Issue Archives

In early 2018, North Korea’s Supreme Leader Kim Jong-un and U.S. President Donald Trump were not on the best of terms, publicly lash­ing out at each other and threatening the destruction of the other’s state. And yet, within the year they were smiling and handshaking in Singapore, followed not long after by a second summit in Vietnam. These summits, focused on the prospect of North Korea’s denuclearization, have in fact raised important...

DEFENSE LAWMAKING

Amanda Chuzi*

As James Madison famously wrote, the power of the purse is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” But the Constitution does not outline specific procedures for how Congress should use that weapon. Over time, Congress has developed a set of norms—the two-step authori­zation-appropriations process—to effectively execute its power under the Appropriations Clause....

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...

Companies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control by recapital­izing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting stock dividend that would empower minority shareholders to block a merger it perceived...

THE INTERNATIONAL LAW ORIGINS OF AMERICAN FEDERALISM

Anthony J. Bellia Jr.* & Bradford R. Clark**

Courts and commentators have long struggled to reconcile promi­nent federalism doctrines with the text of the Constitution. These doc­trines include state sovereign immunity, the anticommandeering doc­trine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in...

Introduction In September 2017, the Supreme Court granted certiorari in Ortiz v. United States, a case challenging the appointment of a military judge. The case, which had come to the Court on appeal from the Court of Appeals for the Armed Forces (CAAF), was quickly complicated by an amicus brief arguing that the Court lacked […]

On September 30, 2019, California Governor Gavin Newsom signed into law Senate Bill 206, otherwise known as “The Fair Pay to Play Act.” When it goes into effect, the Fair Pay to Play Act will allow student-athletes enrolled in California colleges and universities to be compensated for the use of their name, images, and likenesses […]

After years of stagnation, pay equity law is gaining spectacular momentum. In the past three years, over a dozen states have passed important new legislation with numerous other bills pending before the federal, state, and local legislatures and a rising number of class action suits underway. This Article, the first to study the emerging ecology of pay equity law, argues that the underlying logic of these reforms is to structurally change the ways...

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...

ACTINGS

Anne Joseph O’Connell*

Temporary leaders in federal agencies—commonly known as “actings”—are a fixture of the modern administrative state. These acting officials have recently come under fire, particularly after President Trump ousted Jeff Sessions and installed Matthew Whitaker as acting Attorney General in November 2018. Yet despite their ubiquity and the fervent criticism we know almost nothing about them.

This Article examines open questions about...