Essay

THE SOCIAL COST OF CONTRACT

David A. Hoffman* & Cathy Hwang**

When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular con­tracts—such as following through with weddings, conferences, and other large gatherings—will greatly increase the risk of rapidly spreading disease. A close reading of past cases illustrates that when social hazards sharply increase after formation,...

A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s...

DIRECT COLLATERAL REVIEW

Z. Payvand Ahdout*

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review...

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA...

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon. By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students. Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the para­digm crime and...

In an era of declining labor power, police unions stand as a success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite support for unionization on the political left, police unions have become public enemy number one for commentators concerned about race and police violence. Much criti­cism of police unions focuses on their obstructionism and their prioritiza­tion of members’...

In 1858, the United States Attorney General issued an opinion, Invention of a Slave, declaring inventions by African Americans, enslaved and free, unpatentable. Within a few years, legal changes that abolished the law of slavery rendered the opinion obsolete, and it became forgotten, dropped from legal memory. Combining history and Critical Race Theory, this Essay repositions the opinion as a remembered legal story and argues that law’s selective...

THE COST OF NOVELTY

W. Nicholson Price II*

Patent law tries to spur the development of new and better innova­tive technology. But it focuses much more on “new” than “better”—and it turns out that “new” carries real social costs. I argue that patent law promotes innovation that diverges from existing technology, either a little (what I call “differentiating innovation”) or a lot (“exploring innova­tion”), at the expense of innovation that tells us more about existing...

Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private—and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regu­latory and welfare programs proliferated. At other moments, the Market struck back, forcing the State...

THE LAW AND POLITICS OF PRESIDENTIAL TERM LIMIT EVASION

Mila Versteeg,* Timothy Horley,** Anne Meng,*** Mauricio Guim**** & Marilyn Guirguis*****

Since the turn of the millennium, a remarkably large number of incumbent presidents have managed to stay past the end of their consti­tutionally mandated terms. Russia’s Vladimir Putin, Rwanda’s Paul Kagame, and Colombia’s Alvaro Uribe represent a sizeable collection of presidents who were democratically elected but remained in power long past their original mandates. Such attempts to stay in office are not new, but in recent decades their...