Essay

The property–information interface is perhaps the most crucial and undertheorized dimension of property law. Information about pro­perty can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Con­versely, a dearth of information can significantly reduce the benefits associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage...

This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.

Existing debates are either conceptual or normative: They focus ei­ther on the nature of interpretation and authority, or on originalism’s abil­ity to serve other values, like predictability, democracy, or general wel­fare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what...

Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these discussions has grown increasingly grim, as many political scientists argue that a constitutional system of divided and shared powers hardens current levels of partisan warfare into legislative gridlock. Proposals for reform abound. Scholars and political commentators have called for modifications to the electoral...

The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. continues to obsess academics and courts alike. Despite all the attention, however, the “Chevron revolution” never quite happens. This decision, though seen as trans­formatively important, is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty. This Essay seeks both...

In recent years, most would associate “intent skepticism” with the rise of modern textualism. In fact, however, many diverse approaches—legal realism, modern pragmatism, Dworkinian constructivism, and even Legal Process purposivism—all build on the common theme that a complex, multimember body such as Congress lacks any subjective intention about the kind of dif

As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.

Equal protection’s current use of identity as proxy leads to a number of problems, including...

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution...