Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives. That decision, City of Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.
Category: Commentaries
The 14th Circuit
2025 will mark the fifteenth anniversary of Professor Stephen Legomsky’s landmark article proposing “radical surgery” on American immigration adjudication. Professor Legomsky argued for creating an Article III Court of Appeals for Immigration (CAI), replacing both the Justice Department’s Board of Immigration Appeals (BIA) and the immigration jurisdiction of the regional circuit courts. For Professor Legomsky, his restructuring would: (1) reduce
Grading Patents
In this Article, we offer a new design for our patent system with a view to optimize its functioning. As multiple patent scholars have recognized, the root cause of the ills of our patent system is the high rate of low-quality patents. Extant patent law employs a binary screening process, under which inventions either qualify for protection or fail.
What’s Left of the Suspension Clause After Jones v. Hendrix?
In 2000, Marcus DeAngelo Jones was convicted of two counts of unlawful possession of a firearm. As a convicted felon, Jones was prohibited from possessing a firearm under federal law. Yet Jones mistakenly believed that his felony convictions had been expunged and that he was able to purchase and possess a gun. He had cleared two background checks, one run
Consequential Damages Clauses: Alien Vomit Or Intelligent Design?
Hadley v. Baxendale, 9 Exch. 341 (1854), is an old British case commonly taught in first-year contracts classes. The case sets out a limitation on recoverable damages and introduces students to the concept of default rules and bargains around them. Defaults provide a serviceable off-the-rack option, but sophisticated parties in commercial transactions will contract around the default because they want
Another Consequential Damages Redux: A Response to “Consequential Damages Clauses: Alien Vomit or Intelligent Design?”
In “Consequential Damages Clauses: Alien Vomit or Intelligent Design,” Professors Choi and Gulati (and their cast of co-authors) have produced an interesting piece examining, and attempting to explain, how and why one particular clause common in M&A agreements, the “Excluded Loss” provision, has evolved. Their findings are intriguing and generally consistent with my own anecdotal conclusions as someone who has
Standing Orders: A Survey of Individual Judges’ Regulation of Practice in All Future Cases Before Them
Federal district courts, after notice-and-comment process, can issue local rules to govern practice and procedure in all cases in a judicial district. An individual district judge can also regulate practice in cases assigned to that judge. Sometimes, a judge-specific regulation of practice issues for a particular case only. But a judge can also adopt a “standing” regulation of practice—one
When Jurisdiction Stripping Raises Factual Questions
Courts apply a strong presumption in favor of judicial review of government action. When they apply that presumption, they silently presume that they can determine, as a matter of law, whether such judicial review exists. In fact, however, whether judicial review exists may present a factual question.
Consider a catch-22 at the center of immigration jurisdiction doctrine: for certain due
The Consent of the Governed: Resistance as Constituent Power
The legal status of resistance to tyranny as a universal human right has received little attention in recent years. Following the conclusion of World War II and the de-escalation of Cold War hostilities, it seemed to many that liberal democracies had won; a global wave of democratization saw more states adopting constitutions with provisions for judicial independence, the separation of …
Arbitrating Corruption
One of the most controversial issues in international investment law is how arbitral panels should deal with investments tainted by corruption at their inception. The current practice of investment arbitrators is to refuse to hear investors’ claims when bribery allegations are substantiated. A recent wave of scholarship has attacked this “corruption defense,” arguing that the practice unfairly harms investors and …
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