Public Law and Legal Theory Commons^™

“The Future Of Executive Power”: An Overview, Robert J. Pushaw Jr.

Pepperdine Law Review

This symposium overview examines the rapid expansion of presidential power in the modern era, culminating in what the author and contributors describe as an unprecedented assertion of Article II authority during President Trump’s second term. It argues that the Constitution’s original separation-of-powers framework—designed to prioritize legislative authority and constrain the executive—has been inverted due to the growth of presidential control over foreign affairs, the administrative state, and policymaking. The article traces this shift through historical developments such as the New Deal, the rise of independent agencies, and the emergence of the “unitary executive” theory, while also analyzing recent Supreme Court …

How To Transform Capitalism Through Law, Katharina Pistor

University of Miami Law Review

This essay is based on the presentation of my book, The Law of Capitalism and How to Transform It, at the University of Miami Law School on October 14, 2025. I am grateful for the opportunity to share a summary of this work in the University of Miami Law Review and to my colleagues Ingo Venzke and Martijn Hesselink, who were kind enough to offer their thoughts on it for this mini symposium.

New York Times V. Sullivan Protects Freedom Of The Press Against Seditious Libel, Not Against Personal Libel, Louis W. Hensler Iii

Mercer Law Review

Justice Clarence Thomas appears to be on a mission to reconsider the actual malice standard adopted sixty years ago by the Supreme Court of the United States in New York Times v. Sullivan. And Thomas has not been a lone voice crying in the wilderness—others also have questioned New York Times. While New York Times represents a big shift in the law for those cases to which it applies, the scope of its precise holding is relatively narrow—New York Times protects publications about the official conduct of public officials.

Moreover, focusing on the precise facts in the New York Times …

Article Iii's Constraints On The Legislative Power, Elizabeth Beske

Scholarly Articles in Law Reviews & Journals

Article III’s heightened concreteness standard for statutory harms takes federal judges deep into legislative terrain, jeopardizing statutory damage provisions and confining Congress to post hoc solutions rather than preemptive strikes. The Supreme Court has insisted that creating a cause of action is a legislative function. At the same time, its recent standing cases instruct lower federal courts to permit suit on statutory injuries only when they find actual harm that bears a tight connection to injuries recognized at common law. This new harm requirement rests uneasily with countless statutes featuring statutory damage provisions that are in place precisely because damages …

Lawless Antitrust, John M. Newman

Fordham Law Review

No abstract provided.

Why Capitalism Needs Democracy And Democracy Needs Capitalism, Luigi Zingales

Fordham Law Review

No abstract provided.

Is Tax “Law”?, Luís C. Calderón Gómez

Fordham Law Review

Although taxation remains a hotly contested issue in debates by both politicians and political theorists—over the optimal size of government, distributive (and sometimes corrective) justice, or even the legitimacy of current private property arrangements—taxation has been largely ignored by legal theorists, to the detriment of both tax law and legal theory. This Article argues that tax law, driven by its battle against tax evasion, is in deep conflict with widely accepted conceptions of “legality”—that is, the qualities that make a rule distinctively and normatively “law.” This matters because legality is a key buttress in jurisprudential and political theory accounts that …

How To Transform Capitalism Through Law, Katharina Pistor

Faculty Scholarship

This essay is based on the presentation of my book, The Law of Capitalism and How to Transform It, at the University of Miami Law School on October 14, 2025. I am grateful for the opportunity to share a summary of this work in the University of Miami Law Review and to my colleagues Ingo Venzke and Martijn Hesselink, who were kind enough to offer their thoughts on it for this mini symposium.

The Hidden Power Of Citizenship: Political Identity In The Twilight Zone Of Equal Protection, Charles J. Anderson

Indiana Law Journal

More than half a century ago, in the landmark case of Graham v. Richardson, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits state-level blanket exclusions of noncitizens. That case ushered in a new rule: State classifications based on alienage are “inherently suspect” and subject to strict scrutiny. But Graham’s rule has a major exception. Just a few years after Graham was decided, the Court upheld several state laws excluding noncitizens from working as police officers, public school teachers, and probation officers. So was created what would later be termed “political function” doctrine. …

Rethinking Objectivity: The Problem Of Pretext In The Fourth Amendment, Monu S. Bedi

Indiana Law Journal

Pretextual encounters continue to erode the legitimacy of the Supreme Court’s Fourth Amendment jurisprudence. Simply put, a police officer can act on personal bias or animus as long as the search or seizure is deemed “objectively reasonable.” Numerous scholars (e.g., Bennett Capers, Gabriel Chin, and David Harris) have critiqued this objective standard, contending it perpetuates discriminatory practices, particularly against communities of color. The late Justice Ruth Bader Ginsburg herself suggested that the Court might need to reconsider the legal precedent she helped establish. More recently, Orin Kerr has also argued that the Court’s reliance on objective determinations is inconsistent with …

The Addison C. Harris Lecture: Intellectual Diversity Mandates And The Freedom To Teach, Keith E. Whittington

Indiana Law Journal

This Essay provides the first examination of the Indiana Senate Bill 202, which was adopted into law in the spring of 2024. The new law imposes an “intellectual diversity” mandate on public university classroom teaching in the state. The law is novel in its approach but is part of a larger movement to intercede in what is taught in university classrooms. The intellectual diversity mandate raises difficult and unexamined conceptual, normative, and practical problems that will now demand attention from university officials in Indiana and that might soon confront university administrators in other states across the country if the Indiana …

Encampments And Property Law, Terry Skolnik

Indiana Law Journal

Although encampments have become increasingly common, they remain under-theorized, especially in the field of property law. Homeless encampments are ubiquitous in many cities. Social movements—such as Occupy Wall Street, the Freedom Convoy Movement, and college campus protests related to the war in Gaza—involve encampments that aim to catalyze social change. Yet surprisingly, legal scholars have devoted relatively little attention to encampments. This is a major oversight. Encampments matter for a range of moral, philosophical, and legal reasons that are hiding in plain sight and generate important theoretical and practical consequences that require deeper scrutiny.

This Article aims to fill this …

Representation In Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Indiana Law Journal

Millions of immigrants in the United States are facing threats of mass deportation under the second Trump Administration. At the same time, the Administration has sought to end federal programs aimed at providing basic information and guidance to immigrants in removal proceedings. In addition, large numbers of immigration judges have been fired from immigration courts that already face massive backlogs. Amidst these upheavals, deportation defense lawyers have come to occupy a more central role than ever in ensuring fairness and due process in immigration courts. Are certain groups of immigrants more likely to obtain legal representation than others? Among those …

The Nondiscrimination Principle, Zephyr Teachout

Fordham Law Review

No abstract provided.

جريمة تزوير المستند الالكتروني طبقا للمرسوم بقانون اتحادي رقم (46) لسنة 2021 بشأن المعاملات الإلكترونية وخدمات الثقة, كلثم راشد المزروعي

Theses

The Crime of Electronic Document Forgery under UAE Legislation: A Legal and Judicial Analysis in Light of Digital Transformation

This study examines the crime of electronic document forgery in light of rapid digital transformation and the challenges it poses to legal systems, particularly in the United Arab Emirates. The research problem lies in the absence of a comprehensive legal framework, the difficulty of classifying technologically evolving forms of forgery, and the challenges associated with proving such crimes using digital evidence.

The study aims to analyze the legal nature of electronic document forgery, distinguish it from traditional forgery, identify its elements …

Am. Civil Liberties Union Vs. Clark Cnty. School Dist., 142 Nev. Adv. Op. 24 (March 26, 2026), Jacob Stephenson

Nevada Supreme Court Summaries

Information contained in an investigative file is exempt from the NPRA’s general disclosure requirement to the extent that the information is confidential under NRS 289.080.

A Prosecutor’S Ethical Duty To Divert, Jordan Stevenson

Legal Writing Competition Winners

In an American courtroom, litigants are divided across an aisle, a gavel grants or divests rights, and a community takes sides. This creates a narrative of duality in the justice system, which many believe is vital to the adversarial legal system. A criminal trial is seen as perpetrator versus victim, but the legal posture is actually government versus individual. In fact, a prosecuting attorney has ethical obligations not just to victims, witnesses, and the broader community, but to defendants as well, in part due to their tremendous discretion to bring or dismiss criminal charges. A prosecutor’s power is far too …

Cardozo Alumna Taylor Brown ’17 Appointed Director Of Nyc's New Office Of Lgbtqia+ Affairs, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

Cardozo Law alumna Taylor Brown ('17) was appointed the inaugural director of New York City's Office of LGBTQIA+ Affairs. The announcement highlights Brown's historic appointment, her leadership in civil rights advocacy, and her previous work with the New York State Attorney General's Office, the American Civil Liberties Union, and Lambda Legal.

Unveiling The Patent Landscape Of Biologic Drugs, Michael D. Frakes, Melissa F. Wasserman

Northwestern University Law Review

It is undeniable that the escalating price of biopharmaceuticals is a critical issue, as high prices limit patients’ access to life-saving medications and strain our healthcare system. Biologics, or large-molecule drugs, which are revolutionizing modern healthcare, are significantly contributing to the escalating cost of prescription drugs. While biologic drugs represent only 2% of all U.S. prescriptions, they comprise close to 50% of net drug spending.

Policymakers have proposed a series of interventions to decrease drug prices that target the patent practices of pharmaceutical firms. Yet due to differences in law, we have a robust source of patenting information for small-molecule …

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Northwestern University Law Review

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 …