Abstract not available

When a musical opens on Broadway, what aspects of the production are covered by copyright’s protection of “dramatic works”? The script clearly is (although policing infringement is nigh impossible), but courts have yet to address whether the work of the director or designers should be afforded copyright protections. Nonetheless, within the close-knit professional New York theater community, rarely

In considering the value of the judicial takings doctrine, this Comment argues that we should look to a new area of law: procedure. Courts often have the authority to set procedure, and they use this authority for substantive ends. This Comment argues that applying the Takings Clause to procedure demonstrates the value of the judicial takings doctrine. It argues that the Takings Clause, rather than

As climate change threatens coastal areas with more frequent and intense flooding, the federal government has adopted a greater focus on mitigating the effects of natural disasters. While neighborhoods differ in terms of physical risk exposure, they also differ in social vulnerability—the characteristics that influence a community’s ability to safely weather a storm, withstand disruptions to employment

The Constitution’s promises of freedom of speech and common defense can, at times, be at odds. One acute example of that tension is the prepublication review process, by which the government reviews written works by certain current and former employees to ensure that they do not contain classified or other sensitive information. While this process surely has its merits in preserving national security

Abstract not available

Abstract not available

Abstract not available

Abstract not available

Rethinking Police Expertise reveals how litigators can use police officers’ assertions of expertise against them. This Response questions the value, however, of urging judges to treat police expertise as a “professional technology” as opposed to a “professional virtue.” Insisting on this conceptual distinction may weaken the article’s considerable normative potential.  

Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative law’s empire.  

Judicial reasoning about police expertise has toggled between two distinct conceptions of expertise itself: as a professional virtue or a professional technology. Taking stock of both views offers new strategies in a range of disputes about police misconduct. It also illuminates debates about expertise and deference beyond the criminal law.    

Data practices of powerful technology companies are aimed primarily at deriving population-level, relational insights, not individual insights specific to a data subject. To apprehend and adjudicate among the supra-individual legal interests that result from data relations necessitates far more public and collective (i.e., democratic) forms of governing data production.  

Judicial review of the Federal Reserve is uncommon. But this may soon change: a Court skeptical of administrative governance is poised to collide with an increasingly interventionist Fed. This Note argues that any path forward must take seriously the Fed’s role in our economic system while acknowledging its democratic deficiencies.   

The Foreign Intelligence Surveillance Court’s ex parte, in camera proceedings are in tension with the Article III values of transparency and adversarialism. This Note assesses the limited participation of outside amici curiae at the court and proposes a special advocate to serve as a permanent, independent adversary to the government.

The American Rescue Plan Act temporarily altered refundable tax credits in 2021 to include previously excluded families and workers. These changes protect millions of households from being pushed into poverty by taxes. This Essay argues that Congress should build on these reforms to make refundable tax credits more protective.

This Essay considers the lessons of the American Rescue Plan for design of the safety net, using unemployment insurance as a case study. It shows why UI failed and how to fix it, including how to provide benefits to part-time workers.  

Our current approach to state debt overcorrects for the problem that states might borrow too much. We can do better and aspects of the federal response to the pandemic illustrate how. The federal government should make forgiveable low-cost loans available to the states, but within limits to prevent moral hazard. 

Supervisory bodies can intervene in organizational practices that may harm society, but their effectiveness to do so depends on their ability to make decisions reflectively and decisively. Are these tendencies incompatible with each other or can they go together? Can empowering leadership (i.e. participative, coaching, informing behaviors) stimulate reflectiveness and decisiveness? A 10-item Joint

In Tanzin v. Tanvir,[footnote-short-crop]141 S. Ct. 486 (2020)[/footnote-short-crop]. the U.S. Supreme Court held that plaintiffs suing under the Religious Freedom Restoration Act of 1993[footnote-short-crop]42 U.S.C. §§ 2000bb to 2000bb-4, invalidated in part by City of Boerne v. Flores, 521 U.S.…

As trade wars and protectionism again present severe challenges and obstructions to international economic regulatory organizations (IEROs), it is timely to ask how their predecessors survived the last deep deglobalization of the interwar years. This article presents a fresh neo-Durkheimian institutional explanation. It highlights contrasting pathways to survival and bequest of IEROs in three fields

Texas’s patently unconstitutional Senate Bill 8, which effectively bans abortions and assigns enforcement to private individuals, has forced the question whether states can insulate their laws from pre-enforcement review. This piece offers a roadmap for the Court to hold that states may not engage in such procedural trickery.  

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic cliché of the unregulated public square and commit to the hard work of designing for democracy.  

Privacy protections play a vital role in disrupting surveillance-caused subordination and should be at the forefront of efforts to reform digital and physical public space. Robust privacy protections empower marginalized groups to safely participate, while increasing heterogeneity within the public sphere and enabling the healthy contestation of ideas. 

Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.

The U.S. Occupational Safety and Health Administration establishes incentives for safety by setting and enforcing regulatory standards. Using four and a half decades of inspection data, this article provides a comprehensive analysis of the factors underpinning penalties following fatalities. The “fatality premium” for regulatory violations following a worker death is quite modest and is several orders

Work Health and Safety Inspectors are at the forefront of efforts to protect workers from harm from psychosocial hazards, yet the application of regulatory theory to their practice has been limited. Drawing on models of responsive regulation and strategic enforcement, we analyze extensive (N = 46,348) complaint and incident notification data from an Australian Work Health and Safety Inspectorate, to

For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. It then contends that constitutional doctrine should be reconstructed

Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic

InTrump v. VanceandTrump v. Mazars, the Supreme Court applied very different standards for subpoenas issued for the personal papers of the president, making it easier for a grand jury to acquire such materials than a congressional committee. The two opinions, both authored by Chief Justice Roberts, have been widely praised for suggesting that the president is not wholly above the law; indeed, they

When local government policies cause households and communities to become homeless, those affected are entitled to due process. Yet when the government displaces households through zoning-induced gentrification, it often acts as the perpetrator of the harm, adjudicator of disputes, and favored party on appeal. Regardless of the merits of such disputes, that process raises prohibitive access-to-justice

The pandemic revealed that the increasing complexity of debtors’ capital structure could supply much-needed competition in the Chapter 11 financing market, as other inside lenders increasingly challenge a debtor’s favored inside lenders. After discussing the benefits of this surprising development, the Essay identifies several impediments and offers strategies for removing them.  

The COVID induced debt spike on corporate balance sheets portends a wave of future bankruptcy cases. Congress should act now to build up a bankruptcy infrastructure by requiring that every circuit create a “business bankruptcy panel” designed to administer the Chapter 11 filing of large companies. Recent Delaware caselaw would likely enforce a corporation’s precommitment to file in one of these venues

To assist small businesses in the wake of an exogenous shock, Congress should consider implementing a system of lending that models the financing provided to small business debtors in a bankruptcy proceeding. Such a system would be more targeted, effective, and fair than traditional government loans, but less stigmatizing than bankruptcy.  

The intersection of major crises and financial distress generates no shortage of stock stories. This Essay offers one more: how shocks can be used opportunistically in big Chapter 11 cases to unravel bankruptcy law, and to shift the system further away from the objective of responding to overindebtedness.  

The law-and-economics literature assumes that omnisciently rational “sophisticated parties” write optimal contracts, making bankruptcy law unnecessary. Two case studies, J. Crew and Nine West, illustrate the limitations of this idealized model. We argue for a theory of debt contracting based in bounded rationality that recognizes bankruptcy’s inherent complexity.

Democracy can take root anywhere, from community gardens to the most toxic workplace environments. It’s planted whenever people treat one another as political equals, allowing everyone in the community, or demos, to share in exercising power, or kratos.[footnote-short-crop]Paul Cartledge,…

Introduction Corporations have long posed conceptual difficulties in a variety of doctrinal contexts. From the first cases involving corporate claims for protection under the U.S. Constitution, to early recognitions of corporate criminal liability a century later,[footnote-short-crop]N.Y. Cent. & Hudson River…

In September 2005, John Roberts was confirmed as Chief Justice of the Supreme Court.[footnote-short-crop]Judicial Nominations – Chief Justice John G. Roberts, Jr., The White House, https://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/roberts.html [https://perma.cc/J6YW-6UR6].[/footnote-short-crop] The Chief Justice’s ascendancy marked a concerted effort to promote…