Law Commons^™

Why Did Prosecution Strengthen President Trump In The 2024 Election?, Steven Arrigg Koh

Faculty Scholarship

Why did criminal prosecution strengthen President Donald Trump's electoral prospects in the 2024 federal election? It was not supposed to be this way: after President Trump's 2024 New York state conviction, many speculated that President Trump's "felon" status would imperil his political career. In fact, the opposite occurred: federal and state criminal prosecutions reenergized President Trump's 2024 presidential candidacy. Contemporary criminal law theories-traditional individualist, expressivist, and critical-struggle to explain why. 

This Article advances a theory of criminal coalescence to explain why the Trump prosecutions led the former President to political victory. Criminal coalescence is the intensification of mass support for …

Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman

Faculty Scholarship

Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.

In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …

Mobility And Power In Temp Work, Andrew Elmore

Faculty Scholarship

Labor mobility is an underdiscussed determinant of temp worker power. Drawing on original interviews with professional and blue-collar workers who work as and alongside temps, this Article shows how businesses use staffing agencies to restrict the labor mobility of contingent workers. Staffing agencies limit worker mobility by imposing user- and worker-side contractual restraints while misrepresenting themselves to temp workers as their sole employer. They also exploit state-imposed mobility limitations by recruiting foreign nationals and people leaving incarceration and channeling them into their most precarious work. This enables clients to dismantle internal labor markets and to fill staffing shortages without raising …

Do Academic Researchers Care About Patent Infringement? A Pcr Case Study, Janet Freilich

Faculty Scholarship

Because much cutting-edge academic research involves building on other new technologies, university research often involves making or using a patented invention—an act of patent infringement. The problem of how patents affect academic researchers has attracted considerable attention, but legal scholars are divided on the magnitude of patents’ potential impact. Many scholars fear that patents will entirely hobble academic scientific research, while others find that academic researchers entirely ignore patents and thus that they have little impact. This Article adds a piece of empirical evidence to the debate by studying the example of polymerase chain reaction (PCR) technology. In the early …

Panel Discussion: Mindfulness In The Law School Environment, Erika George, Nicky Boothe, Kellyn O. Mcgee

Faculty Scholarship

A 2016 study of 13,000 lawyers conducted by American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation found that approximately 28 percent struggle with depression, 19 percent anxiety and 23 percent stress.¹² The study found “younger lawyers in the first ten years of practice and those working in private firms experience the highest rates of problem drinking and depression.”¹³ At least one study suggests that 40-70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance abuse or depression.

According to a 2016 Survey of Law Student Well-Being including over 3,300 law …

Response: Work And Home, Katharine B. Silbaugh

Faculty Scholarship

The idea of work, as it pertains to a place called home, as distinct from the market, has engaged and perplexed scholars for generations. Work in the home raises complicated issues that have accordingly drawn the focus of generations of scholars, from Charlotte Perkins Gilman and the material feminists of the late nineteenth century¹ to historians of labor such as Eileen Boris² and of law like Reva Siegel,³ from legal scholars like Fran Olson, Dorothy Roberts, and Robert Ellickson⁴ to social theorists like Friedrick Engels⁵ and architectural historians like Dolores Hayden,⁶ to name just …

Under What Circumstances Is "Caste" Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford V. Levinson, Robert L. Tsai

Faculty Scholarship

This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from …

Formal Victories And Roads Not Taken: Excavating Departures And Throughlines In Challenges To The Place Of Marriage, Linda C. Mcclain

Faculty Scholarship

A decade after Obergefell, Professor Mayeri’s fascinating and meticulously detailed new book, Marital Privilege: Marriage, Inequality, and the Transformation of American Law, tells the stories of “marriage’s challengers,”from the 1960s to the beginning of the twenty-first century.¹⁶ Along with the stories of some “well-known” lawyers, advocates, and scholars, Mayeri also “rescu[es]” the stories of now “obscure” Americans who “pushed marital boundaries” to protect their parental rights, their careers, or their “freedom to make decisions about their bodies and families.”¹⁷ Such rescue allows readers to “see change as a bottom-up as well as a top-down process.”¹⁸ Mayeri …

What We Should Know About The Reliability Of Empirical Legal Studies, Kathryn Zeiler

Faculty Scholarship

The findings of replication studies conducted in the early 2010s led many to declare that science was in the midst of a “replication crisis.” Since then, a growing number of reforms have been proposed and tested. The field of empirical legal studies seems behind other fields such as psychology, economics, political science, medicine, biology, and others that have taken significant steps toward uncovering the general reliability of the field’s empirical work, investigating the causes of observed unreliability, and instituting and testing the effects of various reforms. The purpose of this Article is to summarize what we know about the reliability …

Incremental Innovation, George Horvath

Faculty Scholarship

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to …

Criminal Procedure Without Consent, Kate Weisburd

Faculty Scholarship

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and …

Altering Rules: The New Frontier For Corporate Governance, Gabriel Rauterberg, Sarath Sanga

Faculty Scholarship

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules — statutory rights, the fiduciary duty of loyalty, even the central role of the board — and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom.

We argue, however, that the best …

Per Se Non-Takings, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

The Shadow Defendants, Mariam A. Hinds

Faculty Scholarship

Although the overrepresentation of men, specifically Black men and men of color, in the criminal legal system is well documented, the people who support these men, especially women, have garnered less attention. Women who are proximate to system-involved men—mothers, grandmothers, sisters, daughters, girlfriends, and wives—are invisible actors in the criminal legal system who perform critical tasks and provide essential support. They appear in court to demonstrate a person’s family and community ties, use their assets as collateral for bail, deposit money in commissary accounts, maintain social ties during imprisonment through letters and visits, and bear the burden of filling the …

Commentary On Capture, Redesign, Release: Market Structure Or Charter Structure In Vice Markets?, Zephyr Teachout

Faculty Scholarship

This essay evaluates Taparia and Buchanan’s proposal to address the social costs of addiction-driven industries through a “capture, redesign, release” framework, under which government would exercise eminent domain to acquire tobacco firms and restructure them as purpose-driven corporations. The commentary argues that, while innovative, the proposal raises serious constitutional and corporate law concerns. First, the reliance on eminent domain is vulnerable under the Takings Clause, particularly given the Roberts Court’s likely skepticism toward expansive readings of Kelo v. City of New London. Second, the plan to prohibit corporate marketing and lobbying as part of a redesigned charter would almost …

Promise And Limits Of Total Governance: A Response To Professors Gramitto Ricci And Greenwood, Atinuke O. Adediran

Faculty Scholarship

In their article, Total Governance, Professors Gramitto Ricci and Greenwood theorize about how to increase the power and influence of ordinary individual shareholders who do not have a lot of wealth. The total governance framework has some promise for increasing the influence of ordinary people in corporate governance. It also raises questions about treating corporate actors as monoliths: managers, boards of directors, shareholders, and stakeholders. This brief response, however, takes the position of a skeptic who recognizes the theoretical potential of the total governance framework while highlighting the shortcomings of the concept for corporate governance.

Federal Open Data As An Artificial Intelligence Resource, Erik Stallman, Aniket Kesari

Faculty Scholarship

In the 2010s, the open government data movement—a confluence of government transparency and open source advocacy—succeeded in making most federal data disclosed by default and free of restriction on downstream use. However, keen-eyed observers noted a “new ambiguity” in open government data policies.

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Scholarship

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Bailing Out Biometrics, Chinmayi Sharma, Elijah Gordon

Faculty Scholarship

In 2023, hackers breached 23andMe and extracted the biometric and genealogical data of nearly seven million people. By 2025, that data-originally offered up in the spirit of medical discovery and consumer empowerment-was being auctioned off in bankruptcy court as a corporate asset. The breach exposed more than technical lapses or governance failures. It revealed a structural gap in how the law understands, regulates, and protects biometric identity. Biometric data is intimate, immutable, and implicates human dignity and autonomy. And yet, the legal frameworks most often tasked with protecting it-tort, contract, and even modern privacy statutes-have consistently failed to impose meaningful …

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

Faculty Scholarship

No abstract provided.

How Artificial Intelligence Will Shape Securities Regulation, Gabriel Rauterberg

Faculty Scholarship

How will the increasing prevalence and sophistication of artificial intelligence (AI) change the doctrine and practice of securities law? My main thesis is that it will push securities regulation toward a more systems-oriented approach. This approach will replace securities law’s emphasis, in areas like manipulation, on forms of enforcement targeted at specific individuals and accompanied by punitive sanctions with a greater focus on ex ante rules designed to shape an ecology of actors and information.

An Introduction To U.S. Groundwater Law: Domestic And Transboundary Considerations, Caleb Cook, Gabriel Eckstein

Faculty Scholarship

In light of the scientific and historical factors that have shaped the development of groundwater law and policy, this chapter seeks to provide a primarily descriptive account of its current state in the United States and to lay a foundation for future efforts to address gaps in the regime. Section 8B.02 considers the importance of groundwater in modern American society, with a particular focus on its uses and the threats these resources face. Section 8B.03 describes the U.S. framework for the domestic governance of groundwater resources. Section 8B.04 describes the mechanisms for transboundary governance of groundwater between the United States …

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

Criminal Background Checks: Implications For Discrimination And Crime, Murat C. Mungan

Faculty Scholarship

Criminal background checks have recently attracted the attention of academics and policy makers alike. Recent laws and policies, like “ban the box” and expungements, focus on the availability of criminal background information as well as the permissibility of using this type of information. Quite surprisingly, policies about the content of the information –whose permissibility and availability are questioned by recent work– is not scrutinized as much.

In this article, I investigate the informational quality of existing background checks. For this purpose, I review the history and evolution of traditional criminal background checks. These checks rely on ‘rap sheets’ –documents containing …

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Faculty Scholarship

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

The Rise Of Global Fcpa Settlements, Rachel Brewster

Faculty Scholarship

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This …

Criminalization Of Immigration, Emily Ryo, Jennifer M. Chacón, Cecilia Menjívar

Faculty Scholarship

This article presents a critical analysis of social scientific research from the past fifteen years on the criminalization of immigration in the United States. Our review reveals three central themes. First, although immigration law is considered federal civil law, immigration enforcement has become substantially intertwined with criminal law enforcement in ways that have broad-ranging and radiating effects on immigrant communities of color. Second, race plays an important bidirectional role in the increasing criminalization of immigration. Specifically, criminalizing immigration results in the racialization of certain immigrant groups as dangerous outsiders, and such racialization has the effect of sustaining and promoting the …

Copyrighting Style, Christopher Buccafusco

Faculty Scholarship

Does copyright law protect an artist’s style? The federal courts that have considered the question are equally split. They all agree, however, that the answer to the question resides in copyright law’s idea/expression distinction. According to this doctrine, ideas, techniques, and methods cannot be copyrighted, but expressions of ideas can be. The question courts have faced, then, is whether artistic style is an idea or a matter of expression. The answer, perhaps unfortunately, is that style is both.

This is unfortunate because, this Article argues, copyright law’s idea/expression distinction is inadequate to the task of determining the copyrightability of style. …