The federal government employs over 2 million civilian workers, all but a few thousand of whom enjoy forms of tenure and insulation from presidential control. This bureaucracy, sometimes called "the administrative state," is organized in a many-layered structure defined by statutes and regulations. Pursuant to law and court decisions, the administrative state routinely makes findings of fact, policy determinations, and conclusions of law, sometimes independent of the president. The Supreme Court's recent decision in United States v. Arthrex risks unsettling this arrangement. It adopts a simplistic, hierarchical vision of bureaucratic organization, which is frankly incompatible with existing statutes and regulations. This Article proceeds on the theory that, nevertheless, the Court did not intend to overthrow the government. It offers alternative readings of Arthrex Arthrex-narrow and broad-to show how the case undermines the existing law of agency design. It then shows how a middle road could reconcile presidentialism with the Constitution, statutory law, and bureaucracy, enabling the Court to advance presidential administration without abandoning traditional principles of administrative law. This alternative reads Arthrex through the lens of Myers v. United States and its foundational distinction between politics and administration. The approach should be congenial to presidentialists, for whom Myers remains a touchstone. And it offers a principled way to distinguish cases where the president may exercise control of the bureaucracy to realize policy goals from those where the law may appropriately limit the president to mere supervision in the name of good administration. We sound a note of caution, however: Without care, Arthrex's theory of presidentialism could be far more transformative of the administrative state than many, including perhaps the Justices, are aware.
This Essay details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the law is while supplying a backstop against agency overreach.
Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring? This Article documents an emerging practice that has dominated the second Trump administration's approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing strength from a kind of casuistry, practitioners of legalistic noncompliance deploy an array of specious legal arguments and legalisms in an attempt to conceal what is actually widespread resistance to judicial oversight. In addition to identifying legalistic noncompliance as an emerging phenomenon, this Article explores its logic and analyzes some of its dangers. This Article suggests that legalistic noncompliance lowers the public salience of noncompliance while, at the same time, signaling to both judges and officials in the executive branch that the administration is not complying with court orders. That dynamic, in turn, could lay the groundwork for outright noncompliance or legalized noncompliance- where courts craft rules that allow judges themselves to say that the administration is complying with court orders when, in reality, the administration is doing little to nothing to carry out a court's ruling. This Article does not purport to establish a standard for when courts should reject legalistic noncompliance by calling it out as a form of noncompliance. The politics of the moment, more than anything else, may determine if they do. This Article instead aims to surface the developing practice and explore its costs, which have thus far escaped full consideration.
This Essay examines the fundamental tension between originalism and cost-benefit analysis-the two dominant methodologies shaping modern, public law decision-making. Originalism, currently triumphant, prioritizes historical meaning and textual fidelity. It operates in stark contrast to cost-benefit analysis, the byword of the administrative state since 1982, which focuses on the future and efficiency. Descriptively, the two methodologies are irreconcilable. Nor is it possible to pair them by claiming they serve different purposes; originalism and cost-benefit analysis conflict when assessing agency design, constitutional rights, and judicial review of administrative action. As regulatory policymaking continues to rely on empirical and economic assessments, originalism's influence in public law will face increasing pressure to adapt or retreat.
Copyright law is unusual. Unlike virtually every other area of U.S. law, the Copyright Act allows people to change their minds and unilaterally cancel otherwise valid contracts. Thirty-five years after transferring or licensing their copyrights to others, authors-or their heirs-can terminate the grant for any reason, and the copyright reverts to its original owners. These termination of transfer provisions aren't just unusual as a matter of law generally; they are also atypical for copyright law. While most of copyright law is justified on the grounds that it improves social welfare, these provisions are explicitly based on redistributive concerns-giving poorly situated authors a second bite at the apple. Unsurprisingly, copyright's termination of transfer provisions have generated considerable scholarly attention, most of which is highly critical. But the criticisms of copyright's reversion rights are largely grounded on empirically testable claims about how they operate-who uses them and for what purposes? This Article begins to answer those empirical questions through the development of a novel dataset of every termination of transfer notice from 1978, when the law took effect, until 2021. Our dataset, which includes over 150,000 terminations, suggests that these laws likely aren't achieving their redistributive goals. Only a small percentage of eligible transfers are terminated, and most terminations involve highly successful authors who are made even wealthier. After addressing the descriptive and normative questions raised by prior scholars, we offer a range of potential solutions that Congress could adopt, each with its own costs and benefits. Ideally, revisions to termination provisions would not only address Congress's redistributive concerns but also prevent publishers, studios, and platforms from suppressing content that they license but do not exploit. Our preferred solution would impose a costly screen on these firms to discourage socially harmful content suppression and return copyrights to authors who may more effectively redistribute their own works.
The Supreme Court's turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article takes as a given that history is now part ofjudges'work. It then invites judges to think more expansively about the type of history they could-and perhaps should-be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians. This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of past perceptions and experiences, drawn from diaries, letters, oral histories, and other types of testimonials. Professional historians highly value such sources, even though they require caution, because they often provide glimpses of the past that are missing from more formal or "official" documentary records. In doing so, they enrich and sometimes even transform our answers to important historical research questions. Courts, by contrast, tend to resist these sources, even when they might be relevant to the historical inquiry at hand. This Article illustrates such resistance via examples from the realms of disability and reproductive rights, both of which currently receive weak constitutional protection. The Article closes by underscoring that, when judges engage in historical interpretation, they are not simply making law; they are also making history, upon which other courts and the broader public may rely. This reality implies responsibility. Judges could lean into that responsibility by bringing a critical eye to the traditional "high law" historical sources that are most readily available and by shepherding into the record voices and perspectives that enrich our collective understanding of the American past.
When the Supreme Court eliminated a federal constitutional right to abortion in Dobbs v. Jackson, it relied in significant part on the notion that abortion is an issue best left to the political process. Abortion has since become a main character in the national political conversation, with state legislatures around the United States embracing a wave of abortion-related legislation. The shifting landscape of abortion rights is not limited to the legislative process; voters are increasingly relying on state constitutional amendments to replace the protections previously provided by the federal Constitution. Political actors point to these amendments, typically enacted through a form of direct democracy, as the Court's democracy premise in action. But democracy is notoriously imperfect at reflecting the will of the majority. Although it is true that voters in some states are voting directly on the abortion issue, millions of others are not-blocked by legal impossibility, legislative hostility, or some combination thereof. Drawing on opinion polling about abortion rights and unpacking the legal and political barriers to state constitutional amendments, this Note explores the extent to which those amendments offer a realistic political tool for voters to effectuate their abortion regulation preferences in the wake ofDobbs.
From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as "facts to study, not convictions to demonstrate about," in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there's very little agreement, or even analysis, about what renders this factual assertion-tradition-true or false. This Article tackles that basic issue. Part I surveys the ways in which courts use tradition in different constitutional and interpretive modalities. Part II explores the instrumental reasons courts and other lawmakers resort to tradition. Part III supplies the basic definitional parameters of a more fact-bound, empirical notion of tradition. At the very least, tradition-in any non-rhetorical form-has a phenomenological, demographic, and temporal component. This observation may seem trivial, but the simplicity of these parameters disguises significant complexity about what phenomenon to code, among what demographic, and over what duration. Part IV discusses the implications of adopting a definition of tradition along the lines explored here and outlines procedural devices to apply this more rigorous notion of tradition. The Article concludes by explaining the benefits of a more empirically grounded notion of tradition, even if the factual truth of a tradition cannot itself dictate a normative conclusion.
The Supreme Court in New York State Rifle & Pistol Association v. Bruen introduced a history-and-tradition test for Second Amendment challenges, directing courts to compare modern firearm regulations to past ones. To conduct this historical inquiry, litigants and judges have increasingly turned to professional historians as expert witnesses. This Note qualitatively examines how historian experts are used and received in post-Gruen federal litigation. It finds that a small group of repeat players- sixteen historians-make up this emerging field, typically appearing exclusively for either challengers or governments. These historians serve primarily in civil litigation, leaving a relative expertise gap in criminal cases, and they are often asked to produce rushed historical research for preliminary motions. The Note further identifies two competing judicial conceptions of the historian expert's role. Some judges treat historian experts as archivists who merely identify past laws, while others treat them as analysts who interpret those laws within their broader context. This Note advocates for the latter approach: Treating historian experts first and foremost as analysts allows courts to practice better law and better history.
The distinction between facial and as-applied challenges continues to play a central role in constitutional litigation, including at the Supreme Court. Yet, the distinction and its related rules have long suffered from a lack of doctrinal clarity and consistency. This Note sets out a descriptive taxonomy of three problems facing constitutional litigants because of the murkiness surrounding the facial/as-applied distinction. First, the "Doctrinal-Test Problem" refers to the fact that many constitutional doctrines appear to require the courts to engage in facial adjudication, even if a litigant wishes to bring an as-applied claim. Thus, as-applied litigants are forced into facial challenges, even where a facial challenge has no hope of success. Second, the "Factual-Scope Problem" refers to uncertainty regarding the breadth of factual pleading needed to succeed in a facial or as-applied challenge. For instance, facial claimants may be required to make arguments about the total factual scope of a challenged statute, despite the conceptual difficulty of anticipating the statute's full reach. Conversely, courts might hold plaintiffs to a facial standard merely because they have broadly introduced facts, even if plaintiffs intend to raise only as-applied claims. Finally, the "Jurisdictional Problem" arises when a court's jurisdiction is tied to the facial/as-applied distinction. When this occurs, the question ofa court'sjurisdiction becomes particularly difficult for litigants to evaluate because of the ambiguity of the facial/as-applied distinction. This Note illustrates these three problems primarily through the discussion of recent transgender rights cases in which the facial/as-applied distinction has proven decisive. By recognizing and reckoning with these problems, courts and policymakers will be better positioned to offer doctrinal clarity regarding the facial/as-applied distinction. Additionally, this Note's taxonomy helps litigants assess how to frame their constitutional claims, including at the pleadings and discovery stages of litigation.
Since 2018, state legalization of sports betting and the industry's corresponding proliferation has driven an epidemic of youth addiction. Current state legislation and regulations do little to combat youth addiction. Many legal scholars emphasize the value that a federal regulatory regime would provide to reign in youth sports betting. This Note explores the value that state and local government can have in the sports gambling space. To illustrate the unique importance of state and local legislation and regulation of sports betting, this Note analogizes to another addictive product with a history of youth addiction: nicotine. Nicotine has been a regulatory target of states and localities for decades. By investigating the analogous histories of the nicotine and sports betting industries, this Note highlights three main advantages to allowing states and localities to regulate an addictive product: speed, proximity to constituents, and the ability to experiment with policy innovation. At bottom, this Note asserts that regardless of the prospect of federal sports betting legislation, state and local governments must remain empowered to legislate and regulate sports betting.
The U.S. government has long surveilled immigrant communities by collecting identifying information, including biometric data. The passage of the DNA Fingerprint Act of2005 expanded the possible sources of data to include DNA. In 2020, the Trump administration seized on the permissive language of the statute to require that DNA be collected from nearly every noncitizen detained by the federal government. Now, 2.6 million noncitizens and counting have their DNA permanently stored by the federal government. This expansive surveillance program operates despite the Fourth Amendment's promise of protection because of the exceptionalism of both DNA searches and the border in contemporary Fourth Amendment jurisprudence. However, even if a constitutional violation could be established, noncitizens lack a meaningful legal remedy.
Modern biotechnology has transformed the human placenta from medical waste into a lucrative commercial resource. Placental tissue is used across industries-from cosmetics touting antiaging effects to pharmaceuticals employing it as a raw material for wound therapies. Yet while hospitals and biotechnology companies profit from this growing placenta economy, the women from whom the placentas originate receive neither compensation nor complete information. Federal law provides little guidance, and most states lack explicit regulations, producing a legal vacuum that allows stakeholders to exploit ambiguity. For-profit companies routinely frame their placenta procurement as altruistic donation rather than commercial exchange, citing federal law to justify nonpayment. Although placentas function as temporary organs inside the womb, this Note contends that the placenta's characteristics align it more closely with other lawful markets in biological materials such as plasma and gametes than with organs that federal law forbids from sale or compensated transfer. Unlike those vital organs, placentas are naturally and necessarily expelled from the body during childbirth. Because the law already permits compensation for analogous body products such as plasma and gametes, placentas should receive equivalent treatment as legitimate objects of market exchange for which donors may lawfully receive compensation. To remedy this inequitable framework, this Note proposes amending the National Organ Transplant Act to expressly exclude placentas from its scope. Such a reform would align federal law with the realities of the modern bioeconomy and affirm women's rightful stake in the economic value of the materials their bodies produce-formalizing the placenta's legal and economic transformation from afterbirth to asset.
Worker misclassification is one of the most pervasive and harmful civil justice problems in the U.S. The inaccurate and illegal categorization of workers as independent contractors costs U.S. workers billions of dollars annually in overtime pay and health benefits-a problem that has become even more pervasive with the expansion of the gig economy. Yet, worker misclassification is only one dimension of the broader "access to justice crisis" in the United States-the unsolved legal problems and unmet legal needs that touch most people's lives and livelihoods at many points, but especially impact low-income people and people of color. These legal issues range from consumer overbilling and insurance disputes to unsafe housing conditions and benefits denials. And just like worker misclassification, the onus for redress of these problems usually falls to the people experiencing them. For decades, legal scholars assumed that the main cause of the access to justice crisis was a deficit of affordable lawyers. In more recent years, that hypothesis has been disproven, and a chief barrier turns out to be the simple fact that people do not think about most common legal problems as "legal" in nature. The next step, then, can seem obvious: raise legal awareness. Indeed, "know-your-rights" campaigns and legal self-help tools are predicated on the assumption that knowledge leads to power. But is legal knowledge enough to spur legal action? To test this crucial question, we leverage an original, nationally representative dataset of over three thousand people living in the U.S. We use the context of worker misclassification to experimentally test how legal knowledge shapes the actions that people say they would take to solve a problem. We find that although legal knowledge increases legal action, its effects are limited: Even when they knew they had been treated illegally, only one in four respondents would consider pursuing legal help. Yet legal knowledge also catalyzes problem-solving in an unexpected way: It empowers people to consider more varied solutions to their own misclassification. Specifically, legal knowledge reduces two key cognitive and affective barriers to action: self-blame and futility. We explain these findings' implications for ending worker misclassification and helping solve the access to justice crisis.
Strategic lawsuits against public participation (SLAPPs) pose a serious threat to free expression, often targeting journalists and media outlets to intimidate or silence critical reporting. Many states have adopted anti-SLAPP statutes that provide procedural protections for speech to deter meritless, speech-chilling suits. But not all states have such laws, resulting in a patchwork of uneven speech protections across the United States. Even where such laws exist, SLAPP plaintiffs can often evade them by forum-shopping or removing to federal court, where state anti-SLAPP provisions do not always apply. In the absence of a federal anti-SLAPP law, journalists across the country remain vulnerable to costly litigation that can chill democratically vital speech. A uniform federal solution is needed-yet if crafted too broadly, a federal anti-SLAPP law could inadvertently shield even intentionally false or malicious speech, undermining legitimate defamation remedies and public accountability. This Note argues that Congress should enact a federal anti-SLAPP statute anchored in a "good-faith journalism" standard to strike the proper balance. Good-faith journalism means speech that a reasonable person would believe is a direct presentation of facts or a description of events produced through deliberate action to report in accordance with established journalistic professional and ethical standards. By conditioning anti-SLAPP protections on good-faith journalism, this tailored approach navigates First Amendment constraints on speech regulations and ensures that such a federal anti-SLAPP law neither overprotects low-value falsehoods nor under-protects valuable, factual reporting. A federal anti-SLAPP law built on good-faith journalism would fortify freedom of expression by safeguarding the press's essential role in democracy, while preserving accountability by denying special protection to those who flout journalistic integrity through intentional or reckless falsehoods.
Any case heard in a United States federal court must adhere to a set of rules-or rather, a few different sets of rules. Regardless of the subject matter of the suit, the parties (and the judge) must follow the relevant Federal Rules. But that is not all. Parties bringing the case must also comply with local rules-those important rules that govern litigation in the space between and around the Federal Rules. These district-and circuit-specific rules govern highly consequential aspects of federal litigation, such as how cases will be assigned to judges, how those cases will then be managed, and whether final decisions will be public and precedential. One would think, as with the Federal Rules, that the process by which such rules are made is well studied. Yet little is known about the process of making local rules, even by the judiciary itself. This Article is a comprehensive study of local rulemaking in federal district and appellate courts. It includes a first-of-its-kind empirical examination of the rulemaking structure of all ninety-four district and thirteen circuit courts. And it synthesizes qualitative data derived from interviews of fifty rulemakers, including judges, attorneys, and clerks of court. This thick description permits analysis of how local rulemaking processes vary from court to court and vary from the well-studied federal rulemaking process. Putting this information together also permits a more normative and prescriptive analysis. We focus on the values that both Congress and the federal rulemakers have identified in rulemaking: procedural regularity, transparency, public participation, and information sharing. We show where local rulemaking falls short on these dimensions, and we conclude by offering ways to address such shortcomings-ways that reflect the dynamic system of national, local, and individual judge rulemaking that we document throughout. Ultimately, we hope to improve the process by which local rules are made, and, with it, the rules governing litigation going forward.
In Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these immunities inhibit criminal indictment or conviction of the president, and indeed the criminal prosecution of a substantial number of subordinate officials, across many imaginable fact-patterns. The Court justified its interventions on consequentialist, and not originalist or precedential, grounds. But its analysis of immunity's actual and likely effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual's incentives and behavior to the wider institutional contexts of the executive branch or to the partisan-political environment of electoral competition more generally. Yet presidents inevitably move in, and profoundly shape, both the bureaucratic and the political domain. What, then, are the spillover effects of presidential immunity? Correcting for the opinion's myopic focus, this Article develops a more comprehensive, consequentialist analysis of presidential immunity's impact on the democratic constitutional order in light of institutional dynamics. To this end, it draws upon political-science and game-theoretical models to isolate a series of "structural logics" of presidential action. These structural logics are multistep causal pathways by which a constitutional rule can reshape not just presidents' behavior, but the incentives and actions of both executive-branch and elected officials. Such logics operate without regard to who inhabits the Oval Office at a given moment-rendering the ensuing account general, rather than specific to a given office holder. They are thus durable tendencies of institutional action. This wider structural accounting of presidential immunity suggests that the Court's ruling does not meaningfully advance the principal good identified by the majority-that is, an energetic executive branch as a whole-and may indeed have a perverse side-effect of inhibiting presidential policymaking capacity. On the other side of the ledger, immunity severely compounds risks of fiscal corruption and criminal partisan entrenchment in both the Oval Office and across the larger executive branch. This Article's comprehensive accounting aims first to suggest the analytic utility of a structural-logic lens as a general matter for evaluating public-law questions, but more narrowly intimates that the Court's conception of presidential immunity may land a significant, self-inflicted blow upon democratic ordering.
It is black-letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, the Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and tradition tests, the transformation of equality doctrines, and the embrace of formalist rules to govern constitutional law. This Article provides a complete and interconnected critique of the numerous doctrinal transformations that together comprise the larger constitutional revolution of ending means-end scrutiny. It tracks how this upheaval now touches nearly every fundamental right and important federal power-but not in exactly the same way. Rather, the Court has tailored the end of means-end scrutiny to benefit the same subset of authorities, rights, and groups. In particular, the end of means-end scrutiny has reoriented the landscape of constitutional law to weaken federal authority, strengthen protection for libertarian as opposed to egalitarian rights, and benefit private power and dominant political, economic, and social groups. The upshot of this patterned end of means-end scrutiny is a foundational change not just to the prevailing methodology of constitutional adjudication but also to the very nature of constitutional rights and judicial review. By eliminating consideration of governmental means and ends from the construction of rights, the Court has crafted a new form of judicial review that is court-centric, formalist, and dominance-reinforcing. The Article tracks and critiques this doctrinal and theoretical transformation, connecting it to the most salient debates in constitutional law today and exposing the deep and troubling consequences of the seismic-and yet largely silent-collapse of means-end scrutiny.
