How do ordinary people understand the concept of consent? This Article documents that laypersons, unlike most legal theorists, believe consent is compatible with fraud. It uses this discovery to revisit the so-called “riddle of rape-by-deception” and to interrogate the relationship between public attitudes, normative theory, and law.
Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, our domestic governments use written instruments to formally coordinate their activities. This Article analyzes these distinctive contract-like instruments in which both parties are governments and the mutual objective is public governance.
This Feature documents the creation of the Facebook Oversight Board, an independent external body that provides appellate review of Facebook’s content-moderation decisions and policy recommendations. Should the Oversight Board gain legitimacy, it has tremendous precedential potential for democratizing private platforms’ governance of global online speech.
Presidents-elect and presidential transition teams wield exceptional power, from nominating cabinet secretaries to drafting policies that often become law. This Note argues that, despite these powers, presidential transitions are essentially ungoverned. It highlights the governance and ethical risks created by lawless transitions and offers several solutions to resolve them.
This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community entitled to self-governance.
Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while contributing to deadly delays.
Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an important national-security issue.
Even as the United States has become the world’s leading producer of oil and gas, U.S. oil and gas governance has changed drastically. States have amended statutes, applied existing laws, and modified common law doctrine to move beyond a once-unilateral focus on maximizing production and address environmental and social concerns.
When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but consonant with the goals of disability law and advocacy.
What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.
Drawing on various forms of business law, this Article argues that misconduct in the marketplace can wrong other market actors even though those actors did not have a right against the misconduct. This argument challenges traditional philosophical and legal assumptions about rights and accountability.
This Essay proposes a blueprint for a new humane and effective immigration-enforcement system that could follow the dissolution of ICE. It explores the irredeemable defects of ICE and its enforcement paradigm and suggests realistic mechanisms to increase compliance with immigration laws without detention or mass deportation.
As the first bill introduced in the current Congress, H.R. 1 seeks to revamp our democracy through sweeping electoral reforms. This Collection critiques small-donor-based public financing, argues for legislation mandating Election Day registration, and defends H.R. 1’s constitutionality based on Congress’s broad authority to regulate federal elections.
This Essay presents the first comprehensive survey examining whether Bristol-Myers Squibb Co. v. Superior Court significantly limits multistate class actions in federal courts. It finds, contrary to many commenters, that a large supermajority of cases reject the argument that BMS’s constraints apply with respect to unnamed plaintiff class members.