Category: Articles

Criminal procedure reform can be understood as a “second-best” enterprise. The general theory of second best applies where an ingredient necessary for a “first-best” ordering is unattainable. That’s an apt description of the contemporary criminal process. Our normative ideals of criminal justice require fair and frequent trials to judge guilt or innocence, but the criminal…

In its recent ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, the U.S. Supreme Court took an extraordinary step in a remarkably facile way. For the first time in its history, the Court ruled that the United States Constitution requires states under certain circumstances to provide taxpayer funds to churches and other houses…

Discussions of sexual misconduct often focus primarily or exclusively on the parties directly involved in sexual behavior. As a result, the discussion generally centers on consent. While consent is critically important, this Article instead focuses on harms to third parties resulting from sexual behavior—regardless of whether that behavior is consensual. Doing so reveals a dynamic…

Identity harm refers to the anguish experienced by consumers who learn that their efforts to consume in line with their personal values have been undermined by a company’s false or exaggerated promises about its wares. When broken, other-regarding “virtuous promises” about products (e.g., eco-friendly, responsible, fair-trade, cruelty free, conflict free) give rise to identity harm…

The puzzle of why the cycle of poverty persists and upward socioeconomic mobility is so difficult has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article…

It is a bedrock principle of patent law that an inventor need not understand how or why an invention works. The patent statute simply requires that the inventor explain how to make and use the invention. But explaining how to make and use something without understanding how or why it works yields patents with uninformative…

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on…

This paper presents an intertemporal model of short-termism. Critics have portrayed short-termism in broad brushstrokes as the bane of corporate governance. But short-termism does not have a self-evident, efficiency-based normative value. A simple application of a well-accepted asset valuation theory shows that short-termism is not per se inefficient. If profitable enough, a short-term strategy would…

The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as litigants, including states…

Immigration scholarship has begun to explore the prominence of shadow removals—deportations that are executed by front-line agency officials acting outside the presence of an immigration judge—which now constitute the majority of all reported removals. This Article explores two of the most common forms of shadow removals, expedited removal and reinstatement of removal, and the collision…