Most state and federal employment discrimination statutes prohibit employers from making certain decisions “because of” an employee’s protected characteristics or activities. Courts interpreting this language have developed a number of frameworks and standards to assess whether a plaintiff has demonstrated the causation required to make out a claim of employment discrimination. Two standards frequently invoked by courts are but-for causation...

Like police officers patrolling the streets for crime, the front lines for most large business regulators—Environmental Protection Agency engi­neers, Consumer Financial Protection Bureau examiners, and Nuclear Regulatory Commission inspectors, among others—decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police...

Foreign patrimony laws nationalize ownership of cultural property found within a nation’s borders and prohibit export or private owner­ship. They are enforceable in the United States under the McClain doc­trine. In defending against McClain-doctrine suits to repatriate stolen cul­tural property, defendants have begun to assert the “inactivity defense,” which is premised on the theory that enforcing certain patri­mony...

While income inequality has become an increasingly central focus of public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but also by more hidden and pernicious background rules that systematically disadvantage and subordinate certain constituencies. This Essay focuses on a particularly crucial—and often underappreciated—site for the construction and contestation of...

The False Claims Act (FCA) is the primary statute used by the federal government to police fraud in government programs. In addition to providing the government with a means to recover civil penalties and treble damages, the FCA also contains a qui tam provision that allows private citizens—called “relators”—to sue on behalf of the United States and obtain a portion of the judgment. To prevent duplicative relator-filed litigation, Congress—as...

Free speech cannot be progressive. At least it cannot be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even pro­tect progressives...

Any progressive agenda for change will require robust exercise of speech and associational rights that law currently restricts for labor unions. Although the Supreme Court’s conservative First Amendment judicial activism has raised doubts about whether constitutional protection for free speech can serve progressive ends, this Essay identifies a silver lining to the deregulatory use of the First Amendment. The Roberts Court’s extension of heightened...

The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.

The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first-century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation-states...

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a “new Lochner.” This introduction to the Columbia Law Review’s...