Scholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary—and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas—such as abortion, affirmative action, or gun rights—they face a conundrum: To protect the legitimacy...
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Agency delay has become a chronic issue in administrative law. As Congress increasingly relies on reducing appropriations to implement its agenda, agencies have shouldered the conflicting burdens of meeting preexisting statutory deadlines for agency action, while also adhering to their newly reduced budgets. The result has been delayed agency action across a broad range of policy areas, such as environmental protection, health care, and economic...
Corporations are under pressure to use their outsized power to benefit society, but this advocacy is unlikely to result in meaningful change because corporate law’s incentive structure rewards fiduciaries who maximize shareholder wealth. Therefore, this Essay proposes a way forward that works within the wealth-maximization framework and yet could result in dramatic social change. The idea is simple: Use private debt markets to provide incentives...
“If I can be provocative, shouldn’t this study be done in Africa, where there are no masks, no treatment, no intensive care, a bit like some studies on AIDS or among prostitutes. We try things, because we know they . . . are highly exposed and they don’t protect themselves. What do you think about that?” Jean-Paul Mira, […]
Introduction When a Louisiana state court set Ronald Egana’s bail at $26,000, Egana’s mother and close friend did what hundreds of thousands of arrestees do each year: They sought the services of a commercial bail bondsman. Blair’s Bail Bonds agreed to post Egana’s bail in exchange for a twelve-percent nonrefundable premium, the state-approved rate in […]
Introduction In the landmark decision McGirt v. Oklahoma, the Supreme Court held that the Muscogee (Creek) Nation’s reservation in eastern Oklahoma had never been disestablished by Congress, and it thus remained “Indian country” under federal law for purposes of criminal jurisdiction. This decision also carried the potential to alter the regulatory landscape of Oklahoma in […]
Federal law enforcement’s deployment of malware (Network Investigative Technique, or NIT) raises a jurisdictional question central to remote searches of electronic data: Where does the search occur?
Litigation arising from two prominent NIT searches—Operations Pacifier and Torpedo—illustrates the challenge courts confronted in defining the...
The Supreme Court has made clear that a district court may grant class action certification only after conducting a rigorous analysis to ensure that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been met. Less clear, however, is what exactly a rigorous analysis entails. As precertification scrutiny has become more robust, reliance on expert testimony has become nearly indispensable for obtaining class certification....
Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do...
In trading the preeminent risk-free security, the $21 trillion U.S. Treasury market supports the country’s borrowing needs, financial stability, and investor appetite for a safe asset. Straddling the nexus between a securities market and a systemically essential institution, the Treasury market must function at all costs, even if other markets fail.
This Article shows that Treasury market structure is fragile, weakened by a regulatory...