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.
In Equal Justice: Fair Legal Systems in an Unfair World, Frederick Wilmot-Smith argues that it is only by deprivatizing markets for legal services that we can ever hope to achieve equal justice. This Book Review explains why his bold prescription is worthy of serious examination and critical debate.
Because bodily liberty is a fundamental right, the government may confine someone only to the extent necessary to further a compelling interest. Courts limit pretrial detention and civil commitment accordingly but exempt criminal sentences without explanation. This Note argues that carceral sentences are likewise unconstitutional unless they satisfy strict scrutiny.
This Note chronicles the Patent Office’s use of guidance to reduce the judicially created uncertainty that surrounds patentable subject matter. It argues that these guidance documents closely resemble legislative rulemaking and thus push the boundaries of the Office’s current authority.
The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.
The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalence and regret.
This Article conducts a systematic investigation of “wandering officers”—law-enforcement officers fired by one department who find work at another agency. It reports on the prevalence, labor mobility, and behavior of these officers. The Article also considers explanations for their continued employment and suggests potential policy reforms.
Current crises of economic inequality and eroding democracy require us to move beyond legal orientations that prioritize efficiency, neutrality, and apolitical governance. This Feature suggests new orientations and questions for scholarship on “law and political economy” that instead foreground realities of power, aspire toward equality, and are committed to democracy.
Current First Amendment doctrine permits courts to judge a claimant’s religious sincerity in a free-exercise suit but prohibits them from adjudicating religious questions. This Note challenges that understanding by explaining and evaluating how courts treat Muslim prisoner accommodation claims in practice.
Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two separate castes among federal district-court judges.
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.