article review for law

Harvard Law Review

Volume 137 issue 7 may 2024, in memoriam: justice sandra day o’connor.

The editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O’Connor.

• John G. Roberts Jr.
• Stephen G. Breyer
• Justin Driver
• Cristina Rodríguez
• Stewart J. Schwab
• Eugene Volokh

Bail at the Founding

• Kellen R. Funk
• Sandra G. Mayson

The Second Coming of Political Liberalism

The role of certiorari in emergency relief, “hereinafter”: workplace protections, the state attorney general’s settlement toolkit, and injunctive relief, kānāwai from ahi: revitalizing the hawai‘i water code in the wake of the maui wildfires, halting administrative action in the supreme court, the presumption against novelty in the roberts court’s separation-of-powers case law, kiviti v. bhatt.

Fourth Circuit Holds that Article III Mootness Doctrine Does Not Apply to Bankruptcy Proceedings.

Colindres v. United States Department of State

D.C. Circuit Defers to Consulate’s Visa Denial.

K & R Contractors, LLC v. Keene

Fourth Circuit Declines to Consider Constitutionality of Removal Protections Because of Lack of Injury.

Lee ex rel. Gap, Inc. v. Fisher

Ninth Circuit Enforces Forum Selection Clause Blocking Derivative Suits.

Doe v. William Marsh Rice University

Fifth Circuit Advances Novel Theory of Liability for Anti-Male Discrimination.

Letter From Gavin Newsom, Governor Of California, To Members Of The California State Senate (Sept. 30, 2023)

California Governor Vetoes Bill to Extend Occupational Health and Safety Protections to Domestic Workers.

Platform Accountability and Transparency Act, S. 1876, 118th Cong. (2023)

U.S. Senate Introduces Mandatory Reporting And Disclosure Law For Social Media Platforms.

About the Harvard Law Review

Founded in 1887, the Harvard Law Review is a student-run journal of legal scholarship. The Review is independent from the Harvard Law School and a board of student editors selected through an anonymous annual writing competition make all editorial decisions. The print Review and its online companion, the Forum , are published monthly from November through June. The Review , the Forum , and online Blog welcome submissions throughout the year.

“An Arbitrary Fraction”: How the Family and Medical Leave Act Fails Rural Workers

• Melanie Hagerman

Honoring Statutory Restraint in Conflicts Analysis

• Katherine Florey

Bending Gender: Disability Justice, Abolitionist Queer Theory, and ADA Claims for Gender Dysphoria

Voluntary prosecution and the case of animal rescue.

• Justin Marceau
• Wayne Hsiung
• Steffen Seitz

Extrajudicial Segregation: Challenging Solitary Confinement in Immigration Prisons

• Felipe De Jesús Hernández

The Constitution of Difference

• Guy-Uriel E. Charles
• Luis E. Fuentes-Rohwer

Thoughts on Law Clerk Diversity and Influence

• Todd C. Peppers

On the Limits of ADA Inclusion for Trans People 

• A.D. Sean Lewis

Civil Suits by Parents Against Family Policing Agencies

• Alexa Richardson

Originalism Makes Sense: A Response

• Elias Neibart

A Thought Experiment: Does Originalism Make Sense?

• In Kyu Chung

NYT v. OpenAI: The Times’s About-Face

• Audrey Pope

The Fourteenth Amendment is Not a Bill of Attainder

• Henry Ishitani

More from the Archives

Coloring in the fourth amendment.

• Daniel S. Harawa

Non-extraterritoriality

• Carlos M. Vázquez

Contract-Wrapped Property

• Danielle D’Onfro

Transinstitutional Policing

• Sunita Patel

Interrogating Dominion: On Political Theology and Summary Process Eviction in Connecticut

• James Stevenson Ramsey

The Anti-Klan Act in the Twenty-First Century

• William M. Carter Jr.

Book Reviews

Will the real shareholder primacy please stand up.

• Ann M. Lipton

Unshielded: How the Police Can Become Touchable

• Brandon Hasbrouck

Remembering Judy Heumann

• Robyn M. Powell

Honoring Judy Heumann’s Legacy

• Michael Ashley Stein

Recently Cited

The student pieces featured below have been recently cited in judicial opinions and legal scholarship.

Shinn v. Ramirez

United states v. tuggle, freedom from religion foundation, inc. v. mack, united states v. varner, uzuegbunam v. preczewski, transunion v. ramirez, haskins v. 3m co., payday, vehicle title, and certain high-cost installment loans, revitch v. directv, llc, wilson v. houston community college system, geofence warrants and the fourth amendment, mcgirt v. oklahoma.

The Strange Career of Antisubordination

I received insightful feedback on this project from Kate Andrias, Jack Balkin, William Baude, Samantha Bensinger, Gregory Briker, Jonathan Entin, Laura Ferry, Owen Fiss, Heather Gerken, Julius Getman, Emma Kaufman, Randall Kennedy, Sanford Levinson, Jonathan Masur, Samuel Moyn, Kerrel Murray, Lucas Powe, John Rappaport, David Schleicher, Reva Siegel, Jordan Thomas, and Melvin Urofsky. I received excellent research and editorial assistance from Ella Bunnell, Rosemary Coskrey, Sydney Daniels, Sean Foley, Alex Friedman, Liam Gennari, Remington Hill, Eric Jjemba, Jim Huang, Alexandra Johnson, Charlotte Lawrence, Zoe Li, Romina Lilollari, Henry Wu, and Logan Wren. I am grateful to the University of Chicago Law Review ’s editorial team for deftly shepherding this Article to publication.

Current Print Issue

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. On no issue have these competing perspectives clashed more intensely than affirmative action. This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action’s constitutionality. It will no longer do, however, simply to ignore antisubordination’s considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas’s much-debated jurisprudence but also clarifies our nation’s garbled constitutional discourse.

This Article was supported by outstanding research assistance from Margaret Baughman, Qi Lei, Yizhou Shao, and Joanna Zhang. For generous comments, I thank William Alford, Ngoc Son Bui, William Buzbee, Anupam Chander, Habin Chung, Donald Clarke, Julie Cohen, Rogier Creemers, Xin Dai, Hualing Fu, Tom Ginsburg, Jamie Horsley, Nicholas Howson, Wei Jia, Thomas Kellogg, Margaret Lewis, Benjamin Liebman, Daniel Rauch, Shen Kui, Yueduan Wang, Changhao Wei, Katherine Wilhelm, Angela Zhang, Jeffery Zhang, Taisu Zhang, as well as commenters at George Washington University’s Northeast Corridor Chinese Law Workshop, Oxford University’s Programme in Asian Laws Series, and Georgetown University Law Center’s Summer Faculty Workshop, Technology Law and Policy Colloquium, and S.J.D. and Fellows Seminar. Thanks finally to the insightful editors at the University of Chicago Law Review , especially Max Rowe, Jonathan Jiang, and Andy Wang.

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy.

Deepest gratitude to Greg Ablavsky, Catherine Bell, Eric Berger, June Carbone, Vanessa Casado Pérez, Madeleine Fairbairn, Nicole Graham, Jason Larson, Alex Klass, John Lovett, Sarah Mills, Emily Prifogle, Ezra Rosser, Michele Statz, Anthony Schutz, James Tierney, Ann Tweedy, Levi van Sant, Estair van Wagner, and participants at faculty colloquia hosted by the University of Minnesota Law School, Washington University School of Law, and Wake Forest University School of Law. I am also grateful for feedback received at meetings of the Rural Sociology Society, the Association of American Geographers, Law & Society, the Association of Law, Property, & Society, William & Mary Law School’s Brigham-Kanner Property Conference, and the Rural Reconciliation Project’s Land and Water Workshop. The Carnegie Corporation of New York provided essential financial support; all opinions and mistakes are my own.

This Article analyzes the complex relationship between property and placemaking. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a more comprehensive placemaking account—with examples from Indigenous pipeline protestors to the absent and now-urban heirs of family farms and the emergence of new build-to-rent suburban housing divisions—this Article introduces a new taxonomy for evaluating the relative protection we afford to various place and place-attachment claims. This new framework separates the individual, collective, and ecological benefits of positive place relations from the risks of either overprotected place attachments (as in the case of hereditary land dynasties and exclusionary wealth) or land ownership without any attachment at all (as in the transformation of land and housing into asset classes for commodification and financialized capture). This clearer focus on placemaking also puts property law—and land tenure—at the center of core social, economic, and climate challenges. It also forces us to confront property’s ongoing role in the dispossession of groups, cultures, and communities that are not (or are no longer) recognized as legal owners and our repeated failure to accommodate the access needs of individuals not born into hereditary land or wealth.

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms , Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.” She asserts that this time should be the subject of greater consideration because this “period . . . witnessed a transformation in American constitutional law and politics.” Contrary to “the conventional story,” it was a “foundational era of both constitutional crisis and self-conscious creativity.”

The Interbellum Constitution reminds us of the important insights that have helped transform the historiography of the early American Republic, of slavery, and of relations between European settlers and Indigenous Peoples. Historians and other scholars during the latter half of the twentieth century discovered the importance of moving beyond “great man” history to tell a richer and more truthful story about the past. The story LaCroix tells is not entirely unknown, but her signal contribution is to look beyond the “great man,” “great case” perspective on the years after the War of 1812 and before the Civil War. By mining the archive for information, she expands our understanding of the range of ideas about union, federalism, and sovereignty.

Latest Online Posts

He thanks the University of Chicago Law Review Online team for their careful feedback.

The legibility of handwriting is on the decline. Thankfully, calligraphy carries low stakes in a digital age. Why write something down when it can be typed instead? Yet, there is still one near-universal fragment of writing that must often be done by hand: the signature. While usually a formality, so long as signatures are done by hand, they can be second-guessed, threatening a generation untrained in cursive. This Essay highlights a recent incident in which a union representation election hinged on the legibility of one employee’s signature.

He thanks the University of Chicago Law Review Online team .

Is it OK for courts to think about race when they decide whether to bar certain arguments from being made, because they think those arguments could rely on stereotypes or otherwise play on the jury’s racial biases? For the Washington Supreme Court, the answer is yes—in fact, courts have a duty to consider race in making these evidentiary decisions. Rather than statements or arguments that are made with a clearly racist intent, the Washington Supreme Court’s idea of “racially biased arguments” is far more capacious: it includes “dog whistles,” or superficially harmless comments that have the effect of operating on a jury’s implicit biases.

Many thanks to Tara Leigh Grove, Eric Fish, and Logan Everett Sawyer for helpful feedback on this project. Maya Lorey, Alexandra Webb, and Erin Yonchak of the University of Chicago Law Review Online provided excellent editorial suggestions and assistance.

Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.

Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.

Recent publications

• Volume 91.3 May 2024
• Volume 91.2 March 2024
• Volume 91.1 January 2024
• Volume 90.8 December 2023
• Volume 90.7 November 2023
• Volume 90.6 October 2023
• Volume 90.5 September 2023
• Volume 90.4 June 2023
• Volume 90.3 May 2023
• Volume 90.2 March 2023
• Volume 90.1 January 2023
• Volume 89.8 December 2022
• Volume 89.7 November 2022
• Volume 89.6 October 2022
• Volume 89.5 September 2022
• Volume 89.4 June 2022
• Volume 89.3 May 2022
• Volume 89.2 March 2022
• Volume 89.1 January 2022
• 84 Special November 2017
• Online 83 Presidential Politics and the 113th Justice
• Online 82 Grassroots Innovation & Regulatory Adaptation
• 83.4 Fall 2016
• 83.3 Summer 2016
• 83.2 Spring 2016
• 83.1 Winter 2016
• 82.4 Fall 2015
• 82.3 Summer 2015
• 82.2 Spring 2015
• 82.1 Winter 2015
• 81.4 Fall 2014
• 81.3 Summer 2014
• 81.2 Spring 2014
• 81.1 Winter 2014

Ghostwriting Federalism

Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated…

Resisting Mass Immigrant Prosecutions

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective lega…

Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power

What is the source of jurisdictional power, or the power to say what the law is and give it force in a territory? This Article examines how this fundamental attribute of sovereignty historically arose, in America, from property and property institutions, especially the local, mundane, overlooked and…

The Unabridged Fifteenth Amendment

The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providin…

Deplatforming

This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American …

In Loco Reipublicae

This Article proposes a new framework for children in constitutional law that recognizes children’s rights as developing citizens and parents’ duties to safeguard those rights. An examination of children’s First Amendment right to access ideas illustrates parents’ duty to ensure children are exposed…

Deciphering the Commander-in-Chief Clause

At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping au…

Originalism-by-Analogy and Second Amendment Adjudication

In  New York State Rifle & Pistol Ass ’ n v. Bruen , the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but  Bruen ’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictabi…

Separation-of-Powers Avoidance

Federal judges are not mere arbiters of the separation of powers. Whenever they adjudicate cases, judicial power is implicated. This Article documents how this phenomenon impacts doctrine concerning the structural constitution and contends that we ought to be wary when this doctrine travels outside …

Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony

This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial manag…

The Modern State and the Rise of the Business Corporation

This Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. Corporate technologies require the support of a powerful state with the geographical reach, administrative power, and legal capacity necessary to enforce the law uniformly among …

The Weaponization of Attorney’s Fees in an Age of Constitutional Warfare

States are using the threat of catastrophic, one-sided fee awards to evade judicial review in controversial areas like abortion and gun control. Litigants challenging such laws—and their attorneys—face liability for the opposing party’s legal fees, while the state and its ideological allies bear no …

The Accountable Bureaucrat

An elected leader’s control may seem essential to bureaucratic accountability. But the administrative state itself better secures accountability’s core values. As this empirical study shows, complementarity between civil servants and political appointees; officials’ scrutiny of each other’s work; an…

Family Law for the One-Hundred-Year Life

Family law is failing older adults, offering neither the family forms older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. This Article responds to these challenges by proposing family law reform …

Equity’s Constitutional Source

This Article uncovers the federal equity power’s constitutional source. It argues that, as originally understood, Article III vests the federal courts with inherent power to grant equitable remedies and to adapt the federal system of equity in ways beyond what the Supreme Court’s current cramped, st…

Coordinated Rulemaking and Cooperative Federalism’s Administrative Law

Distilling patterns across cooperative federalism programs, this Article uncovers the distinctive cross-governmental administrative law—and the unusual rulemaking it facilitates—in our most consequential federal-state collaborations.

The Fourth Amendment and General Law

This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s…

The Antibody Patent Paradox

Shifts in patent law’s enablement and written description requirements make it impractical for patentees of antibody technologies to disclose and claim their inventions. We describe this as a doctrinal paradox and offer a solution that gives patentees the power to claim antibodies without giving the…

General Citizenship Rights

This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older c…

The Perils and Promise of Public Nuisance

Public nuisance is a puzzle: both a medieval action and a contemporary force in large-scale opioid settlements, it has provoked historical, formalist, and institutional objections. Close examination reveals, however, that public nuisance adheres to the common law’s accepted bounds and can play an im…

Interconstitutionalism

Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of consti…

Barbarians Inside the Gates: Raiders, Activists, and the Risk of Mistargeting

This Article argues that the conventional wisdom about corporate raiders and activist hedge funds—lambasting raiders and praising activists—is wrong. The authors explain how activists are more likely than raiders to engage in  mistargeting , implying they are also more likely to destroy value and, ult…

The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State

Scholars have long debated whether the administrative state is a democratic institution. This Article offers a new framework for analyzing this question—one drawn from agonistic democratic theory. It argues that agonism provides new grounding for the legitimacy of administrative agencies while also …

Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly

This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to c…

Navassa: Property, Sovereignty, and the Law of the Territories

The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.

The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories

This Article calls on the Supreme Court to overrule—rather than repurpose—the Insular Cases , and it points to constitutional doctrines beyond their reach that can preserve cultural practices without spawning a crisis of political illegitimacy in the unincorporated territories.

Aurelius ’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories”

The Article questions the wisdom of urging judicial overthrow of the Insular Cases without a rubric for the many doctrinal universes that might emerge from such an intervention. Ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-de…

Indigenous Subjects

Centering on the wide-ranging implications of the Supreme Court’s decision in  Rice v. Cayetano , this Article argues that the Court’s race jurisprudence threatens Indigenous self-determination and land rights in the territories. It concludes by offering several strategies that litigants can use to pr…

The Separation-of-Powers Counterrevolution

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in…

Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs

Benefit programs for families rely on rules to determine which individuals can claim which children. These rules shape who qualifies for a program and who does not. This Article critically assesses the design of child-claiming rules, using as case studies the Child Tax Credit and the Earned Income T…

Free-World Law Behind Bars

In the “free world,” we look to regulatory rather than constitutional law to keep us healthy, safe, and connected. But inside prison walls, regulatory law recedes. This Article considers its failure to protect prisoners; its substantive, procedural, and normative advantages over constitutional law; …

The Antitrust Duty to Deal in the Age of Big Tech

Tech platforms are often accused of refusing to deal with their competitors. But courts have largely killed off antitrust liability for such behavior, citing concerns that it would chill investment in new technologies. This Article argues that antitrust can protect investment without needlessly stif…

The History Wars and Property Law: Conquest and Slavery as Foundational to the Field

The version of American history we adopt matters for our understanding of law. In property law, we overlook how the land system underpinning the American real estate market developed, and how that market grew through racial inequality, if we do not examine conquest and slavery as foundational to the…

Bankruptcy Grifters

Bankruptcy grifters infiltrate the Chapter 11 process, seeking bankruptcy’s benefits for mass-tort defendants without incurring many of its costs. This Article concludes that bankruptcy should not be a procedural panacea for companies facing litigation exposure, and offers a number of potential solu…

The Corporate Governance Gap

This Article offers an empirical account of the differences in governance practices between large- and small-cap companies, resulting in what this Article terms the “Corporate Governance Gap.” Recognizing a disparity in the operation of driving forces that promote governance practices, the Article p…

The Emergence of Neutrality

This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jur…

Disparate Limbo: How Administrative Law Erased Antidiscrimination

Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative…

Rethinking Police Expertise

Judicial reasoning about police expertise has toggled between two distinct conceptions of expertise itself: as a professional virtue or a professional technology . Taking stock of both views offers new strategies in a range of disputes about police misconduct. It also illuminates debates about expert…

Unpacking Third-Party Standing

This Article “unpacks” the doctrine of third-party standing. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interests” concept. Second, it distinguishes among three types of parties invoking third-party sta…

Subordination and Separation of Powers

Liberty, accountability, and other values advanced by separation-of-powers tools such as the “power of the purse” come with real-world costs targeted at marginalized groups. Scholars and courts should account for such skewed impacts by including antisubordination among the values they consider in an…

Antitrust and Platform Monopoly

Large digital platforms often are not winner-take-all markets. As a result, antitrust has a role but breakup is rarely the right solution. Better options include incentivizing competition within the platform or forcing interoperability or information sharing. Current merger policy, however, is poorl…

The Constitutional Right of Self-Government

The Assembly Clause today serves little purpose. But long before the First Amendment ’ s drafting, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This Article argues that this right can be interpreted as a right to meaningfully partic…

A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indic…

Equity as Meta-Law

This Article interprets equity as law about law, or meta-law. Equity specializes in solving complex and uncertain problems, especially those involving multiple parties, conflicting rights, and opportunism. The Article reconstructs this function, diagnoses the ills of current equity, and charts a pat…

Police Reform Through a Power Lens

This Article examines recent social movements efforts to shift power over policing to those most harmed by mass criminalization. This focus on power-shifting—the power lens—opens up reform discussions to first-order questions about how the state should provide safety and security, with or without po…

The Race-Blind Future of Voting Rights

The world of voting rights could soon be turned upside down. A conservative Supreme Court might insist that minority voters' existing representation be compared to the representation they would receive if the redistricting process were race blind. This Article is the first to explore the potential c…

Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality

This Article proposes an innovative approach to addressing political inequality: using law to facilitate organizing by the poor and working class – as workers, tenants, debtors, and welfare beneficiaries. The Article offers a new direction for the literature on political inequality and critical less…

Retroactive Adjudication

This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead t…

Distorted Choice in Corporate Bankruptcy

Two new strategies—restructuring support agreements and deathtrap provisions—distort the voting process in nearly every big Chapter 11 case.  Although they could be banned, this Article, the first comprehensive assessment, calls for a more nuanced approach, outlining four rules of thumb for determin…

Expounding the Constitution

This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary …

The First Amendment and the Right(s) of Publicity

First Amendment analysis in right of publicity cases is notoriously troublesome. To remedy this nettlesome conflict, this Article disaggregates the distinct interests that support publicity laws, and then analyzes how these intersect with First Amendment values. By doing so it offers a navigational …

Commonsense Consent

How do ordinary people understand the concept of consent? This Article documents that laypersons, unlike most legal theorists, believe consent is compatible with fraud. It uses this discovery to revisit the so-called “riddle of rape-by-deception” and to interrogate the relationship between public at…

Federalism by Contract

Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, our domestic governments use written instruments to formally coordinate their activities. This Article analyzes these distinctive contract-like instruments in which both …

Law Within Congress

What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.

Competition Wrongs

Drawing on various forms of business law, this Article argues that misconduct in the marketplace can wrong other market actors even though those actors did not have a right against the misconduct. This argument challenges traditional philosophical and legal assumptions about rights and accountabilit…

Respect, Individualism, and Colorblindness

The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalen…

The Wandering Officer

This Article conducts a systematic investigation of “wandering officers”—law-enforcement officers fired by one department who find work at another agency. It reports on the prevalence, labor mobility, and behavior of these officers. The Article also considers explanations for their continued employm…

Probable Cause Pluralism

According to the Supreme Court, the most important phrase in the Fourth Amendment,  “ probable cause, ”   is not possible  to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement ,  while avo…

The Strategies of Anticompetitive Common Ownership

This Article examines the mechanisms through which anticompetitive effects may arise when institutional investors hold stakes in competing firms. Most mechanisms, including cartel facilitation and passive failures to encourage competition, either lack empirical evidence or else are contrary to the i…

Plessy Preserved: Agencies and the Effective Constitution

Federal officials enforced a “separate but equal” framework for public housing long after  Brown invalidated that principle.   This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that…

The New National Security Challenge to the Economic Order

Changes in national security policy pose a fundamental challenge to international economic law. Security policies worldwide encompass many emerging threats, from cyber vulnerabilities to climate change. This expansion potentially undermines the ability of investment and trade treaties to discipline …

Secret Reason-Giving

The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and polic…

Paid on Both Sides: Quid Pro Quo Exchange and the Doctrine of Consideration

The doctrine of consideration in contract is home to the law’s only substantial account of quid pro quo exchange—one that withers under philosophical scrutiny. By fleshing out the idea that exchange involves reciprocal payments, this Article offers both an original theory of exchange and a reconcept…

Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.  

The Statutory Separation of Powers

Separation of powers operates as an underappreciated structural principle in subconstitutional domains. Using the relationship between federal energy agencies as its primary case study, this Article argues that Congress creates statutory schemes of separation, checks, and balances in its delegations…

The Lessons of Lone Pine

Lone Pine orders have become a prominent fixture of the mass-tort landscape. So far, the orders have been mostly heralded as an inventive way to streamline the resolution of complex cases. Complicating that consensus, this Article analyzes drawbacks associated with this potent device and advocates r…

Sex in Public

This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to sig…

The Claims of Official Reason: Administrative Guidance on Social Inclusion

Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…

Bias In, Bias Out

The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment …

Empire States: The Coming of Dual Federalism

In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quas…

Sexual Privacy

New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy …

Pleading Poverty in Federal Court

Approximately forty million Americans live in poverty. Yet we know little about how they encounter the federal civil justice system. This Article provides the first survey of the in forma pauperis pleading standards of all ninety-four federal district courts. It reveals an inefficient and arbitrary …

Disparate Impact, Unified Law

Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems…

Regulatory Bundling

Administrative agencies can aggregate or disaggregate provisions during a single legislative rulemaking. Such regulatory bundling has been especially prevalent over the last two decades, with agencies including increasingly more subjects in their final rules. This Article explores this phenomenon, t…

The Forgotten History of Metes and Bounds

Property scholarship has long derided metes and bounds systems of land demarcation, largely accepting that standardized boundaries best facilitate economic growth. Through a case study of colonial New Haven, Connecticut, this Article suggests that metes and bounds descriptions actually provided earl…

Innovation Policy Pluralism

Intellectual property is not a monolith. It rewards innovators with temporary exclusive rights to their creations, and it conditions consumers’ access to such goods through proprietary pricing. Using this insight, this Article develops a more accurate framework for analyzing the innovation policy la…

An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing polit…

What Should We Do After Work? Automation and Employment Law

The existing fortress of employment-based rights and benefits is falling apart. The dominant legal responses to fissuring fail to meet, and even exacerbate, the challenge of contemporary automation. The way forward, this Article contends, must begin by separating what workers’ entitlements should be…

Litigating Data Sovereignty

Internet disputes increasingly occur across borders. The key question, this Article contends, is not whether states can exert control over data, but rather the shape their exercises of sovereign power will take. Given this reality, application of sovereign-deference doctrines represents the best hop…

The New Class Blindness

An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present…

Transparency’s Ideological Drift

From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transforma…

First-Person FOIA

This Article reveals that Freedom of Information Act requests at seven federal agencies are dominated by individuals seeking records about themselves, including immigration, investigation, and medical records. Yet FOIA is ill-suited to meet the vital needs of first-person requesters, and these reque…

The Obsolescence of Advertising in the Information Age

Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should …

International Lobbying Law

Consultation rules allow nonstate actors to gain special access to international institutions. While consultation once was understood as a means of  democratizing international institutions, to day, many consultants are industry and trade associations.  This Article reframes these rules as a body of lo…

The New Law of the Child

This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The authors show how the existing legal regime focuses narrowly on state and parental control over children, and they propose a new framework that promotes a broader range of children’s …

Petitioning and the Making of the Administrative State

This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrat…

The Jurisprudence of Mixed Motives

How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in co…

The De Facto Reporter’s Privilege

There is no formal, federal reporter’s privilege against disclosing confidential information. Drawing on new historical sources, this Article shows how all three branches of government have deployed a variety of de facto protections for reporters. These conclusions enrich our understanding of whethe…

Judging Ordinary Meaning

When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. This Article proposes to import those methods into statut…

Dangerous Defendants

Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equall…

Government Hacking

The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have …

Natural Rights and the First Amendment

This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern do…

Stuck! The Law and Economics of Residential Stagnation

America has become a nation of homebodies. This Article advances two central claims. First, declining interstate mobility rates create problems for federal macroeconomic policymaking. Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of leg…

How Qualified Immunity Fails

This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases.

The Nature of Parenthood

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary…

Machine Testimony

Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information—the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects…

Inside the Agency Class Action

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a re…

Why Have We Criminalized Aggressive War?

On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether …

Tort Law Inside Out

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body …

The Origins of Judicial Deference to Executive Interpretation

Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doc…

Localist Administrative Law

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrativ…

The Perils of Experimentation

More than eighty years after Justice Brandeis coined the phrase “laboratories of democracy,” the concept of policy experimentation retains its currency as a leading justification for decentralized governance. This Article examines the downsides of experimentation, and in pa…

Shareholder Proposal Settlements and the Private Ordering of Public Elections

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, s…

The Cycles of Separation-of-Powers Jurisprudence

abstract.The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seem…

The New Labor Law

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining am…

Probate Lending

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibitio…

The President’s Budget as a Source of Agency Policy Control

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely…

Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality

The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however…

Administrative Forbearance

This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Artic…

Governance Reform and the Judicial Role in Municipal Bankruptcy

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and limitations of using the Bankruptcy Code to adjust municipal debt. In this Article, we contend that, to resolve fully the distress of a substantial city, mun…

Professional Speech

Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive a…

The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Rec…

The First Patent Litigation Explosion

The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of toda…

Corporate Control and Idiosyncratic Vision

This Article offers a novel theory of corporate control. It does so by shedding new light on corporate-ownership structures and challenging the prevailing model of controlling shareholders as essentially opportunistic actors who seek to reap private benefits at the expense of minor…

The Un-Territoriality of Data

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorit…

Political Entrenchment and Public Law

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and sch…

Against Immutability

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but…

The President and Immigration Law Redux

In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and en…

The New Corporate Web: Tailored Entity Partitions and Creditors’ Selective Enforcement

Firms have developed sophisticated legal mechanisms that partition assets across some dimensions but not others. The result is a complex web of interconnected affiliates. For example, an asset placed in one legal entity may serve as collateral guaranteeing the debts of anot…

Defining and Punishing Offenses Under Treaties

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particu…

Administrative Severability Clauses

Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules becaus…

The Constitutional Duty To Supervise

The IRS targets Tea Party organizations’ applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsi…

Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment

The built environment is characterized by man-made physical features that make it difficult for certain individuals—often poor people and people of color—to access certain places. Bridges were designed to be so low that buses could not pass under …

Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction

Students of Article III have so far failed to resolve a fundamental tension in the theory of federal adjudication. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom seeks redress for an …

Beyond Diversification: The Pervasive Problem of Excessive Fees and "Dominated Funds" in 401(k) Plans

Notwithstanding ERISA’s fiduciary requirements, a significant portion of 401(k) plans establish investment menus that predictably lead investors to hold high-cost portfolios. Using data from more than 3,500 401(k) plans with more than $120 billion i…

The Uneasy Case for Favoring Long-Term Shareholders

This Article challenges a persistent and pervasive view in corporate law and corporate governance: that a firm’s managers should favor long-term shareholders over short-term shareholders, and maximize long-term shareholders’ returns rather than th…

Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law

The historian Raul Hilberg once observed that we would all be happier if we believed the perpetrators of the Holocaust were crazy. But mass atrocity is never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the madman or the devi…

Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications

Some members of Congress, the D.C. Circuit, and the legal academy are promoting a particular, abstract form of cost-benefit analysis for financial regulation: judicially enforced quantification. How would CBA work in practice, if applied to specific,…

Beyond the Indian Commerce Clause

This Article uses unexamined historical sources to argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. T his history provides a more solid foundation for doctrinal principles derided as incoherent, and suggests more cabi…

Rules Against Rulification

The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a r…

The Limits of Enumeration

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article a…

Agency Enforcement of Spending Clause Statutes: A Defense of the Funding Cut-Off

This Article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agen…

Criminal Attempts

The intuitive idea that failed attempts to complete crimes are often themselves crimes belies the complexity and confusion surrounding the adjudication of criminal attempts. This Article offers an account of the grounds for the criminalization of att…

Self-Help and the Separation of Powers

Self-help doctrines pervade the law. They regulate a legal subject’s attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call count…

Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation

Tracing the racially nativist origins of modern gender-based derivative citizenship law

Legitimacy and Federal Criminal Enforcement Power

The sources of forum disparities in criminal justice reconsidered

The Power to Threaten War

Reframing the war powers debate

The New Minimal Cities

Between 2007 and 2013, twenty-eight urban municipalities declared bankruptcy or entered a state receivership to manage fiscal insolvency. To cut costs and divert revenues to debt payments, these cities have taken dramatic austerity measures—an unwitting experiment wit…

The Separation of Funds and Managers: A Theory of Investment Fund Structure and Regulation

abstract.This Article offers a broad theory of what distinguishes investment funds from ordinary companies, with ramifications for how these funds are understood and regulated. The central claim is that investment funds (i.e., mutual funds, hedge funds, private equity funds, and their …

Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950

A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The result…

The Interpretation-Construction Distinction in Patent Law

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to develop…

The Evolution of Shareholder Voting Rights: Separation of Ownership and Consumption

The nineteenth century saw the standardization and rapid spread of the modern business corporation around the world. Yet those early corporations differed from their contemporary counterparts in important ways. Most obviously, they commonly deviated from the one-share-one…

Ice Cube Bonds: Allocating the Price of Process in Chapter 11 Bankruptcy

In Chrysler’s Chapter 11 bankruptcy, a finding that the debtor was losing $100 million per day justified the hurry-up sale of the company to Fiat. The assertion that a firm is a melting ice cube is frequently offered, soon after a bankruptcy filing, to justify a qui…

Agencies as Litigation Gatekeepers

A central challenge in the modern regulatory state is rationalizing and coordinating multiple, overlapping, and interdependent public and private enforcement mechanisms. To that end, recent years have seen mounting calls to vest administrative agencies with litigation …

Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker

Firearm localism.

This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation. Doing so would protect rural gun culture while permitting cities to address urban gun violence.

City Unplanning

122 Yale L.J. 1670 (2013). Generations of scholarship on the political economy of land use have tried to explain a world in which tony suburbs use zoning to keep out development but big cities allow untrammeled growth because of the political influence of developers. But as demand to live in them has…

Rethinking the Federal Eminent Domain Power

122 Yale L.J. 1738 (2013). It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was t…

The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

122 Yale L.J. 1372 (2013). “Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in vir…

Commandeering and Constitutional Change

122 Yale L.J. 1104 (2013). Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of hi…

Parallel Exclusion

122 Yale L.J. 1182 (2013). Scholars and courts have long debated whether and when “parallel pricing”—adoption of the same price by every firm in a market—should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of “parallel exclusion”—conduct, enga…

Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second

122 Yale L.J. 852 (2013). In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts hav…

Fudging the Nudge: Information Disclosure and Restaurant Grading

122 Yale L.J. 574 (2012). One of the most promising regulatory currents consists of “targeted” disclosure: mandating simplified information disclosure at the time of decisionmaking to “nudge” parties along. Its poster child is restaurant sanitation grading. In principle, a simple posted letter grade …

The Disappearance of Civil Trial in the United States

122 Yale L.J. 522 (2012). Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so ra…

Welfare and Rights Before the Movement: Rights as a Language of the State

122 Yale L.J. 314 (2012).

In conversations about government assistance, rights language often emerges as a danger: when benefits become “rights,” policymakers lose flexibility, taxpayers suffer, and the poor lose their incentive to work. Absent from the discussion is an understanding of how, when, …

Aggregation and Law

122 Yale L.J. 2 (2012). If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent …

A Decision Theory of Statutory Interpretation: Legislative History by the Rules

122 Yale L.J. 70 (2012).

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article ar…

Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?

121 Yale L.J. 2118 (2012) .

We report the results of the first of a series of randomized evaluations of legal assistance programs. This series of evaluations is designed to measure the effect of both an offer of and the actual use of representation, although it was not possible in the first study …

Regulating Opt-Out: An Economic Theory of Altering Rules

121 Yale L.J. 2032 (2012) . Whenever a rule is contractible, the law must establish separate rules governing how private parties can contract around the default legal treatment. To date, contract theorists have not developed satisfying theories for how to set “altering rules,” the rules that establish…

Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments

121 Yale L.J. 1584 (2012) . The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statu…

Rights and Votes

121 Yale L.J. 1286. This Article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). …

Dissolving Cities

121 Yale L.J. 1364.

During the twentieth century, thousands of new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable numb…

What Is Tax Discrimination?

121 Yale L.J. 1014 (2012) . Prohibitions of tax discrimination have long appeared in constitutions, tax treaties, trade treaties, and other sources, but despite their ubiquity, little agreement exists as to how such provisions should be interpreted. Some commentators have concluded that tax discrimina…

Burden of Proof

121 Yale L.J. 738 (2012).

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. I…

Patent Inflation

121 Yale L.J. 470 (2011) . For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular fail…

Outcasting: Enforcement in Domestic and International Law

121 Yale L.J. 252 (2011). This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such …

Prods and Pleas: Limited Government in an Era of Unlimited Harm

121 Yale L.J. 350 (2011).

Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertai…

Misalignments in Tort Law

121 Yale L.J. 82 (2011). In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damages. I call this the “alignment principle.” One objective of this Article is to expose exceptions to the alignment p…

The Architecture of Jurisprudence

121 Yale L.J. 2 (2011). Contemporary jurisprudence has been dominated by an unhelpful interest in taxonomy. A conventional wisdom has grown up around these projects. This Article, the first in a three-part series, identifies two dominant claims of this conventional wisdom in jurisprudence—one substantiv…

Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine

120  Yale L.J.  1898 (2011). 

Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though s…

120 Yale L.J. 1898 (2011). 

The Inducement Standard of Patentability

120 Yale L.J. 1590 (2011). 

In Graham v. John Deere Co. , the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents to only “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that th…

Taxation and Liquidity

120 Yale L.J. 1682 (2011). 

One of the principal determinants of an asset’s return is its liquidity—the ease with which the asset can be bought and sold. Liquid assets yield a lower return than do otherwise comparable illiquid assets. This Article demonstrates that an income tax alters the tradeoff…

From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases

120 Yale L.J. 1278 (2011). 

For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned wi…

Associational Speech

120 Yale L.J. 978 (2011). 

This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a sub…

Allocating Power Within Agencies

120 Yale L.J. 1032 (2011). 

Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental …

Remedies On and Off Contract

120 Yale L.J. 690 (2011). 

Liberal allowance of rescission followed by restitution has, for centuries, unsettled legal authorities who fear it as a threat to commercial order or other normative values. Responding to these fears, authorities have limited the ease with which rescission may be elected…

Discrimination by Comparison

120 Yale L.J. 728 (2011). 

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic fo…

The One and Only Substantive Due Process Clause

120 Yale L.J. 408 (2010). 

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to prote…

Withdrawing from International Custom

120 Yale L.J. 202 (2010). 

Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to…

Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut

120 Yale L.J. 276 (2010). 

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exemp…

Patent Law and the Two Cultures

120 Yale L.J. 2 (2010). 

A half-century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, …

Taking Exit Rights Seriously: Why Governance and Fee Litigation Don’t Work in Mutual Funds

120 Yale L.J. 84 (2010). 

Unlike shareholders of ordinary companies, mutual fund shareholders do not sell their shares—they redeem them from the issuing funds for cash. We argue that this unique form of exit almost completely eliminates mutual fund investors’ incentives to use voting, boards, and f…

The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism

119 Yale L.J. 1750 (2010). 

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of ju…

Federal Administration and Administrative Law in the Gilded Age

119 Yale L.J. 1362 (2010). 

The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding…

Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"

119 Yale L.J. 1474 (2010). 

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough d…

The Politics of Nature: Climate Change, Environmental Law, and Democracy

119 Yale L.J. 1122 (2010). 

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwi…

Strategic Vagueness in Contract Design: The Case of Corporate Acquisitions

119 Yale L.J. 848 (2010). 

The unprecedented and unanticipated economic and financial shocks of the past couple of years have led parties to look for contractual escapes from deals. As the current crisis works its way through our economic system, however, attention will be shifted from the collaps…

Antibankruptcy

119 Yale L.J. 648 (2010). 

In large Chapter 11 cases, the prototypical creditor is no longer a small player holding a claim much like everyone else’s, but rather a distressed debt professional advancing her own agenda. Secured creditors are more pervasive and enjoy much more control than they had e…

Fourth Amendment Seizures of Computer Data

119 Yale L.J. 700 (2010). 

What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the …

Property as Process: How Innovation Markets Select Innovation Regimes

119 Yale L.J. 384 (2009). 

It is commonly asserted that innovation markets suffer from excessive intellectual property protections, which in turn stifle output. But empirical inquiries can neither confirm nor deny this assertion. Under the agnostic assumption that we cannot assess directly whether …

The President and Immigration Law

119 Yale L.J. 458 (2009). 

The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has…

Government in Opposition

119 Yale L.J. 548 (2009).

In the past generation, in countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged in greater numbers, what this Article calls “government in opposition.” After democratic elections are …

Presidential Power over International Law: Restoring the Balance

119 Yale L.J. 140 (2009). 

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm tr…

Proposing a Place for Politics in Arbitrary and Capricious Review

119 Yale L.J. 2 (2009). 

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the no…

In Defense of Property

118 Yale L.J. 1022 (2009).

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of i…

Uncooperative Federalism

118 Yale L.J. 1256 (2009). 

This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outsid…

The Classic Rule of Faith and Credit

118 Yale L.J. 1584 (2009).

Since the late nineteenth century, orthodox doctrine under the Constitution’s Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States was essentially…

The Case for Symmetry in Creditors' Rights

118 Yale L.J. 806 (2009).

Using an original framework for evaluating bankruptcy rules, this Article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor’s assets. Such arrangements, which I classify as asymmetr…

Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages

118 Yale L.J. 392 (2008).

In Philip Morris USA v. Williams , the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, …

Learning Through Policy Variation

118 Yale L.J. 480 (2008).

Rationalist analysis of policymaking, exemplified by cost-benefit analysis, ignores the variance in outcomes associated with policies and seeks to maximize expected outcomes. Burkeans, by contrast, view policy outcome uncertainty negatively. The Burkean approach is echo…

Suspension as an Emergency Power

118 Yale L.J. 600 (2009).

As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand …

The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright

118 Yale L.J. 186 (2008).

The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo…

The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs

118 Yale L.J. 2 (2008).

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balan…

Normative Canons in the Review of Administrative Policymaking

118 Yale L.J. 64 (2008).

Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress—norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separa…

Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861

117 Yale L.J. 1568 (2008).

Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political refor…

Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

117 Yale L.J. 1236 (2008).

Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative…

Just Semantics: The Lost Readings of the Americans with Disabilities Act

117 Yale L.J. 992 (2008).

Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the…

Race and Democratic Contestation

117 Yale L.J. 734 (2008).

As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that…

The Access to Knowledge Mobilization and the New Politics of Intellectual Property

117 Yale L.J. 804 (2008).

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have…

Antislavery Courts and the Dawn of International Human Rights Law

117 Yale L.J. 550 (2008).

Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts …

Consumerism Versus Producerism: A Study in Comparative Law

117 Yale L.J. 340 (2007).

The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) …

The Constitution Outside the Constitution

117 Yale L.J. 408 (2007).

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitu…

The Promise and Pitfalls of the New Voting Rights Act

117 Yale L.J. 174 (2007).

In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glos…

Contracting for Cooperation in Recovery

117 Yale L.J. 2 (2007).

There is a longstanding debate about whether courts should enforce contract terms purporting to limit the parties’ liability for fraud. It is less-often noticed that many contracts are designed to incorporate fraud liability by requiring one party to make representations abo…

Intellectual Property as Property: Delineating Entitlements in Information

This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms o…

Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…

Property and Half-Torts

116 Yale L.J. 1400 (2007)

The idea that a tort can be split analytically into two parts—risk and harm—underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed’s famous entitlement framework. Thus, in discussing an “ent…

Risk Aversion and Rights Accretion in Intellectual Property Law

116 Yale L.J. 882 (2007)

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence ( vel non )…

The Constitutional Foundations of Chenery

116 Yale L.J. 952 (2007)

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review…

Chevron as a Voting Rule

116 Yale L.J. 676 (2007) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…

The Corporate Origins of Judicial Review

116 Yale L.J. 502 (2006) This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continu…

Unpacking the Household: Informal Property Rights Around the Hearth

As Aristotle recognized in The Politics , the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, h…

Education, Equality, and National Citizenship

116 Yale L.J. 330 (2006) For disadvantaged children in substandard schools, the recent success of educational adequacy lawsuits in state courts is a welcome development. But the potential of this legal strategy to advance a national goal of equal educational opportunity is limited by a sobering and l…

How To Remove a Federal Judge

116 Yale L.J. 72 (2006) Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, a…

Criminal Law Comes Home

116 Yale L.J. 2 (2006) Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misd…

Beyond Lawrence : Metaprivacy and Punishment

115 Yale L.J. 1862 (2006) Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty –and communitarian–William Eskridge has described it as the ga…

Good Governance at the Supranational Scale: Globalizing Administrative Law

115 Yale L.J. 1490 (2006) This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…

Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…

Recovering American Administrative Law: Federalist Foundations, 1787-1801

115 Yale L.J. 1256 (2006) By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was mi…

Income Tax Discrimination and the Political and Economic Integration of Europe

115 Yale L.J. 1186 (2006) In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions h…

Managing Transitional Moments in Criminal Cases

115 Yale L.J. 922 (2006) As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court de…

Immoral Purposes: Marriage and the Genus of Illicit Sex

115 Yale L.J. 756 (2006) In Lawrence v. Texas , the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence , however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illi…

Anticipating Litigation in Contract Design

115 Yale L.J. 814 (2006) Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design i…

The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs

115 Yale L.J. 524 (2005) In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional d…

Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes

115 Yale L.J. 356 (2005) This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in tru…

Rethinking Civil Rights Lawyering and Politics in the Era Before Brown

115 Yale L.J. 256 (2005) This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education . That traditional narrative has relied on a legal liberal view of civil r…

Fixing Freezeouts

115 Yale L.J. 2 (2005) Freezeout transactions, in which a controlling shareholder buys out the minority shareholders, have occurred more frequently since the stock market downturn of 2000 and the Sarbanes-Oxley Act of 2002. While freezeouts were historically executed as statutory mergers, recent Dela…

The City and the Poet

114 Yale L.J. 1835 (2005) Although it is a contemporary of law and economics, law and literature has never secured widespread uptake in the legal academy. In this Article, Professor Yoshino explains the relative anemia of the discipline and prescribes a cure. Law has an incentive to distance itself f…

The Sarbanes-Oxley Act and the Making of Quack Corporate Governance

114 Yale L.J. 1521 (2005) This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical …

Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?

114 Yale L.J. 929 (2005) The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries.…

On the Alienability of Legal Claims

114 Yale L.J. 697 (2005) Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales …

The Right To Destroy

114 Yale L.J. 781 (2005) Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy,…

The Defined Contribution Paradigm

114 Yale L.J. 451 (2004) Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. This Article suggests that over the last generation something more fundamental, which can justly be called a paradigm shift, has…

The Federalist Dimension of Regulatory Takings Jurisprudence

114 Yale L.J. 203 (2004) Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in backgro…

The Future of Disability Law

114 Yale L.J. 1 (2004) Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appe…

The Eleventh Amendment and the Reading of Precise Constitutional Texts

113 Yale L.J. 1663 (2004) INTRODUCTION In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their …

The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s

113 Yale L.J. 1341 (2004) The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain inte…

Contract and Collaboration

113 Yale L.J. 1417 (2004) Promises and contracts establish relations among the persons who engage them, and these relations lie at the center of persons' moral and legal experience of one another. But the most prominent accounts of these practices nevertheless remain firmly individualistic, seeking …

The Two Western Cultures of Privacy: Dignity Versus Liberty

113 Yale L.J. 1151 (2004) Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and …

The Integration of Tax and Spending Programs

113 Yale L.J. 955 (2004) This Article provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expe…

Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits

113 Yale L.J. 815 (2004) The 1996 welfare law passed amidst promises to reduce welfare rolls without abandoning needy families. A strong economy, state work support programs, and the efforts of millions of low-income parents brought substantial reductions in the ranks of those eligible for cash assis…

Contract Theory and the Limits of Contract Law

113 Yale L.J. 541 (2003) This Article sets out a normative theory to guide decisionmakers in the regulation of contracts between firms. Commercial law for centuries has drawn a distinction between mercantile contracts and others, but modern scholars have not systematically pursued the normative impli…

Punitive Damages as Societal Damages

113 Yale L.J. 347 (2003) Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under cu…

How To Fix Wall Street: A Voucher Financing Proposal for Securities Intermediaries

113 Yale L.J. 269 (2003) Securities market intermediaries reduce the collective action problem facing investors in the capital markets. Analysts provide securities research. Proxy advisory firms assist investors in determining how to vote their shares. Even shareholders bringing proxy contests can be…

An Old Judicial Role for a New Litigation Era

113 Yale L.J. 27 (2003) Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old …

Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

112 Yale L.J. 1943 (2003) The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…

The Sanitized Workplace

112 Yale L.J. 2061 (2003) One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come …

What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

112 Yale L.J. 1943 (2003) When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…

In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State

112 Yale L.J. 1641 (2003) This Article argues that the law has constructed marriage as an institution capable of regulating the rights and responsibilities of even unmarried women. In various ways, the law has constructed the rights of certain groups of unmarried women "in the shadow of marriage": Th…

Conspiracy Theory

112 Yale L.J. 1307 (2003) Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justificatio…

Piercing the Veil

112 Yale L.J. 1399 (2003) Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, cultur…

Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

112 Yale L.J. 1011 (2003) This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the l…

Why Above-Cost Price Cuts To Drive Out Entrants Are Not Predatory--and the Implications for Defining Costs and Market Power

112 Yale L.J. 681 (2003) Recently, European and U.S. officials have made surprising moves toward restricting firms from using above-cost price cuts to drive out entrants. This Article argues that these legal developments likely reflect the fact that scholarly critiques of cost-based tests of predator…

Coase's Penguin, or, Linux and The Nature of the Firm

112 Yale L.J. 369 (2002) For decades our common understanding of the organization of economic production has been that individuals order their productive activities in one of two ways: either as employees in firms, following the directions of managers, or as individuals in markets, following price si…

Are Police Free To Disregard Miranda?

112 Yale L.J. 447 (2002) This Article contends that the common understanding of Miranda as a direct restraint on custodial interrogation by police is mistaken. Instead, Miranda, like the privilege against compulsory self-incrimination that serves as its constitutional foundation, is a rule of admissi…

The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

112 Yale L.J. 153 (2002) How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of The History of the Countermajoritarian Difficulty. The piece explains that the counter…

The Freedom of Imagination: Copyright's Constitutionality

112 Yale L.J. 1 (2002) In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America. Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic fr…

The Political Economy of School Choice

111 Yale L.J. 2043 (2002) This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not sup…

Do Human Rights Treaties Make a Difference?

111 Yale L.J. 1870 (2002) Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in chan- ging changing states' behavior for the better? This Article addresses these questions through a large-scale quan- titative analysis of the relationship be…

The Law and Economics of Reverse Engineering

111 Yale L.J. 1575 (2002) Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such info…

The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt

111 Yale L.J. 1499 (2002) Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--n…

Framing Transactions in Constitutional Law

111 Yale L.J. 1311 (2002) Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the foc…

Waging War, Deciding Guilt: Trying the Military Tribunals

111 Yale L.J. 1259 (2002) In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today…

The Anti-Antidiscrimination Agenda

111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …

Architecture as Crime Control

111 Yale L.J. 1039 (2002) Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cybersp…

111 Yale L.J. 769 (2002) In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory…

111 Yale L.J. 547 (2001) Givings-government acts that enhance property value-are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical…

Corporations and Human Rights: A Theory of Legal Responsibility

111 Yale L.J. 443 (2001) The path of international law over the last century has been one of increasing both the breadth and the depth of its coverage. Its breadth has grown through the addition of new areas for regulation, whether the environment, telecommunications, health, or human rights; and its…

The Executive Power over Foreign Affairs

111 Yale L.J. 231 (2001) This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the United States government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitut…

A Dilution Mechanism for Valuing Corporations in Bankruptcy

111 Yale L.J. 83 (2001) This Article proposes a new mechanism for valuing firms in bankruptcy. Under the "senior dilution" mechanism, a court would dilute the reorganized stock issued to senior claimants by issuing additional shares to junior claimants until there was no excess demand for the stock a…

The Rise of Dispersed Ownership The Roles of Law and the State in the Separation of Ownership and Control

111 Yale L.J. 1 (2001) Deep and liquid securities markets appear to be an exception to a worldwide pattern in which concentrated ownership dominates dispersed ownership. Recent commentary has argued that a dispersed shareholder base is unlikely to develop in civil-law countries and transitional econo…

Currency Policies and Legal Development in Colonial New England

110 Yale L.J. 1303 (2001) This Article presents a new interpretation of the relation of law to economic development in colonial New England. Prior legal historical scholarship has focused almost exclusively on judicial decisionmaking, emphasizing judges' role in adapting the law in some optimal way …

Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

110 Yale L.J. 1097 (2001) Last June, in Apprendi v. New Jersey , the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that…

Federal Regulation of State Court Procedures

110 Yale L.J. 947 (2001) May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitution…

Rethinking the Puzzle of Escalating Penalties for Repeat Offenders

110 Yale L.J. 733 (2001) The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabi…

The Liberal Commons

110 Yale L.J. 549 (2001) Must we choose between the benefits of cooperative use of scarce resources and our liberal commitments to autonomy and exit? No. Well-tailored law can mediate between community and liberty, between commons and private property. Our theory of the liberal commons provides a fra…

The Essential Role of Organizational Law

110 Yale L.J. 387 (2000) In every developed market economy, the law provides for a set of standard-form legal entities. In the United States, these entities include, among others, the business corporation, the cooperative corporation, the nonprofit corporation, the municipal corporation, the limited …

A Liberal Theory of Social Welfare: Fairness, Utility, and the Pareto Principle

110 Yale L.J. 173 (2000) Amartya Sen shows how liberal rights can produce outcomes that everyone would prefer to avoid, thereby violating the Pareto principle. Similarly, Louis Kaplow and Steven Shavell identify potential conflicts between the Pareto principle and notions of "fairness," which give we…

Optimal Standardization in the Law of Property: The Numerus Clausus Principle

110 Yale L.J. 1 (2000) In all postfeudal legal systems, the basic ways of owning property are limited in number and standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invok…

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program, featured content, lock them™ up: holding transnational corporate human-rights abusers accountable, administrative law at a turning point, law and movements: clinical perspectives.

Law Journal Library

The Law Journal Library is HeinOnline's signature collection of more than 3,200 fully searchable, image-based journals, each dating back to the first issue ever published. This scholarly journals database spans more than 45 million pages and 40 disciplines, bridging a crucial research gap.

An Authoritative Scholarly Journals Database

In both the academic and professional realm, scholarly journals are a go-to resource for original research, in-depth analyses, review articles, and book reviews relating to any subject. To provide easy access to these authoritative sources, HeinOnline has compiled more than 3,200 online scholarly journals in a fully searchable image-based database known as the Law Journal Library. Every document in the library is an exact facsimile of its print counterpart, while still providing the ease and speed that accompanies online searching. To improve the discoverability of relevant content, HeinOnline has incorporated unique artificial intelligence tools and research aids into the database interface. 

Though initially named the “Law” Journal Library, this resource has grown from a small collection of law reviews to a multidisciplinary journals database spanning more than 45 million pages. Its coverage is comprehensive, beginning with the first issue ever published, and includes works from 60 different countries, as well as all 50 states and the District of Columbia. The 3,200 journals in the library span more than 40 broad disciplines, including:

• Political Science
• Criminal Justice
• Public Health
• Immigration Studies
• Foreign Relations
• Women's Studies
• Immigration
• Animal Studies

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Artificial Intelligence Tools

HeinOnline hopes to streamline the research experience by incorporating natural language processing and machine learning tools throughout its scholarly journals database. These tools, powered by artificial intelligence, vastly improve the discoverability of relevant content contained throughout the Law Journal Library. 

More Like This

Found the perfect article? Extract "interesting words" from the piece to generate a list of similar works.

Keyword Search Builder

Is your go-to search just not working? Adjust the weight of your keywords to better refine your results.

Subject and Entity Extraction

Researching a certain subject or entity? Browse articles by subject, location, person, organization, and more.

ScholarCheck: Analyzing the Impact of Online Scholarly Journals

When using scholarly journals and other secondary sources for research, it’s essential to know exactly how authoritative the source is in the content of your field. To assist researchers with this task in its own scholarly journals database, HeinOnline has created ScholarCheck.  This series of tools and features determines which articles have had a heavy influence on the subject in question. Learn more . 

Citation and Access Analysis

ScholarCheck analyzes every article's citations to determine the most-cited journals, articles, and authors. In addition, it allows users to see view and access articles cited by other articles.

Inline Hyperlinking

ScholarCheck provides inline hyperlinking to cited material both in and out of the journals database so users can quickly access relevant content.

Author Rankings

Furthermore, ScholarCheck's citation metrics have led HeinOnline to create ScholarRank , an overall ranking of authors throughout the scholarly journals database. Learn more . 

MyHein: A Power Researcher's Best Friend

MyHein , HeinOnline’s personal research tool, enables anyone with HeinOnline access to bookmark documents, save search queries, and set up electronic table of contents (eTOC) alerts. Set up a MyHein account from anywhere in HeinOnline and use it to streamline research throughout HeinOnline’s 3,200 online scholarly journals. 

Create and Export Bookmarks

Bookmark an article from within search results or from inside a document. Select multiple results to save them all at once. Organize bookmarks by adding tags.

Other Tools and Features

Citation tools.

Locate scholarly journals in seconds with our Citation Search bar . Within a document, find that work's citation in a variety of formats, including MLA , APA , Chicago , Bluebook , OSCOLA , and McGill Guide . Export those citations to Refworks, to Endnote, or as a text file. Learn more. 

Author Profile Pages

Every author featured in our scholarly journals database has an author profile page, making it easy for authors to showcase their work and for researchers to learn about the qualifications, interests, and writings of any author they enjoy. Learn more. 

Venn Diagram Search

Both novice and experienced researchers can visualize the results yield of various keywords with the Venn Diagram Search . In Venn Diagram format, view the results of any number of keyword combinations. Refine the search and watch the diagram change in real time. Learn more. 

Explore This Author

Use the Explore This Author feature to visualize the context of an author within his or her field. An interactive flow chart allows users to discover the author's frequent co-authors, subjects, scholarly journals, and more. Learn more. 

Using the Law Journal Library

Knowledge base, customer training session.

Secondary Sources: ALRs, Encyclopedias, Law Reviews, Restatements, & Treatises

Legal encyclopedias, law review articles, american law reports, restatement drafts, getting help, introduction.

Secondary sources are a great place to begin your research . Although the primary sources of law--case law, statutes, and regulations--establish the law on a given topic, it is often difficult to quickly locate answers in them. Secondary sources often explain legal principles more thoroughly than a single case or statute, so using them can help you save time . Secondary sources also help you avoid unnecessary research, since you're tapping into work that someone else has already done on an issue.

Secondary sources include:

• Legal encyclopedias
• American Law Reports (ALR)
• Law review articles

Restatements

Secondary sources are particularly useful for:

• Learning the basics of a particular area of law
• Understanding key terms of art in an area
• Identifying essential cases and statutes

This guide provides a basic overview of each source, including their strengths and why you might use them, as well as tips on finding, using, and citing them.

This guide is based on material written by Deanna Barmakian.

This guide is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License .

You may reproduce any part of it for noncommercial purposes as long as credit is included and it is shared in the same manner. 

Intro to Legal Encyclopedias

Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions to legal topics and explaining relevant terms of art.They also provide citations to relevant primary law and sometimes give citations to relevant major law review articles.

There are two main legal encyclopedias in the United States that are national in scope. They are useful, but not well-suited for jurisdiction specific research.

State legal encyclopedias provide background and explanations of state legal topics. Not every state has a legal encyclopedia. Depth of coverage and quality vary. State encyclopedia articles are updated irregularly.

Electronic versions of the encyclopedias are updated directly. If using a print encyclopedia, always remember to check the pocket parts for any updates.

National Legal Encyclopedias

• American Jurisprudence 2d (AmJur) Reading Room KF 154.A42 Am Jur 2d articles summarize broad principles of U.S. law and provide citations to cases, statutes, rules, forms, and A.L.R. annotations. A six-volume general index is located at KF 154.A42. Topical indexes are located in the last volume of every topic.
• American Jurisprudence Available on Lexis
• American Jurisprudence on Westlaw
• Corpus Juris Secundum (CJS) Reading Room KF 154.C56 This 152-volume set is arranged into approximately 400 topics. Articles within topics begin with a general rule of law and are followed by the exceptions and qualifications to that general rule. A four-volume general index is located at KF 154.C56. There are also individual indexes for each major topic.
• Corpus Juris Secundum on Westlaw CJS is not available on Lexis.

State Legal Encyclopedias

Legal encyclopedias are listed alphabetically by state. Electronic versions are included only if they are comprehensive in scope.

For a few states, Westlaw offers a practice series that contains selective coverage of state law, usually covering a few major topics and information useful to litigators. To find them, browse the Westlaw directory by U.S. State Materials > Other U.S. States > State name >  Forms, Treatises, CLEs, and Other Practice Materials, then browse the page for "practice series."

• California Jurisprudence 3d Reading Room KFC 80 .C29
• Summary of California Law Reading Room KFC 80 .W5
• California Jurisprudence 3d (Westlaw)
• Summary of California Law (Lexis) Available on Lexis
• Summary of California Law (Westlaw)
• Colorado Law Annotated 2d Reading Room KFC 1880 .P76
• Florida Jurisprudence 2d Reading Room KFF 80 .F56
• Florida Jurisprudence 2d (Lexis) Available on Lexis
• Florida Jurisprudence 2d (Westlaw)
• Georgia Jurisprudence Reading Room KFG 80 .G45
• Georgia Jurisprudence (Westlaw)
• Illinois Law and Practice Reading Room KFI 1265 .I44x
• Illinois Jurisprudence (Lexis) Available on Lexis
• Illinois Law and Practice (Westlaw)
• Indiana Law Encyclopedia Reading Room KFI 3065 .W44
• Indiana Law Encyclopedia (Westlaw)
• Louisiana Civil Law Treatise Reading Room, KFL 92 - 583 (call numbers vary)
• Louisiana Civil Law Treatise (Westlaw)
• Maryland Law Encylopedia Reading Room KFM 1265 .W4x
• Maryland Law Encyclopedia (Westlaw)
• Michigan Law and Practice Encyclopedia Reading Room KFM 4265 .M63x
• Michigan Law and Practice (Lexis) Available on Lexis
• Michigan Civil Jurisprudence (Westlaw)
• Dunnell Minnesota Digest (Lexis) Available on Lexis
• Encyclopedia of Mississippi Law Reading Room KFM 6665 .E53x
• Summary of Mississippi Law Reading Room KRM 6665 .G7
• New Hampshire Practice Reading Room KFN 1280 .N48
• New Jersey Practice Reading Room KFN 1880 .N4
• New Jersey Practice (Westlaw)
• New York Jurisprudence 2d Reading Room KFN 5065 .N48
• New York Jurisprudence 2d (Lexis) Available on Lexis
• New York Jurisprudence 2d (Westlaw)
• Strong's North Carolina Index Reading Room KFN 7445 .6 .S82
• Strong's North Carolina Index (Westlaw)
• Ohio Jurisprudence 3d Reading Room KFO 65 .O35
• Ohio Jurisprudence 3d (Lexis) Available on Lexis
• Ohio Jurisprudence 3d (Westlaw)
• Pennsylvania Law Encyclopedia Reading Room KFP 65 .P46x
• Pennsylvania Law Encyclopedia (Lexis) Available on Lexis
• Summary of Pennsylvania Jurisprudence 2d (Westlaw)
• South Carolina Jurisprudence Reading Room KFS 1865 .S68x
• South Carolina Jurisprudence (Westlaw)
• Tennessee Jurisprudence Reading Room KFT 65 .T46
• Tennessee Jurisprudence (Lexis) Available on Lexis
• Texas Jurisprudence 3d Reading Room KFT 1265 .T49
• Texas Jurisprudence 3d (Lexis) Available on Lexis
• Texas Jurisprudence 3d (Westlaw)
• Michie's Jurisprudence of Virginia and West Virginia Reading Room KFV 2465 .M52
• Michie's Jurisprudence of Virginia and West Virginia (Lexis) Available on Lexis

How to Cite Legal Encyclopedias

See Bluebook B8.15 and Rule 15.8.

Quick example:

17 AM. JUR. 2d Contracts § 74 (1964).

Intro to Treatises

Treatises , not to be confused with treaties , are book-length expositions on the law as it pertains to a particular subject. Treatises may be scholarly in nature, such as Blackstone’s Commentaries on the Law , or they may be geared toward a legal practitioner, such as a manual or handbook.

A legal treatise may be a short, single volume or a large, multivolume set. Many are available electronically as well as in print. Different kinds of treatises have different purposes:

Legal hornbooks are designed as teaching tools for law students. Hornbooks provide more detailed treatments of particular areas of law than an encyclopedia or ALR entry. They generally contain summaries of landmark cases and other useful details.

Nutshells provide an overview of a legal topic without the detailed analysis or extensive case referencing found in other treatises.

Some treatises are designed to serve as practitioners’ tools. These works tend to address realistic legal problems and often provide useful features for practicing lawyers, such as forms and tables.

Looseleaf services are an example of treatises designed to serve as tools for practitioners. Such works address realistic legal problems and often provide useful features for practicing lawyers, such as forms and tables. Looseleaf services are frequently supplemented treatises--hence the looseleaf binder format that enables single pages to be easily updated without republishing the entire volume--that often contain primary legal sources and finding aids in addition to secondary analytical material, making them an invaluable resource if one exists for your topic.

Still other treatises are designed to serve as self-help publications for the public, such as those published by Nolo Press .

Finding treatises

There are several ways to locate legal treatises:

• Use the HLS Library Guide to Legal Treatises by Subject for librarian-recommended treatises in many areas of law
• Do a keyword or subject search in Hollis , Hollis Classic , or another library catalog . Use the expanded search or facets to limit your search to the law school library.
• Ask a research librarian to help you locate treatises on your topic
• Consult reference sources that review treatises by subject such as:

The Legal Information Buyer's Guide and Reference Manual by Ken Svengalis Legal Information: How to Find It, How to Use It by Kent C. Olson (note: this guide does not include single volume works) Legal Looseleafs in Print by Arlene Eis

Using treatises

Using legal treatises is like using any non-law book with a few special advisories.

First, as with any book, use the table of contents and the index to quickly locate relevant sections .

Second, remember that for a publication to provide reliable coverage of contemporary issues, it must be updated regularly and accurately to reflect any changes in the law . Updating may happen through the addition of pocket parts (which are usually tucked in a pocket in the back cover of a volume), by updated pages in a looseleaf, or periodic republication or an entire volume. Researchers should always make sure they are working with the most current edition of the treatise and be sure to consult pocket parts.

Third, while many treatises are still only available in print, more treatises are becoming available online . For example, major treatises on insurance law are available in both Lexis and Westlaw. Electronic versions of treatises allow for full text searching, which can be valuable for research. For more focused search results, consider narrowing your search to relevant sections, if possible. In many cases, you can still access the tables of contents and indexes to help locate chapters or sections of interest.

Remember that you can (and should!) check to see how current the electronic text is by clicking the I link next to the title of the treatise to see how regularly it is updated and when the last update took place.

How to Cite Treatises

See Bluebook Rule 15.

RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 330 (5th ed. 2003).

Intro to Law Review Articles

Law review or journal articles are another great secondary source for legal research, valuable for the depth in which they analyze and critique legal topics, as well as their extensive references to other sources, including primary sources.

Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers, as well as comments, notes, or developments in the law written by students. Law review articles often focus on new or emerging areas of law and they can offer more critical commentary than a legal encyclopedia or ALR entry .

Some law reviews are dedicated to a particular topic, such as gender and the law or environmental law, and will include in their contents the proceedings of a wide range of panels and symposia on timely legal issues.

Sources of full text law review articles

These resources all provide comprehensive coverage of United States law reviews, and allow you to search the full text of the articles that they index.

• Bloomberg Law Bloomberg Law is available to all HLS students, faculty, and staff. Register with your HLS email address. Law reviews are included in Bloomberg Law's selection of secondary sources.
• HeinOnline Law Journal Library Database of full text, PDF law review articles; use advanced search to search by topic or search specific titles. HeinOnline is the most comprehensive law review articles database, as coverage begins with the first issue of each journal.
• LexisNexis U.S. Law Reviews and Journals, Combined Combined full text database of United States Law Reviews and Bar Journals. Coverage begins in 1982; regular updates as received from publishers. Lexis also contains databases for Canadian law reviews articles and law review articles by jurisdiction and topic.
• Westlaw Journals & Law Reviews Journals and Law Reviews contains full text documents from law reviews and CLE materials from U.S. and Canadian based publications. Coverage varies by publication with most going back to the 1980s or 1990s.

Indexes to law reviews and journals

These resources only index articles, usually by author, title, keywords, and subject; you will have to find the full text separately. However, they provide additional ways of searching, including taking advantage of subject indexing by expert librarians, and they enable finding material that may not be found in full text databases. In most cases, there will be a link to find the article you desire at Harvard. If we do not own the journal in question, you may request the article via interlibrary loan .

• Current Index to Legal Periodicals A weekly publication by the University of Washington Library, CILP indexes the most recent law review and journal publications by subject as well as provides the tables of contents of the journals indexed. Also available on Westlaw and in print in the reference room at K 33 .C86.
• Index to Foreign Legal Periodicals IFLP indexes legal literature worldwide, covering all forms of foreign law, including comparative law and legal systems, such as Islamic law; socialist law; public and private international law; and transnational commercial law. Although Anglo-American law is not covered, British and American publications concerning foreign law are included. IFLP includes journal articles, congress reports, essay collections, yearbooks and book reviews in all languages. Coverage begins in 1985.
• Index to Legal Periodicals, Retrospective (1908 - 1981) This retrospective database indexes over 750 legal periodicals published in the United States, Canada, Great Britain, Ireland, Australia and New Zealand. Annual surveys of the laws of a jurisdiction, annual surveys of the federal courts, yearbooks, annual institutes, and annual reviews of the work in a given field or on a given topic will also be covered.
• Index to Legal Periodicals and Books (1981 - ) ILP indexes articles in over 800 legal periodicals such as law reviews, bar association journals, yearbooks, institutes, and government publications from August 1981 to the present. In 1994, ILP began indexing legal books and now indexes approximately 2,000 per year. ILP can be searched simultaneously with ILP Retrospective (see next link) through the open database selection area link.

• Index to Canadian Legal Literature (Westlaw) ICLL is a periodical index and bibliography of Canadian legal literature from 1985 to present. ICLL indexes monographs, essays, federal and provincial government publications, publications of law faculties and legal research institutes and associations, including theses, publications from the law societies and associations, legal education materials, and more. Also available in print in the reference room at KE 1 .I532 2001
• Nineteenth Century Masterfile Jones & Chipman's Index to Legal Periodical Literature covers the content of about 235 British legal periodicals and 67 Law Report titles from 1786-1937. Jones & Chipman is available as part of 19th Century Masterfile, a collection of indexes covering 19th century periodicals and newspapers. Also available in print in the Library at Reference K 33 .I53. more... less... Help Searching
• Legal Journals Index (Westlaw) Legal Journals Index provides citations to articles in over 450 legal journals published in the United Kingdom and other European countries from 1986 to the present. The index covers topics pertaining to the laws of the European Union and its member states. Citations include abstracts and links to the full-text of the article and referenced cases when available. Also available in print in the reference room at KD 59 .L44.

Working Paper Repositories

Working papers are an additional source of secondary analysis. They are frequently draft or pre-publication versions of law review articles, though you will also find published versions of articles in these databases. When citing or relying on a draft paper, be sure to carefully check its citations and request the author's permission before citing.

• SSRN Legal Scholarship Network Contains both published and working papers by law faculty, as well as scholars working in the fields of accounting, economics, financial economics, and management. Search by author and by title and abstract keywords. Most papers are available for download in pdf format.
• BePress Legal Repository Contains approximately 3000 articles and papers by law faculty.

How to Cite Law Review and Journal Articles

See Bluebook Rule 16.

Quick example: Paul Butler et. al., Race, Law and Justice: The Rehnquist Court and the American Dilemma, 45 Am. U. L. REV. 567, 569 (1996).

Intro to ALR

American Law Reports (frequently abbreviated and referred to as ALR) contains in-depth articles on narrow topics of the law. ALR articles, called annotations, provide background, analysis, and citations to relevant cases, statutes, law review articles, and other annotations .

ALR is published in series:

• two series under its original title Lawyers Reports Annotated
• eight ALR series, one through six
• two federal series

ALR annotations are not jurisdiction specific. Each annotation contains a Table of Jurisdictions to help you find relevant cases within specific states. In the federal series, the Table of Jurisdictions directs you to cases by circuit.

All ALR series continue to be updated, though not on a regular schedule. When using the set in print, always check the pocket parts for updates. ALR is also available in both Lexis and Westlaw, and the electronic versions incorporate updates into the text. ALR annotations can also be completely superceded by more recent annotations. Electronic versions will provide referrals to the superceding annotations, but in print, you should check the History Table at the end of the ALR Index to verify that your annotation has not been superceded.

Find relevant annotations by using the print indices or searching the ALR databases in Lexis or Westlaw. When using ALR electronically, it is most efficient to look for your terms in the titles of the annotations, since their titles are specific, and reflect their contents.

Finding ALR in print and online

• ALR on Westlaw Contains the full text of the annotations included in the First, Second, Third, Fourth, Fifth, Sixth, Federal, and Federal Second series of American Law Reports (ALR) and the Index to Annotations covering these series. Because West publishes ALR, this is the most comprehensive electronic version.

• The ALR Index is located in the Reading Room at KF 132.2.I53. It covers annotations written since 1948.
• The ALR Quick Index is located in the Reading Room at KF 132.6.A543. It covers major annotations from the ALR 3d series to the present.

How to Cite ALR Annotations

See Bluebook Rule 16.6.6

William B. Johnson, Annotation, Use of Plea Bargain or Grant of Immunity as Improper Vouching for Credibility of Witness in Federal Cases, 76 A.L.R. FED. 409 (1986).

Intro to Restatements

Restatements are highly regarded distillations of common law . They are prepared by the American Law Institute (ALI), a prestigious organization comprising judges, professors, and lawyers. The ALI's aim is to distill the "black letter law" from cases to indicate trends in common law, and occasionally to recommend what a rule of law should be. In essence, they restate existing common law into a series of principles or rules.

Restatements cover broad topics, such as Contracts or Property. They are organized into chapters, titles, and sections. Sections contain a concisely stated rule of law, comments to clarify the rule, hypothetical examples, explanation of purpose, as well as exceptions to the rule.

Restatements are not primary law. Due to the prestige of the ALI and its painstaking drafting process, however, they are considered persuasive authority by many courts. The most heavily cited Restatements are the Restatement of Torts and the Restatement of Contracts.

The ALI web site contains information regarding Restatement projects, ALI membership, history and institutional processes.

Finding Cases Discussing Restatements

Annotations of cases citing a Restatement section can be found in the Appendix volumes the Restatements in print. There may be one or many Appendix volumes. They are organized by Restatement series, (i.e. citations to the first Restatement, then second, etc.), then by section number. Appendices are not cumulative. The spines indicate sections and years covered. They are updated with pocket parts, cumulative annual supplements, and semiannual pamphlets called Interim Case Citations. The same case annotations are available when using the Restatements on LexisNexis or Westlaw.

You can Shepardize a Restatement section on LexisNexis using the following formats. Note that Bluebook citation format for Restatements, or permutations thereof, will not work.

• torts second sec. 46
• property second (donative transfers) sec 25.9
• conflict of laws second sec. 6
• contracts second sec. 35 cmt. d illus. 7

You can also KeyCite a Restatement section on Westlaw using the following formats. Note that KeyCite finds significantly more citing material than Shepard's for Restatements. (See the KeyCite Publications List for additional help with citation format.)

• rest agen s 1
• rest 2d contr s 3
• rest 2d prop-lt s 1.1
• rest 3d trusts-pir s 170

Current Restatements

Listed below are print editions of the Restatements and their locations in the library. Restatements are also available on both Lexis and Westlaw:

Restatements on LexisNexis Rules (along with comments, illustrations, and notes) are searchable in separate sources from case citations. This makes searching for relevant rules very efficient on LexisNexis. Case citations are linked from individual rules. Browse tables of contents or search by keyword. Restatement drafts are in separate sources from final versions of Restatements. The first series of Restatements is not available on LexisNexis.

Retreiving Restatement sections using Get a Document is not intuitive. Search for restatement in the Get a Document Citation Formats list to determine the proper format.

Restatements on Westlaw All series of Restatements are available on Westlaw. Browse tables of contents or search by keyword. Searching the Restatements on Westlaw can be problematic, because multiple series as well as selected drafts are combined into one database along with case citations to all of them, e.g. Torts first, second, and the topic-specialized Torts third series along with citations to all series are in one database. This can make keyword searching inefficient unless you use a fielded search or use the Table of Contents mode to search within a particular Restatement. Examine your search results carefully to ensure you are looking at the current version of a rule. If a rule has been superceded, there will be note above the rule text indicating this.

Retrieving Restatement sections using Find is somewhat intuitive. The format mimics the database ID. See the listed format for KeyCite below; they will also work for Find. For a complete list of Restatement retrieval formats, search the Find Publications List for restatement. 

• Agency 2d Reading Room KF 1345 .A764
• Agency 3d Reading Room KF 1345 .A764
• Conflict of Laws 2d Reading Room KF 411 .A453
• Contracts 2d Reading Room KF 801 .R47
• Foreign Relations Law of the United States 3d Reading Room KF 4651 .A748x
• Judgments 2d Reading Room KF 8990 .R48
• Law Governing Lawyers 3d Reading Room KF 300 .R47
• Property Reading Room KF 570 .A73
• Property, Donative Transfers 2d Reading Room KF 613 .R47
• Property, Landlord and Tenant 2d Reading Room KF 590 .A84
• Property, Mortgages 3d Reading Room KF 695 .R49
• Property, Servitudes 3d Reading Room KF 656 .R475x
• Property, Wills and Other Donative Transfers 3rd Reading Room KF613 .R479x
• Restitution: Quasi Contracts & Constructive Trusts Reading Room KF 1244 .R46x
• Security Reading Room KF 1050 .A745
• Suretyship and Guaranty 3d Reading Room KF 1045 .R463x
• Torts 2d Reading Room KF 1249 .A4 R47
• Torts, Apportionment of Liability 3d Reading Room KF 1249 .A4 R4774x
• Torts, Liability for Physical and Emotional Harm 3d Reading Room KF1286 .R473x
• Torts, Products Liability 3d Reading Room KF 1296 .R476x
• Trusts 2d Reading Room KF 730 .A8
• Trusts 3d Reading Room KF 730 .R4763x
• Trusts, Prudent Investor Rule 3d Reading Room KF 730 .R4725
• Unfair Competition 3d Reading Room KF 3195 .R475x

Restatements in Draft Status

For more information about the drafting process, see the Restatements Drafts sub-tab.

• Employment Law 3d (discussion draft) Reading Room KF3319 .R473x
• Restitution and Unjust Enrichment 3d (tentative draft) Reading Room KF 1244 .R463x
• Torts, Economic Torts and Related Wrongs 3d This project began in 2010; there are no drafts yet.
• U.S. Law of International Commercial Arbitration 3d

How to Cite Restatements

See Bluebook Rule 12.8.5

RESTATEMENT (THIRD) OF PROP.: DONATIVE  TRANSFERS § 2 (2000).

• Liability for Economic Harm (tentative draft) (Torts 3d)

The Drafting Process

For a short overview of the drafting process for a Restatement, see How the ALI Works .

Parties Involved

• ALI Officers: a group of approximately ten, including the Chair of the Council, President, Vice Presidents, Treasurer, Director, and Deputy Directors
• ALI Council: an elected, standing group of approximately sixty judges, professors, and lawyers
• Reporter: Head of the Restatement project appointed by the ALI Officers and Council, responsible for drafting the language of the Restatement
• Advisers: Group of professors and lawyers (usually 12-30 for a Restatement) with subject expertise appointed to advise the Reporter
• Members Consultative Group: Groups of ALI members (usually 50-75 for a Restatement) interested in the topic of a Restatement who wish to offer input
• ALI Membership: a approximately 3000 ALI members who discuss and ocasionally vote on Restatement language at annual meetings; membership gives input only near the end stages of the drafting process

Drafting Process

The following process typically takes between 9 and 21 years:

• A Reporter is appointed by the Council
• The Reporter divides the project into parts that go through the following process separately:
• The Reporter writes a preliminary draft
• The Preliminary draft is sent to the Advisers and the Members Consultative Group
• The Advisers and Members Consultative Group recommend revisions
• The Reporter, at his/her discretion, makes the revisions
• The draft goes back and forth between the Advisers and the Reporter and a series of revised preliminary drafts are made
• The Reporter and Advisers send a council draft to the Council of the Institute
• The Council suggests revisions
• The Reporter is somewhat obliged to make the suggested revisions
• The draft goes back and forth between the Advisors and the Council and a series of council drafts are made
• The Council presents a tentative draft to the ALI membership
• The draft goes back and forth between the Council and the Membership and a series of tentative drafts are made
• Issues surrounding the draft settle and a proposed final draft is usually created
• The proposed final draft (or last tentative draft) is submitted to the ALI Membership at the annual meeting
• The Membership and the Council approve the proposed final draft
• The Restatement is adopted and promulgated and the official text of the Restatement is published

Other ALI-authored works, such as Uniform Commercial Code articles, are created in a similar process. If you want assistance locating materials relating to non-Restatement ALI projects, please ask a research librarian .

TRACING THE HISTORY AND DEVELOPMENT OF RESTATEMENT SECTIONS

Legal researchers sometimes need to trace the historical development of a Restatement section, the impetus for its inclusion, which section of a prior Restatement it derived from, or how it came to be worded a certain way.

For many sections, Reporter's notes explain the development of a section, often explaining earlier versions and citations to cases that were used as the basis for the rule. Reporters notes can be found in the Appendix volumes of individual Restatements.

To trace how the text changed during the drafting process, you can compare various drafts: the tentative drafts, council drafts, preliminary drafts and proposed final drafts. Each draft has its own record in the library catalog. Use the Title Keywords search in  Hollis Classic --for example, search  restatement torts --to locate them. Drafts are also available in the microform set Archive Publications described below.

Some Restatement volumes contain conversion tables. These tables indicate where sections of drafts or sections from earlier series were included in the final, adopted version of a Restatement.

Although some Restatements are designated 2d or 3d, there are not always antecedents. For instance, the Restatement of the Law Governing Lawyers is a Restatement of the Law Third, but there has never been a first or second Restatement of the Law Governing Lawyers.

• The Proceedings of the Annual Meeting of the American Law Institute Available online from 1997 Available on Westlaw from 2000 For additional and older material, see: Reading Room KF 294 .A5 A3 Microform Room Drawer 812 An excellent research tool for those tracing the development of a Restatement section. The ALI has published the Proceedings annually since 1923, except for 1945-1955. The Proceedings contain reports to ALI members, Reporter presentations, transcripts of discussions of drafts, the text of proposed amendments, and include an index of sections discussed. For the years 1945-1955, the Proceedings are only available in the Archive Publications set described below.
• The ALI Reporter Available online from 1999 Reading Room KF 200 .A455 The ALI's quarterly newsletter contains the latest information about ALI projects, meetings, and members, including reports on actions taken on drafts and the full text of chapters approved for discussion at the annual meeting with revisions explained.
• Archive Publications Microfilm Room KF 294.A5 A43, Drawers 963-965 A microfiche set containing the text of of Restatements, all drafts, and ALI Proceedings from annual meetings for the years that were not officially published, 1945-55. It also contains drafts of four Restatement projects that were terminated before completion. The set is arranged by Restatement, by section, and chronologically. Coverage starts with the founding of the ALI in 1923. All drafts produced for ALI projects are added to this set a few years after the project is completed or terminated. There is a print guide to this microfiche collection in the Microform Room at KF 294 .A5 A43.
• American Law Institute Archives Finally, there is a well-indexed, comprehensive collection of the American Law Institute Archives at the Biddle Law Library of the University of Pennsylvania. The archive contains drafts, comments, and correspondence related to ALI projects.

Determining the Current Status of Restatement Drafts

The American Law Institute is continually working on Restatements and other projects. Researchers are often interested in determining whether a Restatement has become final, or what stage the drafting process has reached. The following tools can help answer those questions, as well as provide a history of the development of ALI projects.

• ALI Catalog of Publications The catalog contains information about draft content and authorship. It mentions which portions of Restatements are superceded or in development.
• Annual Report of the ALI Director The Annual Report summarizes work contemplated, underway, and completed during the year on various Restatements. Available online from 1999. Reports 1988-1998, are available in the Reading Room KF 294 .A5 A14 .
• Proceedings of ALI Annual Meetings The Proceedings contain proposed amendments, an index of sections discussed, and records of discussions. Meetings take place in May and the Proceedings are usually available by March or April of the following year. Available online from 1997 Available on Westlaw from 2000 For additional and older material, see: Reading Room KF 294 .A5 A3 Microform Room Drawer 812

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What Is a Law Review and How Is It Important?

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You may have heard the term “Law Review” thrown around in popular movies like The Paper Chase and A Few Good Men , but what is it and why is having this phrase on your resume a benefit?

What a Law Review Is 

In the context of law school, a law review is an entirely student-run journal that publishes articles written by law professors, judges, and other legal professionals; many law reviews also publish shorter pieces written by law students called “notes” or “comments.”

Most law schools have a “main” law review that features articles from a wide variety of legal subjects and often has “Law Review” in the title, for example, Harvard Law Review ; this is the “Law Review” addressed in this article. In addition to Law Review, most schools also have several other law journals that each focus on one particular area of the law, such as the Stanford Environmental Law Journal or the Duke Journal of Gender Law and Policy .

Generally, students join Law Review in their second year of law school, although some schools also permit third-year students to try out for Law Review as well. Each school’s process for selecting Law Review staff differs, but many have a write-on competition at the close of first-year exams during which students are given a packet of material and are asked to write a sample note or comment within a specified time frame. An editing exercise is often required, as well.

Some law reviews offer invitations to participate based solely on first-year grades, while other schools use a combination of grades and write-on competition results to select members. Those who accept invitations will become law review staff members.

Law review staff members are responsible for cite checking—making sure that statements are supported with authority in footnotes and also that the footnotes are in the correct Bluebook form. Editors for the following year are selected by the current year’s editorial staff, usually through an application and interview process.

Editors oversee the running of the law review, from selecting the articles to assigning work to staff members; there is often no faculty involvement at all.

Why You Should Want to Get on Law Review

The biggest reason that you should try to get on law review is that employers, particularly large law firms and judges selecting law clerks, love to interview students who have participated in Law Review, especially as an editor.

Why? Because students on Law Review have spent many hours doing precisely the kind of in-depth, meticulous legal research and writing that is required of attorneys and law clerks .

A potential employer who sees Law Review on your resume knows that you have been through rigorous training, and will likely think that you are intelligent and have a strong work ethic, eye for detail, and excellent writing skills.

But Law Review can be useful even if you don’t plan on working in a big law firm or don't plan on clerking, particularly if you plan to pursue an academic legal career. Law Review can give you a great start on the road to becoming a law professor, not only because of the editing experience but also through the opportunity of having your own note or comment published.

On a more personal level, participating in Law Review can also provide a support system as you and the other members are going through the same things at the same time. And you also might even enjoy reading the submitted articles and getting to know the Bluebook in and out.

Serving on Law Review requires an enormous time commitment, but for most members, the benefits greatly outweigh any negative aspects.

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Cornell Law Review

Volume 109, Issue 3

The Right to a Glass Box: Rethinking the Use of Artificial Intelligence in Criminal Justice

Brandon L. Garrett & Cynthia Rudin

L. Neil Williams, Jr. Distinguished Professor of Law, Duke University School of Law and Faculty Director, Wilson Center for Science and Justice, Earl D. McLean, Jr. Professor of Computer Science, Electrical and Computer Engineering, Statistical Science, Mathematics, and Biostatistics & Bioinformatics, Duke University.  

Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how…

Excuse 2.0 

Yehonatan Givati, Yotam Kaplan & Yair Listokin

Sylvan M. Cohen Professor at Hebrew University Law School, Professor at Hebrew University Law School, Deputy Dean and the Shibley Family Fund Professor of Law at Yale Law School.  

Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds significant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view…

Forced Robot Arbitration 

David Horton

Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law.  

Recently, advances in artificial intelligence (“AI”) have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over whether…

Collective Disagreement: The Uneasy Interaction of the FLSA and FRCP 4(k) After Bristol-Myers Squibb

Ronahn Clarke

J.D. Candidate, Cornell Law School, 2024; B.A., Philosophy and Classical Civilization, Colby College, 2021.  

Across the country, due to a circuit split over the meaning of Federal Rule of Civil Procedure (“Rule”) 4(k), federal courts are enforcing the Fair Labor Standards Act (“FLSA”) inconsistently. This Note argues that, under the current state of the law, Rule 4(k) must be read to apply to out-of-state opt-in employee-plaintiffs’ claims and FLSA…

Dependent Contractors? The Case for Giving Non-Competes a Central Role in Worker-Classification Tests Under Federal Law

Cameron  Misner

  J.D. Candidate, Cornell Law School, 2024; B.A. in Political Science, University of Indianapolis, 2021.  

As legal commentators and policymakers have taken greater notice of the harms that covenants not to compete (“noncompetes”) cause workers, they have offered numerous policy proposals seeking to curb those harms. Indeed, the Federal Trade Commission proposed an outright ban on non-competes on January 5, 2023. None of these policy proposals have yet become law…

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A common law for the age of amici: how the party-presentation principle can help identify binding precedent.

David S. Coale

Partner, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, Texas.  

Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding. In the first, United States v. Sineneng-Smith, the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit’s handling of…

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by on March 30, 2023

The Equal Rights Amendment: Making Our Union More Perfect

By: Ally Coll & Michelle Kallen

In January 2020, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA). Thirty-eight should have been the magic number: Article V of the United States Constitution, which lays out the process for Constitutional amendments, provides that a proposed amendment becomes part of the Constitution as soon as it is ratified by ¾ of the states. But advancing women’s legal rights in the United States has never followed an easy or straightforward path, and the ERA’s journey has been no exception.

In 1869, Wyoming became the first state to grant women the right to vote–but when Susan B. Anthony tried to invoke that right in the 1872 presidential election, pointing to the newly enacted Fourteenth Amendment’s guarantee of equal protection of the laws to “any person,” she was arrested, convicted, and fined. It took another fifty years before the women’s suffrage movement would achieve its goal of amending the Constitution to grant women the right to vote with the ratification of the Nineteenth Amendment. 

Recognizing that securing the right to vote was only an initial step toward full equality under the law, women’s rights activists pushed for the introduction of the ERA a few years later. The original text of the amendment, which was first introduced to Congress in 1923, stated: “Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction.” 

Twenty years later, Alice Paul rewrote the ERA to better reflect the language in the Fifteenth and Nineteenth Amendments. The new version would firmly establish that the “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” and provide Congress with the explicit authority to enforce this requirement with appropriate legislation. Lawmakers proceeded to introduce this version of the ERA in every session of Congress for the next thirty years, but it wasn’t formally proposed for ratification by the states until 1972. 

That year, the amendment passed both chambers of Congress with bipartisan support far exceeding the two-thirds majorities required by the Constitution. Congress then sent the proposed amendment to the states for ratification, and, as had become standard practice, included a seven-year deadline in the proposing clause. Thirty-five states soon ratified the ERA, but opposition to the proposal brought the ratification process to a halt. Congress extended the deadline to 1982, but instead of securing additional ratifications during that time, five states instead tried to rescind their prior ratifications–an action that had questionable legal effect, but nonetheless sent a clear message: the ERA’s momentum had stalled.

But, in 2017, thirty-five years after the extended deadline expired, and in the midst of the “Me Too” movement, Nevada put the issue back on the table and ratified the ERA. Illinois followed suit the following year, and in 2020, Virginia provided the final ratification necessary to reach the ¾ requirement set forth in Article V.  The effort, however, was far from over.

When a constitutional amendment is ratified by the requisite number of states, federal law tasks the United States Archivist (the head of the National Archives) with certifying and publishing the amendment.  As it became evident that Virginia was on the cusp of ratifying the ERA, the Trump administration Office of Legal Counsel (OLC) released a legal opinion declaring the ERA expired.  According to that opinion, none of the three final states’ ratifications could count towards Article V’s ¾ requirement.

Although the Archivist at the time, David Ferriero, had previously expressed support for the ERA, he refused to certify and publish the ERA, citing the Trump administration OLC opinion.  Virginia, Nevada, and Illinois sued.  They argued that Ferriero had a ministerial duty to certify and publish the ERA, because the Constitution did not grant the Archivist (or any executive branch official) the power to nullify state ratifications of constitutional amendments.  The fact that the ratifications came after the deadline did not invalidate them. The states argued that Congress’s decision to place the deadline outside the text of the amendment–a departure from Congress’s previous practice of placing deadlines in the text of the amendment itself–was pivotal.  Furthermore,  Article V of the Constitution specifically empowers Congress to do only two things: (1) “propose” amendments, and (2) select one of two “modes” of ratification (state conventions or ratification by state legislatures).  It  did not empower Congress to place external constraints on how states ratified. Unlike a deadline outside the text, a deadline within the text of an amendment requires ratifying states to also ratify the deadline.  Ratification by states after an amendment’s deadline would mean the expired amendment is part of the Constitution, but because of the deadline, the amendment would be inoperative (much like the Eighteenth Amendment).  Thus, the states urged, a time limit outside the text of a proposed amendment is non-binding on ratifying states.

A district court judge in DC dismissed the case .  The judge reasoned that the three states suffered no legal injury and, therefore, did not have standing to bring the case.  The judge reasoned further that the deadline in the ERA’s proposing clause meant that the states could not establish a clear entitlement to relief.  When the Biden administration assumed responsibility for the case, it did not change position.  In fact, President Biden’s pick for Archivist made clear during her confirmation hearing that she plans to stand by the Trump administration OLC’s opinion unless she is instructed otherwise by a court. Such instruction is unlikely to come any time soon. In February 2023, the DC Circuit affirmed the district court’s dismissal of the case, reasoning that the plaintiff states did not establish the “clear and indisputable” right to relief necessary to succeed on a mandamus claim.  It is unclear whether the plaintiff states will appeal this ruling.

Meanwhile, in 2021, the U.S. House of Representatives passed a joint resolution removing the original deadline to the ERA.  The bill’s co-sponsor Representative Carolyn Maloney explained, “We introduced this resolution to underscore and affirm that the ERA has been validly ratified as required by the Constitution, and should be recognized as the 28th Amendment to the U.S. Constitution.”  Her argument was based on history. Until the turn of the twentieth century, deadlines were not generally used in connection with constitutional amendments.  (In fact, the Twenty-Seventh Amendment was ratified more than 200 years after it was proposed.)  And when Congress began the practice of affixing deadlines to amendments, it did so in the text of the amendments themselves, not outside the text as it did with the ERA.  For the same reasons Virginia, Nevada, and Illinois cited in their earlier lawsuit, the deadline did not kill the ERA.

Bipartisan legislation to remove the ERA’s deadline similar to that in the House was introduced in the Senate in 2021, but never received a vote in the upper chamber.  In 2023, new legislation was introduced in the Senate to remove the ERA’s deadline.  That legislation remains pending.

While the legal status of the ERA hangs in the balance, the importance of enshrining an express prohibition on sex discrimination in the Constitution has never been more obvious. This summer, the Supreme Court reversed its long-standing precedent finding a Constitutional right to abortion under the Fourteenth Amendment, removing a fundamental right that has disproportionately benefited women for the past fifty years. Five years after Tarana Burke’s longstanding #MeToo movement went viral, existing laws still fail to adequately protect employees from sexual harassment and other forms of sex-based discrimination at work.

The ERA could also provide a new legal mechanism for challenging the swath of anti-LGBTQ bills that state legislatures have introduced over the past several years. In light of the Supreme Court’s 2020 decision in Bostock v. Clayton County , these measures, which range from anti-trans policies to religious exemption bills, could face heightened scrutiny if the ERA became law. In a textualist opinion authored by Justice Neil Gorsuch, the Court in Bostock concluded that, in the context of the Civil Rights Act of 1964, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

This year marks 100 years since the ERA was first introduced, and the need to codify an explicit commitment to sex equality into our nation’s founding document has never been more urgent. Without the ERA, the U.S. Constitution is the only major constitution with a bill of rights but with no express recognition of equality on the basis of sex. Now that the Supreme Court has undermined its longstanding precedent protecting reproductive and LGBTQ+ rights under the Fourteenth Amendment, it’s clear that enacting the ERA is the only way to ensure that people of all genders are guaranteed equal protection of the laws under the U.S. Constitution in the decades to come. 

Ally Coll is an Assistant Professor of Legal Studies at George Mason University, and Co-Founder of the Purple Campaign , a non-profit organization she launched in 2018 to address workplace harassment in the wake of the #MeToo movement.

Michelle Kallen is a partner in Jenner & Block’s Supreme Court and Appellate Practice.  She is the former Solicitor General of Virginia, where she served as lead counsel on behalf of the Commonwealth to certify and publish the Equal Rights Amendment to the U.S. Constitution.

by on October 16, 2022

Agency Names Do Not Constrain Agency Powers

By: Ryan H. Nelson

In January, the Supreme Court quashed the best thing our government had done to fight the pandemic.  In a  6-3 opinion , the Court paused implementation of the Biden Administration’s workplace vaccine-or-test-and-mask requirement for larger private employers until its legal challenges resolved.

Granting such a drastic provisional remedy requires a determination that the challengers are likely to prevail at the end of the litigation.  The Court’s majority believed that prerequisite to be satisfied because, in their view, the Occupational Health and Safety Administration (OSHA) lacked authority to impose the workplace vaccine-or-test-and-mask requirement.  According to the majority, the requirement was not “occupational” in most workplaces since workers can catch COVID-19 anywhere.  OSHA then chose to withdraw the requirement rather than fight a battle it was almost certain to lose.

The majority was wrong for several reasons.  Foremost, all dangers that arise in the workplace are necessarily “occupational” dangers even if those dangers arise elsewhere, too.  Take, for example, the backache you get from sitting at your desk at work, which you could also get from sitting in your armchair at home.  Moreover, the law OSHA invoked to promulgate the requirement— Section 6(c) of the Occupational Health and Safety Act of 1970 —does not use the word “occupational.”  Thus, the Court’s insistence that OSHA can regulate only “occupational” dangers is an atextual reconceptualization of the Constitution’s separation of powers that belies precedent and sound governance in ways beyond the scope of this critique.  

Yet, amidst this decision’s derision, one particular line in the majority’s opinion deserves pointed attention and castigation.  In building its case for why the requirement needed to address dangers that were “occupational” in nature—not merely address “grave danger” to “employees,” as Section 6(c) of the Act says—the Court not only cited to the Congressional declaration of the Act’s purpose and policy, but it appears to have been persuaded by the agency’s name itself.  “As its name suggests,” the Court reasoned, “OSHA is tasked with ensuring occupational safety.”

Despite  the Supreme Court’s prior recognition that “the title of a statute or section can aid in resolving an ambiguity in the legislation’s text,” the majority invoked the agency’s  name , not the title of the Act or Section 6(c), and it did so without finding an ambiguity in Section 6(c) that it needed to resolve.  Has the Court invented a new rule that government agencies’ powers might be delimited by their names?  If so, many federal initiatives could be doomed.

The U.S. Department of Housing and  Urban  Development  has designated four “ rural ” communities  in Florida, Kentucky, Puerto Rico, and South Carolina as promise zones aimed at “accelerat[ing] and strengthen[ing] the community’s own efforts at comprehensive community revitalization.”  The government should not cease this valuable work because the agency’s name uses the word “urban” and not “rural.”

Within the U.S. Department of  Veterans  Affairs lies the  National Cemetery Administration —the agency that runs Arlington National Cemetery in Virginia.  Its oversight includes  several  civilians ’ graves , such as those of First Lady Jacqueline Kennedy Onassis, Supreme Court Justices Thurgood Marshall and Ruth Bader Ginsburg, and civil rights activist Medgar Evers.  Their graves deserve care in this place of honor despite the word “veteran” in the agency’s name.

The  National  Railroad Passenger Corporation , better known as Amtrak, includes several  routes  outside of our nation , including at least one route located entirely within Canada, between Aldershot and Toronto.  The government ought not sever the tracks at the border on account of the word “national” in the agency’s name.

New technology  “preventing failure as well as expensive repairs and replacements” in “electrical generators” was developed not by the U.S. Department of  Energy , but by the Bureau of Reclamation within the  U.S. Department of the  Interior , the agency that manages natural resources and cultural heritage.  The agency should not stop working to keep electricity prices down because the word “interior,” not “energy,” appears in its name.

These examples highlight the absurdity of the Supreme Court’s insinuation.  Agency names do not constrain agency powers.  Laws do.  Hopefully, the Supreme Court’s suggestion to the contrary was mere  dicta —a throwaway, introductory clause prefiguring the actual legal analysis to come.  But, with this Court’s hostility to the administrative state, one can never be too certain.

Ryan H. Nelson (@RyanHNelson) is an Assistant Professor of Law at South Texas College of Law Houston. 

by on November 11, 2021

SB 8 Reveals the Difference Between a Private Vigilante Law and a Private Attorney General Statute

By Poppy Alexander and Chris McLamb*

During the oral arguments heard by the Supreme Court last week regarding Texas’s anti-abortion statute (SB 8), a significant part of the back-and-forth was devoted to whether the law can be compared to a whistleblower statute. SB 8 enlists private citizens to report other citizens for exercising their constitutional rights––a far cry from whistleblower laws that enlist private citizens to go after fraudsters who cheat the government and the public. Yet this line of questioning, tangential as it may seem, helped expose the Texas law for what it is: a brazen attempt to circumvent Roe v. Wade .

[Read more…] about SB 8 Reveals the Difference Between a Private Vigilante Law and a Private Attorney General Statute

by on October 3, 2021

SB 8’s Unnoticed “Sword of Damocles” Provision

By David S. Cohen*

Texas’s Senate Bill 8 (SB8) is, to use a technical legal word, bonkers. And I’m not even talking about the substance of the bill, which is a clearly unconstitutional ban on abortions at six weeks of pregnancy, which is long before viability. Rather, the law is bonkers because of all of the procedural irregularities built into it. Consider the following abnormalities: [Read more…] about SB 8’s Unnoticed “Sword of Damocles” Provision

by on September 16, 2021

Asylum, Interrupted

By Haiyun Damon-Feng*

One of the cruelest and most devastating Trump-era immigration policies was the Remain in Mexico policy, formally titled the “Migrant Protection Protocols” (MPP). [1] MPP upended decades of established asylum law and practice, forcing asylum seekers to wait in Mexico pursuant to a bilateral agreement between the U.S. and Mexico —where many were kidnapped, raped, tortured, or otherwise exploited or killed for their vulnerability as migrants—while they pursued their immigration cases before U.S. immigration courts. [Read more…] about Asylum, Interrupted

by on March 5, 2021

Restoring the Right to Seek Asylum: The Case for Rescinding Removal Orders Issued Under the “Remain in Mexico” Policy

By Haiyun Damon-Feng*

In January 2019, the Department of Homeland Security (DHS) began implementing the inaptly named “Migrant Protection Protocols” (MPP), often referred to as the “Remain in Mexico” policy. MPP is a coercive, inhumane, and likely unlawful U.S. immigration policy that marked a stark departure from U.S. asylum law and procedure. Asylum is a humanitarian protection available to people fleeing persecution in their home countries, including people who have suffered severe violence and threats of death on account of their religion, sexual orientation, gender, or political beliefs. [Read more…] about Restoring the Right to Seek Asylum: The Case for Rescinding Removal Orders Issued Under the “Remain in Mexico” Policy

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Volume 76, issue 4, real-world prior art, by   jonathan s. masur & lisa larrimore ouellette.

The most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. Yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior…

Tribal Representation and Assimilative Colonialism

By   elizabeth hidalgo reese.

There are 574 federally recognized domestic dependent tribal nations in the United States. Each tribe is separate from its respective surrounding state(s) and governs itself. And yet, none of them have the power to send representatives to Congress. Our democratic representative structures function as if tribal governments and the reservations they govern do not exist.…

Meaningful Machine Confrontation

By   benjamin welton.

Machine-generated evidence is now ubiquitous in criminal trials, and more sophisticated forms of inculpatory evidence are on the way. Courts have almost universally held that the Confrontation Clause does not give criminal defendants a constitutional right to confront machine-generated evidence, except in narrow cases where the evidence also contains testimonial statements made by a human…

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Recent online essays, the pardon power and federal sentence-reduction motions: a response to yost and flowers, by jaden m. lessnick.

In his response to Ohio Attorney General Dave Yost and former Ohio Solicitor General Benjamin Flowers, Jaden Lessnick argues that the federal sentence-reduction statute (18 U.S.C. § 3582(c)(1)(A)) is not preempted by the presidential pardon power. Lessnick contends that the statute does not offend the traditional separation-of-powers principle, and preemption is not justified under the unitary executive theory.

Alternative Action After SFFA

By kim forde-mazrui.

Prof. Kim Forde-Mazrui of the University of Virginia responds to Sonja Starr’s print Article, The Magnet School Wars and the Future of Colorblindness . Forde-Mazrui argues that even if courts adopt the “ends-colorblindness” framework described by Starr, “alternative action” policies meant to promote diversity may still be constitutionally permissible.

The Making of the A2J Crisis

By nora freeman engstrom & david freeman engstrom.

Access to justice has become a defining legal and political issue. In this Essay, Nora Freeman Engstrom and David Freeman Engstrom work to identify the cause of the Access to Justice Crisis.

The Criminally Complicated Copyright Questions about Trump’s Mugshot

By cathay y. n. smith.

The mugshot taken of Donald Trump in connection with his Georgia criminal prosecution has become one of the defining political images of the time. In this Essay, Cathay Y. N. Smith discusses who owns the copyright to this iconic photo.

Too Late: Why Most Abortion Pill Administrative Procedure Challenges Are Untimely

By susan c. morse & leah r. butterfield.

In this response piece to the Abortion Pills piece in the Stanford Law Review , Prof. Susan Morse and Leah Butterfield of the University of Texas explain why most administrative challenges to abortion pill regulations are untimely.

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Law Article Review Sample: Expert Analysis and Examples

Exploring a law article review sample.

Law articles are a crucial part of legal research and analysis. They provide insight into recent developments in the legal field, offer critical analysis of court decisions, and help legal professionals stay updated on current trends. In this blog post, we will review a sample law article and discuss its key components, analysis, and overall impact.

Law Article Review

Let`s start by looking at a sample law article titled “The Impact of Technology on Privacy Rights in the Digital Age.” This article, published in the Harvard Law Review, delves into the implications of technological advancements on individual privacy and the legal framework surrounding it.

Components the Article

The article begins with an introduction to the historical context of privacy rights and how they have evolved in response to technological innovations. It then delves into case studies and statistical analysis to demonstrate the impact of technology on privacy laws.

The author provides a thorough analysis of the legal precedents and current legislation surrounding privacy rights. They offer a balanced perspective, considering both the benefits and drawbacks of technological advancements, and their implications for privacy.

This article serves as a thought-provoking piece that highlights the complexities of privacy rights in the digital age. It offers valuable insights for legal professionals, policymakers, and individuals concerned about the intersection of technology and privacy.

Reflections

As a legal researcher, I found this sample law article to be an insightful exploration of a timely and relevant topic. The detailed analysis and use of case studies added depth to the discussion, making it a valuable resource for anyone interested in privacy law.

Law article reviews offer a glimpse into the ever-changing landscape of legal issues and provide readers with valuable perspectives and analysis. The sample article we reviewed exemplifies the importance of staying informed about current legal debates and developments.

Law Article Review Sample Contract

Welcome Law Article Review Sample Contract. This contract outlines the terms and conditions for the review of legal articles by the contracting parties. Please review following terms carefully.

Whereas Party A, represented by Law Firm X, requires legal article review services, Party B agrees to provide such services in accordance with the terms and conditions outlined below.

Terms Conditions

1. Party B shall provide legal article review services to Party A in compliance with all applicable laws and regulations.

2. Party B shall maintain confidentiality of all legal articles reviewed and shall not disclose any information to third parties without the prior written consent of Party A.

3. Party B shall provide a detailed written review of each legal article, including analysis and commentary on the content and legal implications.

4. Party A shall compensate Party B for the legal article review services in accordance with the fee schedule agreed upon by both parties.

5. This contract shall be governed by the laws of [Jurisdiction] and any disputes arising out of or in connection with this contract shall be resolved through arbitration in accordance with the rules of [Arbitration Organization].

This contract is entered into by the parties as of the date first written above.

Legal Article Review Sample: 10 Important Questions Answered

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The FTC’s Noncompete Ban Was Long Overdue

Empirical evidence backs up the argument that trade secrets can remain protected even as talent is freely mobile.

The FTC’s new noncompete rule adopts a comprehensive prohibition on the use of noncompete clauses in any U.S. industry with any worker, including those at senior executive levels. The rule is promulgated using the FTC’s authority to determine practices that are unfair methods of competition. For those who have long argued against the use of noncompetes, this moment has been a long time coming. While the rule already faces legal challenges, company leaders would be well advised to make sure they understand what’s in the rule, its potential impact, and what it could mean for employees. Far from being an anti-business rule, the ban on noncompetes stands to spur innovation and grow markets.

The Federal Trade Commission (FTC) made history last week when it passed a new rule that fundamentally alters the landscape of employment agreements across the U.S.  The agency’s noncompete rule adopts a comprehensive prohibition on the use of noncompete clauses in any industry with any worker, including those at senior executive levels. The rule is promulgated using the FTC’s authority to determine practices that are unfair methods of competition. For those like me who have long argued against the use of noncompetes, this moment has been a long time coming.

• OL Orly Lobel is the Warren Distinguished Professor and director of the Center for Employment and Labor Policy (CELP) at University of San Diego and author of The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs), Talent Wants to be Free Why We Should Learn to Love Leaks, Raids and Free-Riding (Yale Press), and You Don’t Own Me (Norton).

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Sometimes, the only constant is change. This New Year is no different.

In 2023, we saw several developments in labor and employment law, including federal and state court decisions, regulations, and administrative agency guidance decided, enacted, or issued. This article will summarize five proposed rules and guidance issued by the Department of Labor ("DOL"), the National Labor Relations Board ("NLRB"), the  United States Equal Employment Opportunity Commission  ("EEOC"), and the  Occupational Safety and Health Administration  ("OSHA"), which will or may be enacted in 2024. 

DOL's Proposed Rule to Update the Minimum Salary Threshold for Overtime Exemptions

In 2023, the DOL announced a Notice of Proposed Rulemaking ("NPRM") recommending significant changes to overtime and minimum wage exemptions. Key changes include:

• Raising the minimum salary threshold:  increasing the minimum weekly salary for exempt executive, administrative, and professional employees from $684 to $1,059, impacting millions of workers;
• Higher Highly Compensated Employee (HCE) compensation threshold:  increasing the total annual compensation requirement for the highly compensated employee exemption from $107,432 to $143,988; and
• Automatic updates:  automatically updating earning thresholds every three years.

These proposed changes aim to expand overtime protections for more employees and update salaries to reflect current earnings data. The public comment period closed in November 2023, so brace yourselves for a final rule in the near future. For more information:  https://www.federalregister.gov/documents/2023/09/08/2023-19032/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and

DOL's Proposed Rule on Independent Contractor Classification under the Fair Labor Standards Act

The long-awaited new independent contractor rule under the Fair Labor Standards Act ("FLSA") may soon be on the horizon. The DOL proposed a new rule in 2022 on how to determine who is an employee or independent contractor under the FLSA. The new rule will replace the 2021 rule, which gives greater weight to two factors (nature and degree of control over work and opportunity for profit or loss), with a multifactor approach that does not elevate any one factor. The DOL intends this new rule to reduce the misclassification of employees as independent contractors and provide greater clarity to employers who engage (or wish to engage) with individuals who are in business for themselves.

The DOL is currently finalizing its independent contractor rule. It submitted a draft final rule to the Office of Management and Budget (OMB) for review in late 2023. While an exact date remains unknown, the final rule is likely to be announced in 2024. More information about the rule can be found here:  https://www.federalregister.gov/documents/2022/10/13/2022-21454/employee-or-independent-contractor-classification-under-the-fair-labor-standards-act

NLRB's Joint-Employer Standard

The NLRB has revamped its joint-employer standard under the National Labor Relations Act ("NLRA"). The NLRB replaced the 2020 standard for determining joint-employer status under the NLRA with a new rule that will likely lead to more joint-employer findings. Under the new standard, two or more entities may be considered joint employers of a group of employees if each entity: (1) has an employment relationship with the employees and (2) has the authority to control one or more of the employees' essential terms and conditions of employment. The NLRB has defined "essential terms and conditions of employment" as:

• Wages, benefits, and other compensation;
• Hours of work and scheduling;
• The assignment of duties to be performed;
• The supervision of the performance of duties;
• Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
• The tenure of employment, including hiring and discharge; and
• Working conditions related to the safety and health of employees.

The new rule further clarifies that joint-employer status can be based on indirect control or reserved control that has never been exercised. This is a major departure from the 2020 rule, which required that joint employers have "substantial direct and immediate control" over essential terms and conditions of employment.

The new standard will take effect on February 26, 2024, and will not apply to cases filed before the effective date. For more information on the final rule:  https://www.federalregister.gov/documents/2023/10/27/2023-23573/standard-for-determining-joint-employer-status

EEOC's Proposed Enforcement Guidance on Harassment

A fresh year brings fresh guidance! On October 2023, the EEOC published a notice of Proposed Enforcement Guidance on Harassment in the Workplace. The EEOC has not updated its enforcement guidance on workplace harassment since 1999. The updated proposed guidance explains the legal standards for harassment and employer liability applicable to claims of harassment. If finalized, the guidance will supersede several older documents:

• Compliance ManualSection 615:   Harassment  (1987); 
• Policy Guidance on Current Issues of Sexual Harassment (1990);
• Policy Guidance on Employer Liability under Title VII for Sexual Favoritism  (1990); 
• Enforcement Guidance on Harris v. Forklift Sys., Inc.  (1994); and 
• Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).

The EEOC accepted public comments through November 2023. After reviewing the public comments, the EEOC will decide whether to finalize the enforcement guidance. While not law itself, the enforcement guidance, if finalized, can be cited in court. For more information about the proposed guidance:  https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace

OSHA's Proposed Rule to Amend Its Representatives of Employers and Employees Regulation

Be prepared to see changes in OSHA on-site inspections. Specifically, OSHA may reshape its Representatives of Employers and Employees regulation. In August 2023, OSHA published an NPRM titled "Worker Walkaround Representative Designation Process." The NPRM proposes to allow employees to authorize an employee or a non-employee third party as their representative to accompany an OSHA Compliance Safety and Health Officer ("CSHO") during a workplace inspection, provided the CSHO determines the third party is reasonably necessary to conduct the inspection. This change aims to increase employee participation during walkaround inspections. OSHA accepted public comments through November 2023. A final rule will likely be published in 2024.

For more information about the proposed rule to amend the Representatives of Employers and Employees regulation:  https://www.federalregister.gov/documents/2023/08/30/2023-18695/worker-walkaround-representative-designation-process

Preparing for 2024

While 2023 proved to be a dynamic year for Labor and Employment law, 2024 could be either transformative or stagnant. Some of the proposed regulations mentioned above could turn into final rules, causing significant changes in employment law. On the other hand, given that 2024 is an election year, some of these proposed regulations could lose priority and wither on the vine. Either way, employers should stay informed of these ever-changing issues.

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Supreme Court declines to hear challenge to Maryland ban on rifles known as assault weapons

FILE - Supreme Court is seen on Capitol Hill in Washington, April 25, 2024. The Supreme Court has declined, for now, to hear a challenge to a Maryland law banning certain semi-automatic firearms commonly referred to as assault weapons. The court did not elaborate on the denial, as is typical. It would have been unusual for the justices to take up a case at this point, since a lower court is still weighing it. (AP Photo/J. Scott Applewhite)

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WASHINGTON (AP) — The Supreme Court on Monday declined, for now, to hear a challenge to a Maryland law banning certain semi-automatic firearms commonly referred to as assault weapons.

The court did not elaborate on the denial, as is typical. It would have been unusual for the justices to take up a case at this point, since a lower court is still weighing it. The Supreme Court is also considering an appeal over a similar law in Illinois. It did not act Monday on that case, which could be another avenue to take up the issue.

The Maryland plaintiffs, including gun rights groups, argued that semi-automatic weapons like the AR-15 are among the most popular firearms in the country and banning them runs afoul of the Second Amendment, especially after a landmark Supreme Court decision expanding gun rights in 2022. That ruling changed the test for evaluating whether gun laws are constitutional and has upended gun laws around the country.

Maryland’s attorney general pointed to mass shootings carried out using the weapons. The state argued they can be banned because they are “highly dangerous, military-style” weapons.

The law has a history before the Supreme Court: The justices declined to hear another challenge in 2017 , before the solidification of its current conservative majority. Five years later, though, the high court’s current roster of justices ordered lower courts to take another look at the measure after handing down the 2022 ruling.

The 4th Circuit Court of Appeals is still weighing the case, and Maryland argued the lower court should be able to issue a decision before an potential Supreme Court action. The plaintiffs, though, said the appeals court has taken too long, including an unusual move removing it from a three-judge panel and instead putting the case before the full circuit court.

Maryland passed the sweeping gun-control measure after the Sandy Hook Elementary School massacre that killed 20 children and six adults in Connecticut in 2012. It bans dozens of firearms commonly known as assault weapons and puts a 10-round limit on gun magazines.

Ten states and the District of Columbia now have laws often called assault weapons bans, according to the gun-control group Brady, which tracks the legislation.

Georgian parliament passes 'foreign agent' bill, prompting US anger, new protests

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Exclusive: Western aid to Ukraine too slow, risks from U.S. election limited, Zelenskiy says

Western allies are taking too long to make key decisions on military support for Ukraine, President Volodymyr Zelenskiy told Reuters in an exclusive interview in Kyiv on Monday.

Phoenix councilmember's effort to alter Civilian Review Board rules may violate state law

Corrections & Clarifications: Danee Garone's last name was misspelled in a previous version of the article.

A Phoenix City Council member discussed making changes to police oversight board rules with a majority of councilmembers during one-on-one conversations outside of a public meeting, in potential violation of Arizona's Open Meeting Law.

Councilwoman Kesha Hodge Washington spoke individually with Vice Mayor Debra Stark and Councilmembers Jim Waring, Betty Guardado, Kevin Robinson and Carlos Galindo-Elvira about changes she eventually would ask the City Council to approve related to qualifications and conduct for Civilian Review Board members. The board is tasked with reviewing Phoenix Police Department investigations related to use of force.

Hodge Washington drafted a proposal, met with individual council members to discuss it, then submitted a final, altered proposal to the city clerk. The City Council was slated to vote on her proposal May 15.

State law mandates that discussions among a majority of City Council members about collective actions should be deliberated publicly in an open meeting. This rule applies whether the majority met in person, virtually or communicate through email. It also applies whether they met all at once, or if one person met with the majority in one-on-ones.

The idea is that the public should be able to hear how their elected leaders are deliberating and deciding issues. The state attorney general's handbook on Open Meeting Law says public officials should "refrain from ... actions that may appear to remove discussions and decisions from public view."

Danee Garone, a senior staff attorney at the Arizona Ombudsman's office, said if a council member "is pitching a particular change to the ordinance, I think there is a solid argument they are violating the open meeting law."

There could be more leeway, Garone said, if the conversation was "simply gauging interest in potentially amending the ordinance in some to-be-decided way."

Attorney Tim LaSota had a similar reaction: A council member can have general conversations, even with a quorum, but that conversation can't include details and a decision cannot be made.

A slideshow explainer of Open Meeting Law on the city's website states that polling other members for opinions on issues is banned, as is "communication among members of the Body on current or potential action items" and "separate or serial discussions with a majority of the members of the body on a potential action item."

Why Hodge Washington says she shared her proposal

Hodge Washington told The Arizona Republic she shared her proposal with council members to provide clarity and explain her rationale for why she wanted the council to reconsider the ordinance.

The City Council codified the Civilian Review Board in a controversial vote earlier this month. The vote included last-minute changes to rules about who qualified to serve on the board — rules which four councilmembers, including Hodge Washington, believed lacked public input.

The councilwoman said at the meeting she would file a request to force the City Council to reconsider the rules, which then led to her draft proposal and conversations with council peers.

Catch up: Phoenix to vote on eligibility change for police Civilian Review Board

Hodge Washington said she does not believe she violated Open Meeting Law because she "limited" her conversations and viewed them as no different than staff briefing individual council members. City staff regularly brief individual council members and their staffs on items scheduled for votes.

Hodge Washington added that she was not trying to secure a particular outcome and does not know how her council peers will vote on her proposal May 15.

She added that she did not want her reconsideration request to be futile. If she did something wrong, she said, it was not her intent.

But a review of Hodge Washington's final proposal compared with her initial draft, obtained by The Republic, shows multiple adjustments were made, and at least one change aligned with feedback she received.

She initially proposed narrowing the ban on individuals who've filed a claim or litigation against Phoenix police from serving on the board to five years. Stark told The Republic she asked Hodge Washington to consider 10 years. The final proposal suggested 10.

In the initial draft, Hodge Washington proposed allowing former police officers who worked outside of Arizona to serve on the board and restricting eligibility to residents of Phoenix, as opposed to those who work or reside in Phoenix. Those changes didn't make the final draft.

Did council members think of the Open Meeting Law?

None of the council members who answered questions from The Republic said they were concerned about Open Meeting Law violations.

Stark told The Republic she did not believe any Open Meeting Law violation occurred because the proposal wasn't on the agenda at the time.

Guardado said the conversation was about a topic that already had been publicly discussed, and that nothing had been decided.

Galindo-Elvira also said he wasn't asked to make a decision and didn't make a decision.

Waring and Robinson said they hadn't spoken to a quorum and didn't ask or know who else Hodge Washington was speaking to.

If Hodge Washington's conversations violated state law, it's unclear whether solely Hodge Washington or all the council members would be in violation.

"It might be that all members who realize that the conversation will be shared amongst a quorum and still participate are violating the Open Meeting Law," said Garone, from the Ombudsman's office.

He added, "Whether an issue is or has been on a meeting agenda is irrelevant in determining whether private discussions constitute Open Meeting Law violations."

Accusations of Open Meeting Law violations are investigated by the state attorney general and county attorneys. Penalties for violating Open Meeting Law include civil fines: $500 for a second violation and up to $2,500 for two or more violations. Other remedies sometimes include additional training for public officials.

Mayor Kate Gallego and Councilmembers Ann O'Brien and Laura Pastor did not respond to interview requests and written questions. O'Brien's chief of staff said O'Brien did not receive any written drafts from Hodge Washington.

Taylor Seely covers Phoenix for The Arizona Republic / azcentral.com. Reach her at [email protected] or by phone at 480-476-6116.