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 across…
Category: Articles
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 are…
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,…
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 focus…
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 does…
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 because…
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 in…
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 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 and…
Ford’s Underlying Controversy
ABSTRACT Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some…
You must be logged in to post a comment.