This Article offers a comprehensive examination of the Skidmore standard of judicial review as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. The Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. We propose reconceptualizing Skidmore’s sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness across three attitudinal zones. Finally, we note several burgeoning issues concerning the scope of Skidmore’s applicability and offer preliminary thoughts for addressing those questions.

The corporation’s core objective is to further the interests of shareholders. But one judicially crafted exception has long existed. In many jurisdictions around the world, financial distress mandates a shift to a duty to creditors. In May 2007, the Delaware Supreme Court announced a modern law of duty shifting. This Article’s prescription and reasoning break with existing law and critiques. We urge abolition of the doctrines. The result would be a duty to creditors arising upon a formal bankruptcy filing.

A central claim of common law constitutionalism has been that precedent and tradition embody some form of latent wisdom. On this view, judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting their unaided reason. This Essay offers a critical analysis of the mechanisms that are said to generate this latent wisdom.

This Note addresses the exceptions in many states’ rape shield laws that permit the admission of the complainant’s status as a prostitute into evidence. While these laws take various forms, New York’s rape shield law contains a legislated exception to its shield, which allows for the admission of the complainant’s prostitution convictions that have occurred within three years of the alleged rape. Others contain exceptions that permit the admission of prostitution and other sexual history evidence through a judicial determination of relevance or under “consent” and “credibility” rationales that support an inference that complainants with a history of prostitution or unchastity are either more likely to have consented to the alleged rape or are less likely to be veracious witnesses. Not only do these exceptions rely on an antiquated assumption of the sexual propensities of prostitutes, but they also disregard and devalue the occupational hazards of sex work. As a result, they particularly marginalize the claims of prostitutes of color—a group exposed to a disproportionately high risk of sexual violence in the prostitution industry.

Citizens of twenty-four states make law alongside their legislatures by means of the ballot initiative process. In many of these states, constitutional provisions limit the subjects open to the initiative process to insulate certain areas of governance, like taxes and appropriations, from the volatility of direct democracy. Some states have recently adopted or considered subject matter restrictions that lack this pragmatic, nonpartisan rationale. These restrictions seek to close the initiative process to certain political outcomes, signifying a possible trend toward forestalling political change—and shaping state political agendas—by redefining the subject matter bounds of state initiative processes. Litigants have challenged these restrictions on First Amendment grounds, but the circuits have disagreed on the basic question of whether subject matter restrictions implicate the First Amendment at all. This Note argues that subject matter restrictions burden expressive conduct composed of nonspeech and speech elements: respectively, lawmaking and political agenda setting through ballot qualification.