Disapproval of Quick-Look Approval: Antitrust after NCAA v. Alston

Abstract In its most recent antitrust opinion, National Collegiate Athletic Association v. Alston (2021), the Supreme Court condemned the NCAA’s policy against compensating student athletes as a violation of the Sherman Act. Although perceived as a pro-plaintiff antitrust decision, the Court’s opinion is anything but. While granting a victory to the plaintiffs at hand, theContinue reading “Disapproval of Quick-Look Approval: Antitrust after NCAA v. Alston”

Content Under Pressure

Abstract The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain acceptable acrossContinue reading “Content Under Pressure”

Dynamic Pricing Algorithms, Consumer Harm, and Regulatory Response

Abstract Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose areContinue reading “Dynamic Pricing Algorithms, Consumer Harm, and Regulatory Response”

Litigating Authority for the FDA

Abstract The Food and Drug Administration (FDA), like most federal agencies, is a captive client. Its “lawyer,” the Department of Justice (DOJ), ultimately decides whether and when to sue. When FDA goes to court, a DOJ lawyer decides what arguments to make, and whether to appeal if they lose. But Congress could, and perhaps should,Continue reading “Litigating Authority for the FDA”

The Paradox of Same-Sex Parentage Equality

Abstract There is a general scholarly consensus that the law of parental determination should conform to the principles of equality. But the precise meaning of equality itself remains contested in the era of assisted reproductive technology. Increasingly, legal scholars argue that the commitment to equality requires the law to be untethered from its biology-centric focusContinue reading “The Paradox of Same-Sex Parentage Equality”

Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this doesContinue reading Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity

Working Through Menopause

There are over thirty million people ages forty-four to fifty-five in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers will inevitably experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic becauseContinue reading Working Through Menopause

Regional Immigration Enforcement

Regional disparities in immigration enforcement have existed for decades, yet they remain largely overlooked in immigration law scholarship. This Article theorizes that bottom-up pressure from states and localities, combined with top-down pressures and policies established by the President, produce these regional disparities in enforcement. The Article then provides an empirical analysis demonstrating enormous variations inContinue reading Regional Immigration Enforcement

What Litigators Can Teach the Patent Office About Pharmaceutical Patents

Pharmaceutical patents listed in the FDA’s “Orange Book” are some of the most valuable patents in the world. Accordingly, for this valuable subset of patents, it is paramount that the Patent & Trademark Office (PTO) correctly issue valid patents and preclude invalid patents from issuing. In this paper, we study what happens to those patentsContinue reading “What Litigators Can Teach the Patent Office About Pharmaceutical Patents”

New Innovation Models in Medical AI

ABSTRACT In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those that resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those related to quality improvement andContinue reading “New Innovation Models in Medical AI”