Issue Archives

Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the of­fense. The immigration bureaucracy’s implementation of the INA, how­ever, involves a spectrum of penalties short of deportation. Using tools such as administrative...

THE RIGHT TO CONTEST AI

Margot E. Kaminski* & Jennifer M. Urban**

Artificial intelligence (AI) is increasingly used to make important deci­sions, from university admissions selections to loan determina­tions to the distribution of COVID-19 vaccines. These uses of AI raise a host of con­cerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues in­stead—or re­ally,...

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome “obsolescence”—the persistence of rules that only solve yesterday’s contracting problems? Until the early twentieth cen­tury, contract law was largely created by common law courts. The law’s default rules were efficient when created, and courts updated them as commerce changed....

State and federal courts routinely cast state legislatures in the role of democratic hero. Recent events illustrate: Some states have embraced the nondelegation doctrine, striking down governors’ pandemic responses based on the theory that those weighty choices belong to the legislature. During the 2020 election, federal judges invoked an “independent state legislature” doctrine to question voting rights measures from state execu­tive actors...

BANKS AND CLIMATE GOVERNANCE

Sarah E. Light & Christina P. Skinner*

Major banks in the United States and globally have begun to assert an active role in the transition to a low-carbon economy and the reduction of climate risk through private environmental and climate governance. This Essay situates these actions within historical and economic contexts: It explains how the legal foundations of banks’ sense of social purpose intersect with their economic incentives to finance major structural tran­sitions in society....

As U.S. competition authorities ponder whether age-old antitrust laws should be modernized to apply to tech giants, a first-order question is: What existing antitrust laws apply to their conduct? A formerly formida­ble tool that has been defanged through lax enforcement is the Robinson–Patman Act (RPA). Passed by Congress in 1936, the RPA was drafted in response to a growing public concern that large chain stores were squeezing out small businesses....

The COVID-19 pandemic has laid bare the severe public health dan­ger that institutional and congregate care settings pose to people with dis­abilities, older adults, and the care professionals who work in those settings. While the populations residing in congregate care settings are naturally more susceptible to the virus, the COVID-19 crisis in these set­tings could have been far more limited if there had been broader access to home and community-based...

The COVID-19 pandemic has triggered an unprecedented increase in unilateral lawmaking by governors under each state’s emergency exec­utive power statute. These actions have been met with controversy and a significant amount of resistance. This Note argues that the resistance to COVID-19 rules in the United States may be partially attributable to the way state emergency power statutes concentrate virtually all the power to enact emergency rules...

Race and medicine scholarship is beset by a conundrum. On one hand, some racial justice scholars and advocates frame the harms that racial minorities experience through a medical lens. Poverty and home­lessness are social determinants of health that medical frameworks should account for. Racism itself is a public health threat. On the other hand, other scholars treat medicine with skepticism. Medical frameworks, they argue, will reify racially...

As immigration courts work through never-ending dockets and as detention centers operate beyond capacity, scholars and advocates have raised questions about the effects of pretrial immigration detention on outcomes for noncitizens. While pretrial detention is studied frequently in the criminal context, few empirical studies have addressed the consequences of pretrial immigration detention in particular. To help fill this gap in the literature,...