Law Commons^™

The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt

Faculty Publications

The conventional wisdom is that the two impeachments of Donald Trump demonstrated the ineffectiveness of impeachment as a remedy for serious presidential misconduct. Meeting the constitutional threshold for conviction and removal requiring at least two-thirds approval of the Senate is practically impossible so long as the members of the President’s party in Congress control at least a third of the seats in the Senate and are united in opposition to his impeachment and conviction. This Article challenges this conventional wisdom and argues instead that the two Trump impeachments have enduring effects on Trump’s political future and legacy, especially in light …

Contracting As A Class, Caleb N. Griffin

Faculty Publications

Contract law is stuck in a loop of path dependency and stale precedent. Its metaphors, like “the meeting of the minds,” are today laughably implausible. Its values, like “consent,” have been stripped of any real meaning. No one reads or understands the overwhelming majority of contracts to which they agree. And no one should. Reading them is meaningless, because it simply does not matter what they say. Individuals must agree to them— indeed, are effectively forced to agree to them—if they wish to participate in the modern world.

Modern digital contracting is not a collaborative process. Today, most “contracting” involves …

Pitfalls Of Progressive Prosecution, Carissa Byrne Hessick

Faculty Publications

This Essay examines the political vulnerabilities facing the progressive prosecution movement, arguing that two core features of its public brand—emphasizing a fundamental break from traditional prosecution and pledging to “do less” by shrinking the criminal justice footprint—have inadvertently exposed reform‑oriented prosecutors to intensified backlash. Drawing on recent examples, the Essay shows how framing progressive prosecution as radically different obscures the long-standing prosecutorial tools these offices still rely on, enabling critics to portray routine exercises of discretion as unprecedented or dangerous. It further explains how decarceral commitments make progressive prosecutors easy targets when crime or disorder rises, both because voters may …

Fake And Real People In Bankruptcy, Melissa B. Jacoby

Faculty Publications

This essay explores the bankruptcy system’s structural bias in favor of artificial persons—for-profit companies, non-profit enterprises, and municipalities given independent life by law—relative to humans. The favorable treatment extends to foundational issues such as the scope and timing of debt relief, the conditions to receiving any bankruptcy protections, and the flexibility to depart from the Bankruptcy Code by asserting that doing so will maximize economic value. The system’s bias also contributes to the “bad-apple-ing” of serious policy problems, running counter to other areas of law that have deemed harms like discrimination to be larger institutional phenomena rather than merely the …

The Real Problem With Plea Bargaining, Carissa Byrne Hessick

Faculty Publications

This Response critiques Jeffrey Bellin’s argument that plea‑bargaining reform should focus solely on problems uniquely caused by plea bargaining and instead contends that the practice has fundamentally reshaped American criminal justice in ways that extend far beyond Bellin’s narrow framework. The Response argues that plea bargaining exacerbates systemic issues—including harsh sentencing, coercive leverage, and inaccurate convictions—by insulating legislative excess, weakening trial incentives, and pressuring even innocent defendants to plead guilty. It further maintains that Bellin understates how plea bargaining distorts legislative behavior, affects statutory design, and suppresses political pressure for reform. Most importantly, the Response identifies plea bargaining’s central harm …

The (Local) Prosecutor, Carissa Byrne Hessick, Rick Su

Faculty Publications

The rise of the reform prosecutor has led to a backlash. Many states have sought to circumvent the power of reform prosecutors, others to sanction them, and some to replace them with unelected appointees. These efforts have been met with resistance and, in some instances, with legal challenges. Resolving those challenges may prove difficult because local prosecutors straddle three distinct axes within state governments: the horizontal divide between its branches, the vertical divide between the state government and its local subdivisions, and the constitutional divide between constitutional and statutory offices. This Essay exposes the significant state variation in the legal …

Automated Agencies, Joshua D. Blank, Leigh Osofsky

Faculty Publications

This article presents the first comprehensive study of how federal agencies use automated legal guidance tools—such as chatbots, virtual assistants, and decision-tree systems—to explain complex law to the public. The authors show that while automation offers administrative efficiency and wider reach, it often simplifies or distorts underlying legal rules. Through detailed analysis of agency tools and ten semi-structured interviews with officials, the article demonstrates that automated systems can portray unsettled or complex law as clear, omit exceptions, and answer too narrowly, thereby influencing user behavior in ways agencies neither fully appreciate nor monitor.

The study further finds that agencies lack …

Psychedelic Capitalism And The Perceptual Threshold, Dustin Marlan

Faculty Publications

This invited response to Mason Marks et al., Microdosing Psychedelics Under Local, State, and Federal Law examines how evolving psychedelic regulation may ultimately favor below‑perceptual‑threshold approaches—such as microdosing and nonsubjective psychoplastogens—over the traditional, above‑threshold psychedelic experience.

Because such developments risk marginalizing the culturally, spiritually, and cognitively significant psychedelic experience, the author contends that access to above‑threshold psychedelic states requires justification beyond clinical utility. Invoking principles of cognitive liberty, neurodiversity, and equitable access, the article recommends that decriminalization and supported adult‑use models accompany therapeutic frameworks to preserve the legal viability of non‑ordinary states of consciousness, even if below‑threshold medicines come to …

Consideration Of The Beneficiary Inducement Statute On Access To Health Care Systems' Population Genetic Screening Programs, Aurora M. Washington, Kimberly Foss, Joan H. Krause, Arlene M. Davis, Kristine J. Kuczynski, Laura V. Milko, Jonathan S. Berg, Megan C. Roberts

Faculty Publications

This article examines how the federal Beneficiary Inducement Statute (BIS) and related anti-kickback laws shape access to population genetic screening (PGS) programs, particularly for Medicare and Medicaid beneficiaries, during a critical early-adoption phase in public health genomics. While PGS for Tier 1 conditions—such as hereditary breast and ovarian cancer, Lynch syndrome, and familial hypercholesterolemia—offers significant opportunities for early detection and prevention, large-scale implementation remains limited by cost barriers, uneven insurance coverage, and statutory restrictions that can unintentionally hinder equitable participation. The authors explain how BIS constraints complicate efforts by health systems to offer low- or no‑cost genomic screening, survey legally …

Multibillion-Dollar Tax Questions, James Alm, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

Tax compliance in the United States historically hovers in the 80 percent range, costing the nation approximately half a trillion dollars annually in uncollected tax revenue. To foster greater tax compliance, the Internal Revenue Service (IRS) should employ whatever tools are at its disposal. Standard deterrence theory argues that increasing the audit rate and imposing stiffer penalties would foster greater tax compliance. There are political headwinds, however, that strongly suggest that these approaches are not currently viable. Instead, there is a low-cost method that could yield greater tax compliance. Drawing on recent and compelling social science research, the IRS should …

Physicians Spreading Medical Misinformation: The Uneasy Case For Regulation, Richard S. Saver

Faculty Publications

Physicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet, state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article questions the overall suitability of licensure regulation to police medical misinformation. First, uncertainty exists about medical boards’ jurisdiction and legal authority. Many misinformation claims have involved physicians communicating publicly, not while treating patients. Given the primarily patient-centered legal and ethical frameworks governing the practice of medicine, serious challenges arise in making …

Repugnant Precedents And The Court Of History, Daniel B. Rice

Faculty Publications

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.

The Court recently sidestepped these difficulties by insisting that one of its …

Fake News And The Tax Law, Kathleen Delaney Thomas, Erin Scharff

Faculty Publications

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. …

Mcconnell’S Gamble, Peter Nemerovski

Faculty Publications

Part I of the Article discusses the recent history of Supreme Court nominations, beginning with President Ronald Reagan’s unsuccessful nomination of Judge Robert Bork in 1987. It attempts to explain how the Senate, in just a few decades, went from confirming three justices unanimously to confirming four consecutive justices with fewer than 55 votes, amidst increasing partisan rancor. Part II summarizes the new rules of the game in light of the actions taken by both parties, and their justifications for those actions, in the years since Scalia’s death. Part III explores what the future of Supreme Court nominations will look …

Mass Sovereign Debt Litigation: A Computer-Assisted Analysis Of The Argentina Bond Litigation, Gregory Makoff, W. Mark C. Weidemaier

Faculty Publications

This Article presents a computer-assisted analysis of the first large-scale mass litigation of sovereign debt claims. Between 2002 and 2016, hundreds of lawsuits were filed against Argentina in the United States, virtually all in the Southern District of New York. Historically, litigation against a foreign government would have involved a few hedge funds that had invested in debt at distressed prices. Argentina faced thousands of investors, including small retail bondholders, in litigation that more closely resembled a mass tort or federal multidistrict litigation than any prior episode involving a sovereign’s debt default.

To study this sprawling litigation, this Article combines …

The Fraternity Of Legal Style, Alexa Z. Chew

Faculty Publications

This article reports the findings of an empirical study of writing experts mentioned in popular legal style books. The study shows that these experts are overwhelmingly men. This study complements the many other studies showing that gender and racial bias exists throughout the legal profession, but it focuses on one area that has not yet been examined: bias in books that give writing advice to lawyers. I call these books “legal style books.” The area of legal writing advice books is admittedly niche. However, it is worth studying because writing is central to lawyering.

Gender Violence As Legacy: To Imagine New Approaches, Deborah M. Weissman

Faculty Publications

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It is informed by the scholarship that propounds the need to develop community responses independent of the carceral system as a means to address the systemic source factors that contribute to Intimate Partner Violence (“IPV”), with attention to restorative and transformative justice approaches (RJ/TJ). This essay advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to …

A License To Play: Regulating Location-Based Augmented Reality Gameplay On Public Property, Kate Johnson, Evan Ringel, Amanda Reid

Faculty Publications

This novel research sits at the intersection of augmented reality gameplay and government licenses for use of public property. Governments have long used licensing schema to assure public safety and order. Augmented reality gameplay on public lands presents a new, contested use of public property. Under our proposed licensing scheme, those wishing to engage in location-based augmented reality (LoBAR) gameplay on public lands would need a license. This proposal is akin to how governments—federal, state, and municipal—have authorized permit schema for use of public property, including rock climbing, geocaching, street performing, and film photography. Our Article offers sample legislation for …

Felony Financial Disenfranchisement, Neel U. Sukhatme, Alexander Billy, Gaurav Bagwe

Vanderbilt Law Review

Individuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (“LFOs”)-—fines, fees, and/or restitution stemming from convictions-—in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.

Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions imply such disenfranchisement is …

After Action: The U.S. Drone Program's Expansion Of International Law Justification For Use Of Force Against Imminent Threats, Elodie O. Currier

Vanderbilt Law Review

Until the 2000s, the United States' attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. …

Overview Of The Characteristics Of Tax Havens, Dhammika Dharmapala

Coase-Sandor Institute for Law & Economics Research Paper Series

Tax havens have become a subject of great interest among policymakers, scholars and the general public, and are central to many important current policy debates. This chapter provides an overview of the scholarly literature on the characteristics and origins of tax havens. The earlier literature, used cross-country analysis and found evidence that tax havens tend to have stronger governance institutions than comparable nonhaven countries. The more recent literature analyzes the historical origins of tax havens and undertakes longitudinal analysis of their adoption of haven-like laws. This chapter also presents a descriptive analysis of the relationship between tax haven status and …

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Coase-Sandor Institute for Law & Economics Research Paper Series

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …

Property As Service Streams, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Property’s job is to help people derive benefits from resources.¹ But often it cannot do this work well. A core problem is an outmoded model of benefit production that treats the individually owned parcel or “thing” as the relevant unit of analysis.² Property theorists often use the example of a farm to illustrate how ownership induces people to invest (in sowing) by granting them exclusive rights (to reap the crops).³ On this account, property holdings operate in a largely self-contained fashion, collecting inputs from owners and delivering the associated returns to them. The primary role of property …

No-Poach Antitrust Litigation In The United States, Eric A. Posner, Sarah Hammond Roberts

Coase-Sandor Institute for Law & Economics Research Paper Series

In recent years, U.S. courts have heard numerous antitrust lawsuits challenging agreements among employers not to poach one another’s employees. The major issues so far involve labor market definition, the doctrine of ancillary restraints, the role of cross-market balancing, and the scope of the per se rule in the labor market context. The recent Seventh Circuit case of Deslandes v. McDonald’s has clarified some of these issues and will likely boost this form of litigation. But many questions remain unanswered.

The Protection Of Student Data Privacy In Wisconsin School Board Policies, Curtis Clyde Rees

Theses and Dissertations--Education Sciences

American schools have increasingly adopted technology resources to fulfill their educational obligations. These tools are for instruction, communication, and storing and analyzing student information. Student data can be directory information, enrollment records, achievement data, and student-created products. This increased utilization began with the passage of No Child Left Behind in 2001, and the COVID-19 pandemic led to more educational technology use of student data. Districts turned to third-party vendors for assistance with data systems and virtual learning resources. Before, during, and after the pandemic, stakeholders were concerned about information security and the students' privacy. School leaders looked to federal regulations …

Flexible Work Within Employment Relationships: A Conceptual Scheme For Fiscal Policies, Wei Cui

All Faculty Publications

No abstract provided.

Hidden Value Transfers In Public Utilities, Aneil Kovvali, Joshua Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

Many electric utilities in the United States own rate regulated and non-rate regulated subsidiaries. The rate regulated subsidiaries enjoy legal monopolies and a right to a return on their capital investments but are only allowed to charge regulatorily authorized rates. The non-rate regulated subsidiaries participate in competitive markets and are generally free to earn whatever profits they can but are subject to the threat of displacement by other enterprises.

Many electric utilities in the United States own rate regulated and non-rate regulated subsidiaries. The rate regulated subsidiaries enjoy legal monopolies and a right to a return on their capital investments …

Strategic Subdelegation, Brian D. Feinstein, Jennifer Nou

Coase-Sandor Institute for Law & Economics Research Paper Series

Appointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when …

“Chalking Up A Victory For Deal Certainty”: Chancery Court Reinforces High Bar To Establishing “Mae” In Connection With Impact Of Covid-19, Robert S. Reder

Vanderbilt Law Review

No abstract provided.

Committing To Agency Independence, Nicholas Almendares

Vanderbilt Law Review

No abstract provided.