Uncivil Obedience

By:  Jessica Bulman-Pozen & David E. Pozen

 

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded ...READ MORE

DNA by the Entirety

By:  Natalie Ram

 

The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information ...READ MORE

An Enduring, Evolving Separation of Powers

By: Jon D. Michaels

 

This Article sets forth the theory of an enduring, evolving separation of powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first ...READ MORE

 

Due Process, Class Action Opt Outs, and the Right Not to Sue

By: Ryan C. Williams

 

Over the past three decades, the Supreme Court has repeatedly insisted that due process requires that absent class members be given an opportunity to opt out of a class action seeking predominantly money damages. The Court’s ...READ MORE

Pooling Powers

By:  Daphna Renan

 

By “pooling” legal and other resources allocated to different agencies, the executive creates joint structures capable of ends that no single agency could otherwise achieve. Pooling destabilizes core conceptions of administrative law. According to one influential account, for ...READ MORE

From Contract to Status: Collaboration and the Evolution of Novel Family Relationships

By:  Elizabeth S. Scott & Robert E. Scott

 

The past decade has witnessed dramatic changes in public attitudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer ...READ MORE

 

Timing Brady

By:  Miriam H. Baer

 

Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by ...READ MORE

Private Enforcement’s Pathways: Lessons from Qui Tam Litigation

By:  David Freeman Engstrom

 

How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer ...READ MORE

The Negotiated Structural Constitution

By:  Aziz Z. Huq

 

The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government.  It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action ...READ MORE

 

Taking Images Seriously

By:  Elizabeth G. Porter

 

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts more than 150 billion photos. Courts spend millions on ...READ MORE

Forcings

By:  Lee Anne Fennell

 

Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been ...READ MORE

Dictatorships for Democracy: Takeovers of Financially Failed Cities

By:  Clayton P. Gillette

 

States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally ...READ MORE

 

The Administrative Origins of Modern Civil Liberties Law

By:  Jeremy K. Kessler

 

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, ...READ MORE

Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting

By:   Jarrod Shobe

 

All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition ...READ MORE

Tort Law vs. Privacy

By:  Eugene Volokh

 

Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the ...READ MORE

 

Responsibility for Regime Change

By:  Jay Butler

 

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of ...READ MORE

The FTC and the New Common Law of Privacy

By:  Daniel J. Solove & Woodrow Hartzog

 

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal ...READ MORE

Constitutional Nondefense in the States

By:  Katherine Shaw

 

Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, ...READ MORE

 

Elections and Alignment

By:  Nicholas O. Stephanopoulos

 

Election law doctrine has long been dominated by rights-and-interests balancing: the weighing of the rights burdens imposed by electoral regulations against the state interests that the regulations serve. For the last generation, the election law literature ...READ MORE

Implied Public Rights of Action

By:  Seth Davis

 

This Article analyzes the federal courts’ power to provide public remedies when the legislature has been silent. Like private parties, the United States and the states regularly claim a right to judicial relief or a particular remedy that ...READ MORE