The law of redistricting is built on the assumption that tradeoffs among line-drawing criteria are pervasive. This view helps explain crucial elements of partisan gerrymandering, racial vote dilution, and racial gerrymandering doctrine. This Article is the first to rigorously analyze the existence and extent of redistricting tradeoffs. The Article relies on ensembles of billions of district maps generated randomly by cutting-edge computer algorithms....
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There is a gap in mootness doctrine that allows defendants to strategically “moot” their way out of class litigation. Before a class is certified, a defendant can resolve the named plaintiff’s individual claim and then argue there is nothing left to litigate. This tactic, often referred to as “picking off” or “buying off” the plaintiff, can kill a class action before it begins, leaving systemic misconduct unchallenged and the broader...
The over $250 billion video game industry, the largest entertainment industry in the world, has rapidly developed unregulated monetary systems. Gaming companies issue what this Article terms “gaming money”—points earned in play, gift cards, and platform-stored balances—and increasingly enable conversion of these instruments into bank deposits at scale. Although they adopt many of the features of “money,” they evade existing regulatory...
The harmful effects of climate change have already arrived in cities and states across America, with disasters increasing markedly in recent years along with more gradual environmental changes like sea-level rise and drought. To protect populations and natural resources, significant funding will be necessary for preventative measures as well as disaster response.
At present, it is states and ordinary taxpayers who must shoulder the enormous...
Police departments nationwide train their officers to assume that a member of the community is armed using the “characteristics of an armed person” (CAP) framework. This framework, composed of multiple characteristics that ostensibly allow police to determine whether a person is carrying a handgun, has become a pseudoscientific justification for stop-and-frisk.
The CAP framework is a form of proactive policing: patrolling to find potential...
Native Americans pay taxes. Territories, by contrast, tax in place of the federal government. Both live with the legacy of American imperialism. Both seek the elusive fiscal self-governance and autonomy promised by Congress. The Supreme Court—through preemption, the plenary power doctrine, and interpretive principles—has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By...
Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance...
The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability...
Suspensions, expulsions, and school-based arrests: These exclusionary and overly punitive disciplinary responses disproportionately impact Black students and have become normalized throughout the nation. In reality, school pushout, or the disciplinary sanction of removing students from the classroom, contravenes the very purpose of public education to prepare children to engage as full citizens in our democratic republic.
This Article attributes...
Antitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite...