For decades, antitrust enforcers ignored employer power in labor markets, adopting neoclassical assumptions that labor markets are competitive. Despite fanfare regarding recent labor antitrust enforcement, enforcers still deploy neoclassical assumptions and methods, targeting only proven deviations from a presumed competitive baseline, or infracompetitive wages and working conditions. The New Labor Antitrust deduces harms only from reduced competition...
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The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality...
Should individual tax data be public or confidential? Within the United States, secrecy has been the rule since the Tax Reform Act of 1976. But at three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made individual tax records open for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all mandate significant transparency for individual tax information.
This...
For over a century, the federal government has wielded the immigration subpoena power in darkness, forcing private individuals, subfederal governments, and others to help it detain and deport. This vast administrative power has remained opaque even to those who receive these subpoenas and invisible to those it affects most. Indeed, the very people targeted by these subpoenas often don’t know they exist, much less how they facilitate arrest and...
Women are becoming increasingly disempowered in reproductive choice just as new technologies offer scientists and clinicians more power and discretion in selecting the types of children to bring into the world. As these phenomena converge, a gap in antidiscrimination law has emerged. Fertility clinic practitioners are free to refuse the transfer of embryos based on disability-related animus. Mothers unable to prove coverage under the Americans...
The Antiterrorism Act (ATA) enables injured parties to sue “any person who aids and abets, by knowingly providing substantial assistance, . . . an act of international terrorism [committed by a designated foreign terrorist organization].” In the Supreme Court’s 2023 Twitter, Inc. v. Taamneh decision, the Justices considered the elements of a secondary liability claim under the ATA. While ultimately resolving the case based on the...
U.S. legislators are taking aim at technology companies for their role in the nation’s fentanyl crisis. Members of Congress recently introduced the Cooper Davis Act, which would require electronic communications service providers to report evidence of illicit fentanyl, methamphetamine, and counterfeit drug crimes on their platforms to the Drug Enforcement Administration. For the first time, such companies would be obligated to report suspected...
Police departments often adopt new surveillance technologies that make mistakes, produce unintended effects, or harbor unforeseen problems. Sometimes the police try a new surveillance technology and later abandon it due to a lack of success, community resistance, or both. Critics have identified many problems with these tools: racial bias, privacy violations, opacity, secrecy, and undue corporate influence, to name a few. A different framework...
Most jurisdictions that permit expungement draw the line at certain crimes—usually those implicating one or more victims, serious risks to public safety, corruption, or breach of the public trust. This is unsurprising given how these crimes relate to the moral underpinnings of the criminal law in a democratic society. This Essay explores, given the overall direction of expungement reform, whether expungement should reach more offenses and by...
The visa application process is laden with discretion and reinforced by consular nonreviewability—an extensive form of judicial deference. Until recently, courts recognized a small exception to consular nonreviewability. Under this exception, courts engaged in limited review of a consular officer’s decision when visa denials implicated the fundamental rights of U.S. citizens.
The Court curtailed this exception in United States Department...