and the State or Children & the Law courses, analysis of parental rights has a clear beginning. In 1923, at the height of the Lochner era, in Meyer v. Nebraska, a case of first impression, the U.S. Supreme Court declared that “[w]ithout doubt” the Due Process Clause protected the right “to marry [and] establish a home and bring up children.” Two years later, in Pierce v. Society of Sisters, the Court recognized “the liberty of parents and guardians to direct the upbringing and education of children under their control.” …

Fact Checking Oral Argument In Slaughter, Lev Menand

Faculty Scholarship

The Supreme Court heard argument on Monday in Trump v. Slaughter, a case in which the President seeks to override the power of Congress to limit, through legislation, presidential removal of federal administrators. The argument revealed some confusion about the law and history of federal offices and multiple precedents important to resolving the question. This post examines mistakes and misreadings with respect to: the design of the Federal Reserve System; the meaning of a fixed term; and the Court’s decisions in Marbury v. Madison, Ex Parte Hennen, and Parsons v. United States.

Readers Are Authors, Especially In The Ai Age, Jessica Silbey

Faculty Scholarship

In this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction.

Replacement Opening Brief For Plaintiff-Appellant Timothy Olmos, Ciara Gerendas, Noah Goldstein, Eli O'Neal, Madeline H. Meth

Faculty Scholarship

Today, nearly everyone relies on a cellphone. Many use their phones to store a wealth of private information, including conversations over text messages and emails; photographs of family, friends, pets, and joyous occasions; and confidential banking and medical records. The Supreme Court, therefore, regards a cellphone search as one that “typically expose[s] to the government far more than the most exhaustive search of a house.”

The Supreme Court also recognizes that despite the legal status of people subject to probation conditions, probationers still retain Fourth Amendment protections against unreasonable searches. And this Court has held that probationers, who like almost …

Presidents, Opinions, And Independent Officers, Jed Handelsman Shugerman

Faculty Scholarship

The Opinions in Writing Clause is a persistent textual problem for the claim that Article II implies an indefeasible removal power: If the Framers believed they had given the president an unconditional removal power, why would they also specify a lesser power merely to ask for opinions? New historical research confirms this textual problem was also contextual: early state constitutions, the Ratification debates, and the First Congress indicate that the Opinions Clause’s original public meaning signaled independence of department heads, or at least the possibility of congressional requirements like good cause.

Legal scholars have already shown that the texts of …

Chimeric Contacts And Consent: The Ill-Reasoned Expansion Of Corporate Jurisdictional Exposure, James Paul George

Faculty Scholarship

Two recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case-Ford Motor Company v. Montana-reached a fair result but with strained reasoning that will support unfair results. The second case-Mallory v. Norfolk Southern Railroad Company-was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff's limited territorial model. Both decisions were the result of conceptual corners the Supreme Court has created …

Cisg (2025 Survey), Wayne R. Barnes

Faculty Scholarship

This survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. …

Trips And Its Futures, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was adopted on 15 April 1994, along with the estab-lishment of the World Trade Organization (WTO). With the WTO’s recent celebration of its thirtieth anniversary, it is high time we explore what the future will hold for this agreement. This chapter begins by revisiting the past to examine whether the TRIPS Agreement would be adopted if it were negotiated today. The chapter then discusses whether WTO members will undertake a major overhaul of this agreement in the future. Taking note of the fast-evolving international norm-setting environment and …

Assembly-Line Public Defense, David S. Abrams, Priyanka Goonetilleke

Faculty Scholarship

Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This Article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from their initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of …

Removal: A Response To Professor Nelson, Philip A. Hamburger

Faculty Scholarship

In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. It’s therefore important to evaluate whether his historical claim about removal is correct.

Bridging The Expectations Gaap In Financial Reporting, Neal F. Newman

Faculty Scholarship

The true nature of auditing publicly traded companies’ financial statements has been somewhat of an enigma to the general public. Due to this mystery, an “expectations gap” has formed between the public expectations of auditors’ roles and what the auditor actually does in their analysis of financial statements. Auditors are an extremely important piece of the financial reporting puzzle because they determine whether or not a company’s financial statements are a fair and accurate reflection of the company’s financial position, a determination that can be a major influence on how the financial strength of a company is perceived. Newman’s Article …

Beyond Mass Deportation, Nancy Plankey-Videla, Huyen Pham, Angela D. Morrison, Luz E. Herrera

Faculty Scholarship

Donald Trump’s threats to carry out the mass deportation of unauthorized immigrants helped propel him to a second term as President of the United States. For the estimated 11 million people in the U.S. without lawful status, those threats have increased fears of forced returns to their countries of origin. While American immigration law is heavily focused on the legal processes leading to deportation, little attention has been paid to the post-deportation experiences of individuals who must reintegrate into their home countries. This gap in understanding is especially alarming given the high stakes of reintegration. A successful transition can empower …

Leaving Delaware? The Essential Role Of Specialized Corporate Courts, Zohar Goshen, Tomer S. Stein

Faculty Scholarship

Following the Delaware Court of Chancery’s invalidation of Elon Musk’s fifty-six- billion-dollar compensation package, Tesla moved its incorporation from Delaware to Texas. Shortly thereafter, Delaware’s legislature, seeking to protect Delaware’s dominant incorporation position, passed the most sweeping corporate law amendments in fifty years.

Both supporters of Musk and defenders of Delaware’s judiciary have accused each other of partisanship, but neither side has addressed the central question: What is the role of specialized corporate courts?

This Essay presents a novel theory of why such courts are necessary. Corporate disputes are distinct because they arise within ongoing relationships between shareholders and management, …

Ai Companions And The Lessons Of Family Law, Clare Huntington

Faculty Scholarship

Virtual friends and lovers powered by artificial intelligence are rapidly moving to the center of our emotional and social lives. Millions of people turn to AI companions every day for conversation, romance, sexual intimacy, therapy, and education. AI companionship holds promise, potentially reducing loneliness, supporting people without access to mental health treatment, helping students learn, and offering a judgment-free space for sensitive conversations. But AI companionship also raises significant concerns. The technology's addictiveness may exacerbate loneliness and can undermine human relationships. Therapy bots may prove more harmful than helpful. AI companions can be emotionally abusive. And their access to the …

Trump’S Multi-Pronged Attack On Renewable Energy, Michael B. Gerrard

Faculty Scholarship

Federal policy on renewable energy took a 180-degree turn on the day of Donald Trump’s second inauguration. The Biden administration had rightly seen a massive expansion of clean energy, especially wind and solar and the associated storage and transmission, as key to moving away from fossil fuels and fighting climate change. But Mr. Trump denies that climate change is a serious problem and works to increase both the supply of and the demand for fossil fuels.

This article discusses the range of actions involved in the Trump administration’s attack on renewable energy.

Data As Policy, Janet Freilich, W. Nicholson Price Ii

Faculty Scholarship

A large literature on regulation highlights the many different methods of policy-making: command-and-control rulemaking, informational disclosures, tort liability, taxes, and more. But the literature overlooks a powerful method to achieve policy objectives: data. The state can provide (or suppress) data as a regulatory tool to solve policy problems. For administrations with expansive views of government’s purpose, government-provided data can serve as infrastructure for innovation and push innovation in socially desirable directions; for administrations with deregulatory ambitions, suppressing or choosing not to collect data can reduce regulatory power or serve as a back-door mechanism to subvert statutory or common law rules. …

Skrmetti Beyond Scrutiny, Kate Redburn

Faculty Scholarship

In United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care. For the first time, the Court considered a fundamental question in civil rights law: How does the Fourteenth Amendment regard transgender people? The Court gave little guidance. It did not sort out principles for deciding when anti-transgender discrimination classifies by sex, nor whether transgender people are a suspect class. Instead, the Court held that “[i]n the medical context, the mere use of sex-based language does not sweep a statute within the reach of …

The Constitutional Fight Over The Nlra And The Nlrb: A 90 Year Reprise, Kate Andrias

Faculty Scholarship

This article traces renewed constitutional challenges to the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB), placing them in historical and doctrinal context. Contemporary attacks — advanced by major corporations and the Trump Administration — revive the constitutional conflicts of the 1930s. Drawing on arguments rooted in the unitary executive theory, as well as Article III and the Seventh Amendment, the current challenges threaten not only the NLRB’s independence but the broader administrative state and the system of labor rights it sustains. At stake is more than institutional design: the dispute reflects a deeper contest over …

A New View Of Formal Equality And A Case For Predistribution, Alex Raskolnikov

Faculty Scholarship

A long-held egalitarian view is that formal equality — the absence of formal legal distinctions based on the material resources of individuals — is regressive. If legal rules are the same for the rich and the poor, the rich benefit and the poor suffer. This Essay argues that this view is mistaken. Far from being synonymous with laissez-faire, a commitment to formal equality provides a counterweight to the key neoliberal maxim that regulation of the market economy should focus on efficiency alone. Moreover, a new view of formal equality offered here reveals a key advantage of predistribution over redistribution: Explicit …

Plan-B Activist Defense: Defending Animal-Rights Activists In Courtrooms Hostile To Political Argumentation, Hadar Aviram

Faculty Scholarship

In recent years, several animal rights activists faced criminal charges for rescuing animals from factory farms. The standard legal approach in these cases has been relying on the necessity defense, which has a long history in cases of civil disobedience and ideologically driven crime. Animal law scholarship on this topic tends to focus on explaining why the defense applies to open rescue. However, as recent trials have demonstrated, actual courtrooms in rural counties tend to be hostile to the necessity defense, and judges can and do rely on Supreme Court precedent to keep it out of the courtroom.

This Article's …

Replacement Reply Brief For Plaintiff-Appellant Mona Salcida Murillo, Madeline H. Meth

Faculty Scholarship

Defendants’ response brief contains a laundry list of all the ways they think Mona Murillo fell short in trying to vindicate her rights to be free from sex discrimination and retaliation while incarcerated at Salinas Valley State Prison. They devote page after page to cataloging the regulations that govern her claims, describing the intricacies of the three-tiered grievance system, and recounting her repeated efforts to navigate that morass. And from all of that, they draw the conclusion that Murillo’s lawsuit should be thrown out of court.

In the process, Defendants take the exhaustion requirement to an extreme that even the …