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The Columbia Law Review launched its Karl Llewellyn Lecture series on March 19, 2024, celebrating pioneers in the law who have innovated and challenged legal theory. The inaugural Lecture was delivered by Judge Guido Calabresi who spoke on the promise and peril of "Law and . . ." disciplines, such as Law and Economics, Law and Philosophy, and Law and History. A transcript of Judge Calabresi's Lecture is published in this Issue. [ABSTRACT FROM AUTHOR]

For the past several decades, the Supreme Court has repeatedly sought to reinterpret the meaning of "property" within federal fraud statutes to limit the degree to which federal prosecutors can regulate state official misconduct. While the Court's renewed interest in the federal fraud statutes has drawn varying degrees of praise and criticism from different sides of the legal community, this Note seeks to assess--in an apolitical, value-neutral fashion--whether the Court's doctrinal approach is effective in furthering the stated goal of drawing boundaries between federal and state actors in corruption cases. The Note first undertakes a deep-dive analysis of the evolution of the Court's mail and wire fraud jurisprudence. It then shows how even the most faithful applications of the Court's fraud doctrine lead to inconsistent outcomes and fail to provide lower courts or prosecutors with clear guidance on exactly what types of misconduct can fall within the purview of the fraud statutes. Concluding that the dissonance between the Court's clearly stated ideological objectives and the actual black-letter law of fraud jurisprudence is unsustainable, this Note explores alternative doctrinal approaches that might fix the current state of fraud jurisprudence. This Note contributes to the existing body of scholarship by not only offering a detailed accounting of the current state of fraud jurisprudence, but also providing a lens to analyze Supreme Court decisions that can be applied well beyond the fraud statutes themselves. [ABSTRACT FROM AUTHOR]

For people experiencing homelessness, lack of access to public bathroom facilities often forces the humiliating need to urinate or defecate in public. The bathroom options available to those experiencing homelessness do not meet the population's needs. One solution that scholars and local leaders have proposed is to ban customers-only bathroom policies. Such bans pose difficult legal and political questions. Most significantly, the recent Supreme Court case Cedar Point Nursery v. Hassid--which expanded takings doctrine and made government regulation of access rights more difficult--creates a complex legal roadblock for local lawmakers seeking to ban customers-only bathrooms. The academics, lawmakers, and activists who have discussed limitations or bans on customers-only bathrooms have yet to address the challenge posed by Cedar Point. This Note seeks to fill that gap by analyzing the landscape of takings jurisprudence after Cedar Point. It reaches two related conclusions. First, banning customers-only bathrooms would likely not be a taking. While Cedar Point ostensibly limited a host of access-rights regulations, it carved out several exceptions. Bans on customers-only bathrooms would likely fall into one such exception. The Court's broad holding may thus be less exacting than it appears. Second, regardless of whether these bans are takings, municipal leaders can best serve the public by providing just compensation for the access rights these bans carve out. This solution avoids the indeterminacies of Cedar Point, softens the political blow to business owners, and centers the experience and dignity of those living in homelessness. [ABSTRACT FROM AUTHOR]

The article introduces Participatory Law Scholarship (PLS), a form of legal scholarship developed in collaboration with individuals lacking formal legal training but with lived experience. It discusses PLS's theory and practice, emphasizing its potential to disrupt prevailing legal narratives and contribute to social and legal change. It also reflects on the author's collaboration with activists sentenced to life without parole.

This Article examines the paradigm shift that is occurring now that the Supreme Court has overturned Roe v. Wade. Returning abortion law to the states will spawn perplexing legal conflicts across state borders and between states and the federal government. This Article emphasizes how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for this aspect of the aftermath of Roe’s reversal. Judges and scholars, and most recently the Supreme Court, have long claimed that abortion law will become simpler if Roe is overturned, but that is woefully naïve. In reality, overturning Roe will create a novel world of complex, interjurisdictional legal conflicts over abortion. Some states will pass laws creating civil or criminal liability for out-of-state abortion travel while others will pass laws insulating their providers from out-of-state prosecutions. The federal government will also intervene, attempting to use federal laws to preempt state bans and possibly to use federal land to shelter abortion services. Ultimately, once the constitutional protection for previability abortion disappears, the impending battles over abortion access will transport the half-century war over Roe into a new arena, one that will make abortion jurisprudence more complex than ever before. This Article is the first to offer insights into this fast-approaching transformation of abortion rights, law, and access, while also looking ahead to creative strategies to promote abortion access in a country without a constitutional abortion right. [ABSTRACT FROM AUTHOR]

Issues relating to disability are undertheorized in the Supreme Court's Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendment's vast scope of police discretion renders individuals with disabilities vulnerable to policing and police violence. Although scholarship has engaged robustly with theories of criminalization and social control in critiques of Fourth Amendment doctrine that address race and racism, thus far, its engagement with disability and its intersections with other current and historically marginalized subordinated identities is limited. This Essay centers disability as a lens for analysis in Fourth Amendment jurisprudence. This Essay discusses the ways in which disability mediates interactions with law enforcement and how Fourth Amendment doctrine renders disabled people vulnerable to police intrusions and police violence. More specifically, this Essay critiques the Terry doctrine, consensual encounters, consent searches, and the objective reasonableness standard under Graham v. Connor. Applying a disability and critical race lens to each of these doctrines, taken together, demonstrates how Fourth Amendment doctrine both fails to adequately protect the constitutional rights of disabled people and reinforces a "normative bodymind" by rendering vulnerable to police surveillance, suspicion, searches, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm. By focusing on how Fourth Amendment doctrine both erases disability and fails to adequately protect disabled people's privacy and security interests, this Essay suggests how the doctrine itself renders disabled people more vulnerable to policing and police violence. [ABSTRACT FROM AUTHOR]

Bostock v. Clayton County has been widely recognized as momentous for providing LGBTQ Americans with protection against workplace discrimination, helping to safeguard their economic wellbeing and dignity. But it also has the potential to impact sex discrimination jurisprudence even more broadly. This Note argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include discrimination based on any characteristic that is definitionally related to, and thus logically inseparable from, sex. Situating this decision within sex discrimination jurisprudence and extrapolating from Title VII to the Fourteenth Amendment context, this Note demonstrates that Bostock's redefinition challenges earlier decisions that excluded certain forms of sex discrimination, such as pregnancy discrimination and reproductive choice restrictions, from equal protection's scope. Intentional or not, the majority's rationale ensured that the decision would enter into the decades-long search for the true meaning of sex discrimination. [ABSTRACT FROM AUTHOR]

Scholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary--and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas--such as abortion, affirmative action, or gun rights--they face a conundrum: To protect the legitimacy of the Court, the Justices may be reluctant to issue the broad precedents that will most effectively clarify the law--and thereby guide the lower courts. The Justices may instead opt for narrow doctrines or deny review altogether. But such an approach puts tremendous pressure on the lower courts, which must take the lead on the content of federal law in these high-profile areas. Presidents, senators, and interest groups then zero in on the composition of the lower courts--in ways that threaten the long-term legitimacy of the inferior federal judiciary. Drawing on political science and history, this Essay explores these legitimacy tradeoffs within our federal judicial hierarchy. To the extent that our legal system aims to protect the legitimacy of the judiciary, we should consider not simply the Supreme Court but the entire federal bench. [ABSTRACT FROM AUTHOR]

This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The Founding generation didn't share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power-- let alone by empowering the judiciary to police legalized limits. To the contrary, the Founders saw nothing wrong with delegations as a matter of legal theory. The formal account just wasn't that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued. Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. The early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning. [ABSTRACT FROM AUTHOR]

In the 1951 case United States ex rel. Touhy v. Ragen, the Supreme Court determined that courts can't hold federal agency officials in contempt for refusing to comply with nonparty subpoenas if they do so pursuant to valid agency regulations. Though the Court suggested that litigants could still challenge these noncompliance decisions, it didn't flesh out what that process would look like. Following Touhy, federal courts have split. When it comes to civil, federal court litigation, a plurality of circuits evaluate agencies' noncompliance decisions under the Administrative Procedure Act (APA), while a minority of circuits do so under the Federal Rules of Civil Procedure (FRCP). This Note serves two primary purposes. First, it estimates the effect of the APA-FRCP split on nonparty discovery outcomes. Using a logistic regression analysis, it finds that a litigant proceeding under the FRCP can expect about a twenty-six percentage-point greater chance of obtaining discovery compared to a similarly situated litigant proceeding under the APA. Second, it proposes ways to mitigate the breadth and potency of the split. Courts can limit the number of contexts where the circuit split comes into play by applying traditional tools of interpretation to the statute giving agencies authority over their employees' subpoena responses. And plurality-approach courts can close the discovery-outcome gap (where the split remains) by ensuring their analyses import into the Touhy context the APA's administrative law safeguards, not just its deferential arbitrary and capricious standard. [ABSTRACT FROM AUTHOR]

During her twenty-five-year tenure on the Supreme Court, Justice Sandra Day O'Connor became one of the most admired figures in American public life. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. In this Book Review, a former O'Connor clerk describes a legacy in three parts: a lived example of how to thrive in the face of challenges, a jurisprudence driven by the courage to make compromises, and a theory about the long game of American democracy. First reintroduces O'Connor's voice at a critical moment in our national conversation. Although First sounds wistful notes about what seems a bygone era, it also contains hopeful lessons about repairing American civic life. [ABSTRACT FROM AUTHOR]

The article discusses the United States Supreme Court case Ortiz v. United States (Ortiz) which deals with the appointment of a military judge, and it mentions the Ortiz matter in relation to intrabranch litigation issues, America's Court of Appeals for the Armed Forces (CAAF), and justiciable cases and controversies under Article III of the U.S. Constitution. Government appeals from the CAAF are assessed, along with jurisprudence, America's military justice system, and adverse parties.

Courts, scholars, and advocacy organizations across the political spectrum are calling on the Supreme Court to limit qualified immunity or do away with the defense altogether. They argue--and ofer compelling evidence to show--the doctrine bears little resemblance to defenses available when Section 1983 became law, undermines government accountability, and is both unnecessary and ill-suited to shield government defendants from the burdens and distractions of litigation. Some Supreme Court Justices appear to share critics' concerns. Indeed, in 2017, Justice Thomas wrote that "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence." If the Court does reconsider qualified immunity, it will find compelling reasons to abolish or greatly limit the defense. Yet the Court may be reluctant to take this type of dramatic action for fear that doing so would harm government and society as a whole. This Article ofers five predictions about how constitutional litiga- tion would function in a world without qualified immunity that should assuage these concerns. First, there would be clarification of the law but modest, if any, adjustment to the scope of constitutional rights. Second, plaintifs' and defendants' litigation success rates would remain relatively constant. Third, the average cost, time, and complexity associated with litigating constitutional claims would decrease. Fourth, more civil rights lawsuits would likely be filed, but other doctrines and financial considerations would mean that attorneys would continue to have strong incentives to decline insubstantial cases. Fifth, indemnification and budgeting practices would continue to shield most government agencies and ofcials from the financial consequences of damages awards. If these predictions are correct, abolishing qualified immunity would clarify the law, reduce the costs of litigation, and shift the focus of Section 1983 litigation to what should be the critical question at issue in these cases--whether government ofcials have exceeded their constitutional authority. But eliminating qualified immunity would not significantly alter the scope of constitutional protections, dramatically increase plaintiffs' success rates, or transform government practices that currently dampen the efects of lawsuits on ofcers' and ofcials' decisionmaking. Doomsday scenarios imagined by some commentators--of courthouses flooded with frivolous claims--would not come to pass. And constitutional litigation would often still fail to hold government officials accountable when they exercise power irresponsibly. The Supreme Court should not avoid reconsidering qualified immunity for fear that doing so would dramatically magnify the efects of lawsuits against government ofcials. And government accountability advocates should recognize that eliminating qualified immunity would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter government wrongdoing. [ABSTRACT FROM AUTHOR]

The Supreme Court's 2018 Jesner v. Arab Bank, PLC decision caused uncertainty for future and ongoing Alien Tort Statute (ATS) litigation in federal courts. In holding that foreign corporations are not subject to liability under the ATS, the Court foreclosed one avenue human rights plaintiffs have sought to use for the past few decades to garner attention, and in some cases receive significant monetary settlements, for the abuses. Further, the Court's decision cast doubt on whether domestic corporations remain subject to the ATS given the weight the Court placed on separation of powers concerns in its decision. While foreign corporations, and perhaps domestic corporations, can no longer be haled into federal court using the ATS, both the Jesner Court and commentators suggest that plaintiffs are not without a remedy--the corporate officials responsible for the human rights violations remain liable. This Note argues that suits against corporate officers, directors, and employees raise complicated choice of law issues the Court has avoided addressing in ATS suits against corporations, but courts will be forced to address in suits against individual corporate officials. The Note finds that the choice of law determination on ancillary liability issues will prove outcome determinative in these cases given the different liability laws for corporate officials in different jurisdictions. This factor will create significant uncertainty for courts and litigants about whether cases against corporate officers, directors, and employees can be brought under the ATS, as the Court's current ATS jurisprudence provides little direction for resolving choice of law issues in ATS cases. The Note proposes that federal courts require the applicable choice of law inquiry to yield the conclusion that U.S. law (state or federal) controls all aspects of the case beyond the substantive allegation of a violation of the law of nations for any suit against a corporate official to be cognizable using the ATS. [ABSTRACT FROM AUTHOR]

In 2018, the Supreme Court held in National Institute of Family & Life Advocates v. Becerra (NIFLA) that requiring a crisis pregnancy center to place a sign in its waiting room alerting people to available abortion services elsewhere violated the First Amendment. Abortion providers are often faced with similar requirements--but the Court's cursory treatment of the First Amendment in Planned Parenthood of Southeastern Pennsylvania v. Casey left their rights in flux for decades. Commentators lamented that the Court saw fit to protect a crisis pregnancy center from state-written compelled speech but left abortion providers without the same constitutional protections. This Note argues that, far from exempting abortion providers from its holding, NIFLA in fact provides the first Supreme Court guidance since Casey for interpreting state informed consent statutes that implicate the speech of abortion providers. The reasoning of NIFLA compels the conclusion that "pure speech" for the crisis pregnancy center must be "pure speech" for the abortion provider. This Note proceeds in three parts. Part I provides an overview of the law of compelled speech, abortion jurisprudence, and how these two disparate areas of the law have converged in the courts prior to NIFLA. Part II argues that NIFLA should force lower courts to reckon with what constitutes "conduct" in the abortion context and what must constitute "pure speech." Part III uses NIFLA's language to develop a framework to assess whether a restriction regulates conduct or speech in the abortion context and demonstrates how such a framework could be applied to ubiquitous informed consent restrictions passed in states across the country. [ABSTRACT FROM AUTHOR]

This Note attempts to resolve a significant impediment to the religious free exercise of prisoners. The Religious Land Use and Institutionalized Persons Act (RLUIPA) forbids the government from placing a "substantial burden" on a prisoner's religious exercise. Congress did not define substantial burden in the statute, instead indicating that courts should rely on the Supreme Court's free exercise jurisprudence for a definition. Despite congressional advisement, differing methods of statutory interpretation led to a circuit split over the term's definition. One "plain-meaning" group of circuits defined substantial burden textually, while a second "jurisprudential" group defined it as intended through existing free exercise precedent. In 2015, the Supreme Court exacerbated the split in Holt v. Hobbs. In dicta, the Court wrote that a substantial burden requires an inmate "to engage in conduct that seriously violates [their] religious beliefs." The plain-meaning circuits adopted this language as a standalone definition, but the jurisprudential circuits held fast to their previous definition. The difference between the two definitions is significant for religious inmates. Under the Holt definition, plain-meaning courts employ a "conduct-focused" analysis for their substantial burden inquiry: Inmates must show that they were forced to "engage in conduct" that seriously violates their beliefs. By contrast, jurisprudential courts maintain a "pressure-focused" analysis, which considers government pressure applied onto the inmate as the harm, rather than the inmate's resulting conduct. This Note argues that the conduct-focused approach is inappropriate in the penal context. It calls on the Supreme Court to resolve the circuit divide and to further reconcile inherent differences between RLUIPA's penal and economic contexts. As a remedy, this Note suggests a penal-specific definition of substantial burden that applies a pressure-focused style of analysis, similar to the Supreme Court's early Sherbert-Thomas framework. [ABSTRACT FROM AUTHOR]

Free speech cannot be progressive. At least it cannot be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even pro- tect progressives against the possibility of catastrophic outcomes. But the notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. The American free speech tradition is too deeply rooted in ideas about fixed property rights and in an equation of freedom with government inaction to be progressive. Instead of wasting energy on futile efforts to upend our First Amendment traditions, progressives should work to achieve their goals directly. [ABSTRACT FROM AUTHOR]

The Supreme Court's "weaponized" First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a "new Lochnerism." In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment by elected officials, interest groups, and bureaucrats. These opinions limit the power of government to implement distributional judgments in key areas of policy and, by thus tying the government's hands, constrain opportunities for entrenchment. This antidistributive deployment of market-protecting policy is the signature of neoliberal jurisprudence. But this jurisprudence has deep problems in an order of capitalist democracy such as ours. Whenever the state cannot implement distributional judgments, markets will do so instead. Market distributions are, empirically speaking, highly unequal, and these inequalities produce their own kind of entrenchment--class entrenchment for the wealthy. A jurisprudence that aims at government neutrality by tying the distributional hands of the state cannot achieve neutrality but instead implicitly sides with market inequality over distinctively democratic forms of equality. Once we see that any constitutional vision involves some rela- tionship between the "democratic" and the "capitalist" parts of capitalist democracy, it becomes possible not just to criticize the Court's siding with market winners but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy. [ABSTRACT FROM AUTHOR]

There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police surveillance. And this is just the start. Read between the lines, and the Court’s “citizenship talk” also dictates how a good citizen should behave, move, and even speak. Criminal Procedure and the Good Citizen surfaces this aspect of the Court’s criminal procedure decisions to explore a series of questions about the nature of power, participation, and citizenship today, especially with respect to the police. These concerns alone should be reason enough to question the Court’s citizenship talk. But there is another concern as well. At this time—when the criminal justice system is the primary civics education for so many individuals, when so many criminal procedure opinions are also on a certain level race opinions—the Court’s citizenship talk may very well further inequality. This Essay addresses these concerns. And it takes a first step in imagining a space in which citizens would have the ability, without repercussions or recrimination, to talk back to the police, to ask why and how come, to assert their rights, to question and test the boundaries of the law, and to say “no.” [ABSTRACT FROM AUTHOR]

Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them. This Article offers an innovative mechanism that remediates the shortcomings of extant partial takings doctrines. It proposes that the government give owners whose property is partially taken the power to force the government to purchase the remainder of the lot at fair market value. Exercise of this power by the private owner would lead to the reunification of the land in its pretaking form while transferring title to the entire parcel to a new single owner—namely the government. Implementation of our proposal would yield important benefits, including allowing for the preservation of current parcel configuration, lowering the cost of the adjudication process as a whole, and reducing the ability of the government to behave strategically. Additionally, our proposal would create opportunities for more efficient planning and land use by the government as the government would be free to reparcel, develop, and resell the parcels sold to it. [ABSTRACT FROM AUTHOR]

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that "the power to wage war is the power to wage war successfully." That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes's own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day-namely, a national draft and intrusive federal economic regulation. Though critical to supporting American military operations in Europe, these were primarily questions about Congress's domestic authority-not the sorts of interbranch issues that naturally come to mind today in thinking about "waging war." This Article also shows, however, how Hughes struggled unsuccessfully to define when war powers should turn off or revert to peacetime powers. The story of Hughes's defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of indefinite and sweeping wars against transnational terrorist groups. [ABSTRACT FROM AUTHOR]

In Reed v. Town of Gilbert the Supreme Court rearticulated the standard for when regulation of speech is content based. This determination has already had a large impact on cases involving panhandling regulations and is likely to result in the invalidation of the majority of this nation's panhandling laws. This Note will begin with a discussion of First Amendment doctrine and how panhandling is protected speech. This Note will then demonstrate that it is helpful to think of panhandling regulations categorically and explore how these categories of panhandling laws have fared in lower courts. This Note will then discuss the holding in Reed and how jurisdictions have already begun to invalidate panhandling laws. Finally, this Note proposes using the captive audience doctrine to uphold the validity of some salutary panhandling regulations while invalidating laws that are burdensome and oppressive to free expression. [ABSTRACT FROM AUTHOR]

Balancing the harms and benefits of speech--what this Article calls "free speech consequentialism"--is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This Article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech's harms greatly outweigh its virtues. Courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. This Article develops a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. It then applies this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and violent speech--with the aim of rehabilitating core values of our First Amendment doctrine and practice. [ABSTRACT FROM AUTHOR]

This Essay offers a specification of the rule of law's demands of administrative law and government inspired by Professor Peter L. Strauss's scholarship. It identifies five principles--authorization, notice, justification, coherence, and procedural fairness--which provide a framework for an account of the rule of law's demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President's power to direct subordinate officials and giving weight to an agency's determination of the scope of its own authority. On the other hand, these rule-of-law principles expose some long-established practices as having troublesome foundations, such as the settled doctrine that agencies need not justify their choice of policymaking form. Consideration of these principles in the context of administrative law and government ultimately shows--like so much of Professor Strauss's work--the many ways in which government under law ultimately depends on officials taking the rule of law as their highest-order commitment. [ABSTRACT FROM AUTHOR]

As presently constructed, equal protection doctrine is an identitybased jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling. Equal protection's current use of identity as proxy leads to a number of problems, including difficulties in defining identity categories; the tendency to privilege a dominant-identity narrative; failure to distinguish among the experiences of subgroups within larger identity categories; and psychological and emotional harm that can result from being forced to identify in a particular way to lay claim to legal protection. Moreover, because the Court's identity-as-proxy jurisprudence relies on superficial notions of identity to fulfill a substantive commitment to equality, it is susceptible to co-option by majority groups. This Essay aims to engage readers in a thought experiment, to envision what equal protection doctrine might look like if it were structured to reflect the values identity is intended to serve without explicitly invoking identity categories as a way to delineate permissible and impermissible forms of discrimination. In doing so, it aims to incorporate directly into equal protection jurisprudence the notion that identities like race and gender are not merely a collection of individual traits, but the product of structural forces that create and maintain subordination. Under the "value-based" approach proposed herein, the primary concern of equal protection is not to eliminate differential treatment, but instead to deconstruct status hierarchies. Therefore, rather than applying heightened scrutiny to government actions based on race or gender, it applies heightened scrutiny to government actions that have the effect of perpetuating or exacerbating a history of discrimination or that frustrate access to the political process. The clearest impact of such a model would be in the context of affirmative action, where a majority plaintiff could no longer simply claim discrimination on the basis of race. Yet, the potential of a valuebased model extends to other contexts as well--for example, challenges to voter identification laws, in which political exclusion would displace discriminatory intent and disparate impact as the relevant measure for analysis; and the treatment of pregnant women, in which discrimination on the basis of pregnancy would no longer have to align with gender to receive heightened scrutiny. This shift has several advantages: It allows the law to make important distinctions between groups and within groups; it alleviates the need for comparative treatment and solutions that favor taking from all over giving to some; it is less likely to generate identity-based harms; it is fact-driven rather than identity-driven and thus better suited to the judicial function; and it serves an important rhetorical function by changing the nature of rights discourse. [ABSTRACT FROM AUTHOR]

This Article analyzes the federal courts' power to provide public remedies when the legislature has been silent. Like private parties, the United States and the states regularly claim a right to judicial relief or a particular remedy that is not mandated by a federal legislative text. Scholars have mined the depths of implied private rights of action, but have all but ignored implied public rights of action. This Article fills that gap. In particular it argues that when a public litigant sues in what amounts to a private capacity, courts should treat it like a private litigant by placing appropriate constraints on implied rights of action. Conversely, when a public litigant sues in a uniquely public capacity, a significantly more generous implication doctrine is appropriate. Contrary to some common wisdom, when a government sues in a corporate capacity to protect garden-variety property and contract interests, there is no special reason for courts to recognize a right of action. Nor should federal courts broadly provide public rights of action when a government seeks to substitute public for private enforcement of the private rights of its citizens. By contrast, federal courts should more freely imply rights of action when a government sues to vindicate public interests. In the modern administrative state, a public litigant often claims an implied right of action to implement a regulatory program. A government may also sue to vindicate its institutional immunities and authority to regulate. That government powers, rather than rights, imply public remedies may seem a paradox. It is not, or so this Article argues. [ABSTRACT FROM AUTHOR]

In Bostick and Drayton, the Supreme Court announced that per se rules were inappropriate in answering the Fourth Amendment seizure question, "Would a reasonable citizen feel free to leave?" But when, if ever, can one factor in a pedestrian encounter with police be so inherently coercive that it becomes dispositive? The D.C. and Fourth Circuits explicitly disagree over whether police retention of identification documents constitutes such a factor. The D.C. Circuit has held that such retention is a per se seizure because a citizen cannot feel free to leave when her documents are in police hands. In contrast, the Fourth Circuit rejected this reasoning on the grounds that a citizen can always demand the return of her documents. Contrary to its strong wording, however, the Supreme Court's rejection of per se rules is not so absolute, and in fact, per se rules do apply where single factors are inherently coercive. Two related areas of Fourth Amendment jurisprudence--traffic stops and voluntariness of consent--demonstrate that courts typically recognize this inherent coercion in police retention of documents. Further, the Fourth Circuit's approach fails to reflect accurately citizens' true feelings of restraint in these contexts, as explored in recent empirical studies. Instead, the D.C. Circuit's approach takes into account the power disparity present where police retain identification. Its per se rule not only clarifies the standard for courts but also creates clear conduct rules and places the burden of monitoring coercive force on the police, who are best equipped to do so. [ABSTRACT FROM AUTHOR]

An axiom of institutional design is known as the ally principle: All else equal, voters, legislators, or other principals will rationally delegate more authority to agents who share their preferences ("allies"). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation--from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts--universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. This Essay identifies an enemy principle: In certain cases principals rationally delegate, not to allies, but to enemies or potential enemies--agents who do not share the principal's preferences or whose preferences are uncertain at the time of the delegation. We describe these cases of delegating to enemies, explain the mechanisms on which they rest, and offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step toward a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases. [ABSTRACT FROM AUTHOR]

Beginning in the 1930s, Reconstruction historiography underwent a dramatic change. Early-twentieth-century historians of Reconstruction viewed aggressive federal intervention to protect the civil rights of freed slaves as a mistake, and they celebrated the Compromise of 1877 and the subsequent retreat from Reconstruction. These historians also praised the decisions of the Supreme Court that offered narrow interpretations of Congressional power under the Thirteenth, Fourteenth, and Fifteenth Amendments. Modern historians reject the works of early historians of Reconstruction as incomplete, unbalanced, and often racist. Beginning with W.E.B. Du Bois in the 1930s, revisionist historians have reexamined the Reconstruction Era and developed a narrative that praises the Republicans who sought to protect the rights of freed slaves and the freed slaves themselves, who fought for civil and political rights during Reconstruction and its aftermath. Unfortunately, the legal profession and the courts have been slow to embrace the revolution in Reconstruction historiography. This Essay argues that a historical narrative of Reconstruction repudiated by historians continues to exert an outsized influence on Supreme Court jurisprudence, and that judicial unwillingness to overturn flawed Reconstruction-era precedents hinders the cause of equality before the law even today. It suggests that the overdue judicial repudiation of precedents resting, in part, on a faulty interpretation of Reconstruction's history would have a salutary effect on the Supreme Court's Thirteenth and Fourteenth Amendment jurisprudence. [ABSTRACT FROM AUTHOR]

This Essay offers a unified framework for understanding how law can protect a vulnerable person from a powerful one. One option law has is to penalize the powerful person if she harms the vulnerable person. This option can be called a "harm rule." But sometimes law shifts its focus from regulating the infliction of harm to regulating a person's accumulation of power to inflict harm. Legal rules that reflect this shift in focus can be called "power rules"; they expressly restructure underlying relations of power and vulnerability. Power rules allow legal regulation of situations in which rules directly regulating harm are not possible. Even when harm rules are possible, power rules can complement harm rules and improve their effectiveness. But power rules have drawbacks, too: They tend toward overbreadth, encourage merely expressive lawmaking, and increase enforcement discretion. The concept of power rules helps explain patterns in the use of legal rules, especially in the contexts of bargaining, competition, violence, persuasion, and the performance of relational statuses (e.g., status as a fiduciary). This concept also illuminates the tradeoffs involved when lawmakers choose among different methods of protecting vulnerable persons. [ABSTRACT FROM AUTHOR]

This Note explores problems with the U.S.-Peru Free Trade Agreement's labor chapter. These problems result from the ambiguity in its novel and celebrated provision obligating both countries to uphold the principles in the International Labor Organization's Declaration on Fundamental Principles and Rights at Work. While the Bush Administration and pro-labor members of Congress hailed the provision as a substantial improvement on labor protections in previous trade agreements, the potential effectiveness of the new obligation is limited by the inherent vagueness of the ILO Declaration's principles. The Peru Agreement exacerbates this vagueness by explicitly detaching the principles from the ILO jurisprudence that informs them. Beyond the potential threat to the labor chapter's effectiveness, this vagueness can encourage flexible and divergent interpretations of the ILO's principles and further obscure their content. This Note proposes two possible solutions to overcome this limitation: (1) interpret the obligation with reference to the relevant ILO jurisprudence, and/or (2) establish a cooperative program with the ILO in which it would monitor compliance. The labor chapter in the U.S.-Peru Agreement could set the template for future free trade agreements, and it is thus important that its new obligation function effectively. As the United States continues to link free trade agreements with labor standards, it is increasingly important that these standards result in more than just lip service to international labor norms. [ABSTRACT FROM AUTHOR]

In the 1985 case of United States v. Hensley, the Supreme Court ruled that the Fourth Amendment permits police officers to perform warrantless investigatory stops for completed felonies. However, Hensley explicitly declined to address whether the Fourth Amendment allows such stops to investigate suspicion of completed misdemeanors. Since then, courts have ruled inconsistently on this issue, creating uncertainty in this important area of search and seizure law. This Note attempts to settle this uncertainty by examining the Fourth Amendment's text, history, and jurisprudence. It argues that warrantless stops to investigate completed misdemeanors are constitutional when the underlying crime presents an ongoing danger. [ABSTRACT FROM AUTHOR]

Under Michigan v. Long, a police officer may conduct a limited protective search of a vehicle when the officer has a reasonable suspicion that a suspect is armed and dangerous. Courts evaluating these protective searches, however, have split over the proper method of applying the ‘reasonable suspicion’ standard. The first approach, which this Note calls the objective approach, frames the inquiry as one of objective reasonableness and examines the totality of the circumstances from the viewpoint of a hypothetical officer: If a hypothetical officer could have sensed danger, the search was justified, whether or not the officer on the scene actually perceived a need to conduct the protective search. The second approach, the subjective-objective approach, instead asks two questions: (1) Did the searching officer suspect that the driver was armed and possibly dangerous? (2) If so, was that suspicion objectively reasonable? This Note argues that neither approach is wholly satisfactory. The objective approach permits a judge to substitute his or her own judgment for the judgment of the officer on the scene and transforms the limited protective search exception into an all-encompassing justification for otherwise impermissible police conduct. The subjective-objective approach hinges application of the exclusionary rule on the searching officer's ability or willingness to invoke the ‘magic words’ of subjective fear during the suppression hearing. Given the distorting effect of the exclusionary rule on Fourth Amendment jurisprudence, this Note proposes a modified approach to the protective search inquiry that remains true to the language of Michigan v. Long but also recognizes the pressure the exclusionary rule exerts on courts reviewing these searches after the fact. [ABSTRACT FROM AUTHOR]

The article focuses on E. Allan Farnsworth, one of the world's best known and most esteemed experts on international and comparative contract law. His contributions to the Restatement (Second) of Contracts was significant. Farnsworth lived more than a quarter century after completing the drafting, and he provided much additional commentary and perspective of his own on the Restatement in speeches and in his books and articles. One occasion when he did so was at an appearance at a Federalist Society Symposium on Law and Economics in 1997. Farnsworth seemed to find it a delicious joke that he had been invited to speak at a gathering.

State sentencing guidelines systems differ in their goals, scope of cover- age, design, and operation. There are also many similarities, suggesting a substantial degree of consensus on some issues. This Essay surveys the field of state guidelines systems to identify critical areas of diversity and consensus-both in guidelines design and in the philosophical and policy goals of guidelines reform. For states considering adopting guidelines or modifying an existing guidelines system, the varying approaches found in existing systems provide a rich menu of reform options. At the same time, the Supreme Court `s recent Blackwell jurisprudence has provided both the necessity and the opportunity to reexamine many of the most fundamental sentencing policy issues underlying guidelines reforms. To assist policy makers and scholars in their evaluation of these difficult issues, this Essay identities and analyzes several of the most salient guidelines policy choices about which no consensus has yet been reached, and suggests avenues for future research. These issues include resolving conflicting aims of punishment, determining the role that existing resource constraints should play in the making of sentencing policy, evaluating competing enforcement methods for guidelines rules, deciding whether to retain parole release discretion, and determining the extent to which guidelines should regulate intermediate sanctions, misdemeanor sentencing, revocation of probation and post prison release, and prosecutorial charging decisions. [ABSTRACT FROM AUTHOR]

In Georgia v. Ash croft, the Supreme Court redefined the standard of review applied to section 5 of the Voting Rights Act, holding that when making preclearance determinations, administrators must consider minority influence in the political process even where it is too small to enable minorities to elect a candidate of their choice. Dissenting, Justice Souter declared the new standard unadministrable and section 5 "substantially diminished." This Note argues that while Ash croft fundamentally changed section 5 's evaluative framework, it did not render the section unadministrable. Although Ash croft raised significant problems regarding how to define and quantify minority influence, section 5 administrators can rely on methods of analysis traditionally utilized in voting rights jurisprudence-focusing on racially polarized voting analyses; prioritizing the ability to elect over other forms of influence; and using the Senate factors to identify influence short of electability-to help them wade through the morass in a principled way. [ABSTRACT FROM AUTHOR]

This article is about Justice Ruth Bader Ginsburg and her contributions to various aspects of the Court's jurisprudence. The author talks about Great-West, Employee Retirement income Security Act, an ERISA decision in which she wrote for the minorities. Great-West is the most recent expression of what has been an ongoing and important debate on the meaning of original understanding of the act, particularly when the Constitution or statutes refer to common law institutions.

In this Article, Professor Spaulding reorients criticism of the Rehnquist Court's federalism jurisprudence as it has emerged in decisions limiting congressional prerogatives under Article I and Section 5 of the Fourteenth Amendment. He argues that the Rehnquist Court's recent revival of robust antebellum federalism principles turns on a "chillingly amnesic" suppression of the structural significance of the Civil War and Reconstruction Amendments. In Professor Spaulding's view, the conditions for saving and restoring the Union after the Civil War are just as relevant to reasoning about state sovereignty as the conditions for entering the Union at the Founding. The Rehnquist Court avoids the deep implications of Reconstruction for federalism only by relying on what Professor Spaulding terms "monumentalist" historical consciousness—a technique of historical and doctrinal analysis that simultaneously exalts certain first principles of federalism established at the Founding while systematically diminishing the plain exertion of national power over the states during the Civil War and Reconstruction. Professor Spaulding argues that we can begin to recover the significance of the War and Reconstruction for federalism principles through the method of countermemory—a form of historical consciousness that seeks to reveal both the perverse desire animating monumentalist memory work and the inconvenient facts it is so prone to forget. Viewing the Reconstruction Amendments as "countermonuments," Professor Spaulding contends, means reading them as written against the very robust antebellum principles the Court now seeks to revive. However radical this approach toward interpretation of the Reconstruction Amendments may seem, Professor Spaulding argues that it is nevertheless consistent with the Rehnquist Court's insistence that history and constitutional structure matter as much, if not more, than strict textualism in interpreting federalism principles. [ABSTRACT FROM AUTHOR]

Many of the federal government's "orders" to states come in the form of money with strings attached. Spending Clause programs typically require that states administer programs according to certain specifications. However, the federal government itself rarely enforces these mandates. Instead, the beneficiaries of these programs have themselves enforced federal requirements by filing Section 1983 lawsuits against states that fail to honor commitments made in accepting federal funds. The recent Supreme Court decision Gonzaga University v. Doe has left unclear whether these suits remain possible, and, if so, when lower courts should allow them. This Note advocates a narrow but meaningful reading of Gonzaga, under which suits enforcing Spending Clause statutes are permitted so long as the violated statutory provisions are tightly focused on benefiting the plaintiffs. It argues that interpreting Gonzaga to dramatically restrict Section 1983 is unsound policy and ignores the Court's reluctance to explicitly make such far-reaching changes. [ABSTRACT FROM AUTHOR]

Focuses on the legal debate on the conception of family in the U.S. Vision of family by the Western culture; Response of the American law to family issues; Value of autonomous individuality in the family; Unsuitability of constitutional jurisprudence to resolve the debate on family.

Examines the use of overbreadth in abortion jurisprudence in the United States. Plaintiffs seeking to avoid prosecution under an alleged unconstitutional statute; Awarding of facial relief; Awarding of as-applied relief; Exceptions to abortion jurisprudence.

The article presents the proceedings of a symposium organized to celebrate the tenth anniversary of Justice Ruth Bader Ginsburg's appointment to the Supreme Court of the U.S. Contributors to the Symposium reflected on the accomplishments of Justice Ginsburg, both prior to and since her appointment to the Court. Six scholars address the contributions of Justice Ginsburg to the jurisprudence of the Supreme Court. Three further contributions examine the inclusive jurisprudence of Justice Ginsburg.