Across the post-Dobbs United States, reports ofpregnant people battling infections as severe as sepsis,1 experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news.2 Even in states like California, which has some of the nation's strongest abortion protections, some hospitals are still denying pregnant patients the emergency abortion care they so desperately need.3 Because of state abortion bans' lack of clarity about medical exceptions and the overall chilling effect on abortion care, many patients are being denied the emergency care that they need or are being forced to wait until they are knocking on death's door before medical staff can treat them. Some patients are being airlifted to out-of-state hospitals for treatment elsewhere, and many who are forced to wait until their health deteriorates are taking matters into their own hands and choosing to travel out-of-state-often at great health risk-if they have the means. Healthcare professionals who work in states with criminal abortion bans face an impossible scenario that scholars have termed the "double abortion bind": the impossible choice between, on the one hand, providing patients with emergency lifesaving abortions and facing potential criminal liability for violating their state's abortion ban and, on the other hand, not providing emergency abortions and potentially losing their patients and facing medical malpractice claims for violating the standard of care. Litigators nationwide are fighting in state courts to clarify the medical exceptions in abortion bans. While legal scholars have explored criminal liability and the various implications of criminal abortion bans for patients and medical professionals, the civil liability component including that of medical malpractice lawsuits remains murkier, in part due to a dearth of such cases. But as more and more patients suffer and die while waiting for emergency medical care or are denied such care altogether, civil cases are beginning to emerge. This Note asks what role tort claims specifically, medical malpractice suits can play in the area of emergency abortion access. Can torts realistically provide useful legal recourse for impacted patients and apply new pressure on healthcare industry actors to widen emergency abortion access? This Note analyzes whether such claims could be used to pressure hospital systems into broadening emergency access to lifesaving abortion care and sketches one potential path forward.
Across the United States, immigrants held in for-profit detention centers participate, willingly or through degrees of coercion, in a work program that pays one dollar per day. For decades, the courts affirmed the legality of this practice and swiftly dismissed claims that participants in the program qualified for worker protections. But in the past decade, litigators, advocates, and academics have partnered with detained workers to successfully challenge the legality of these labor schemes, most recently scoring a unanimous victory at the Supreme Court. This Note outlines the various causes of action to claim workers' rights in private immigration detention, particularly the under-researched but successful state law claims. Drawing on lessons learned from litigation across the country, this Note identifies obstacles to and opportunities for ending the exploitation of detained workers.
This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a "trader in chief" that circumvent the Constitution's allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation's implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress's control over foreign commerce is exclusive and that Congress's control over commerce trumps the President's general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design. These issues came to a head in the Supreme Court's recent decision in Learning Resources v. Trump, which, in accordance with this Article's analysis, held that the power to impose tariffs is exclusively congressional. But divisions among the justices, and the Trump administration's swift reimposition of tariffs and threats to embargo commerce with allies like Spain as a substitute for tariffs, set the table for further fights about the relationship between the President's constitutional power and the broader regulation offoreign commerce. This Article provides the necessary historical and legal framework to restore the foreign commerce power to its constitutional home in those coming battles.
To comply with the colorblind impulses of American antidiscrimination law, computer programmers tend to exclude race as a data input when constructing a machine learning algorithm. Yet scholars and advocates consistently argue that even these formally race-blind algorithms can racially discriminate by relying on socalled "proxies for race," or variables that have a strong correlation with race, such as zip code, income, or prior criminal arrest. While a programmer wishing to respond to this argument might attempt to remove both race and all racial proxies from input data, their task is complicated by a key dilemma: The definition of a racial proxy is far from obvious. In response to this dilemma, scholars, computer programmers, and advocates have proffered various approaches to defining a racial proxy and solutions to the problem of racial proxy discrimination. Diverse as they are in their methodologies, these solutions share a common quality. Each relies on an underlying assumption about the relationship between race and the racial proxy, and these assumptions can have far-reaching implications for the development and regulation of machine learning algorithms.
This Article provides the first comprehensive account of the reconstruction of energy tax law that has occurred in the 2020s. In the past, federal energy policy offered carrots and sticks aimed selectively at specific sources of emissions (e.g., power plants) and specific green alternatives (e.g., solar and wind), even as academics urged the use of universal sticks like a carbon tax. But Congress has now charted a new path: performance-based carrots, or tax credits for any zero-emission energy technology (subject to certain politically driven exclusions). The only way to implement universal, performance-based carrots is to estimate the carbon intensity of every subsidy applicant. This is the task of carbon accounting. The Article makes two main arguments about the emergence of carbon accounting inside tax law. First, carbon accounting is surprisingly well suited to tax law because it will be informed by tax law's experience with parallel normative and analytical principles, including a comprehensive tax base, additionality, liability shifting, and rate blending. But second, just as the income tax is susceptible to "tax shelters," so too will firms develop "carbon shelters" that qualify for green subsidies while covertly making use of high-emission energy. Because of the difficulty of anticipating every carbon shelter in advance, an antishelter strategy needs deliberately over-broad anti-abuse rules, including some modeled on similar rules from tax law. If policymakers are to avoid inadvertently subsidizing unlimited emissions, they must be prepared to compromise on the principle of technology neutrality that motivates performance-based carrots in the first place.
Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law- from environmental and antitrust law to civil rights and securities law-the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Scholars and originalist judges are, for the first time, seizing on this apparent contradiction to argue that this mode of "private enforcement" may be an unconstitutional delegation of executive power. In TransUnion v. Ramirez, the Supreme Court observed that a "regime where Congress could freely authorize unharmed plaintiffs to sue defendants" would "infringe on the Executive Branch's Article II authority."(1) This, along with invitations by Justices Alito and Thomas, ignited a series of lower court cases and historically grounded critiques of private enforcement. In an emblematic case, Circuit Judge Kevin Newsom drew on TransUnion and other cases to argue that "Article II's vesting of the 'executive Power' in the President ... prevents Congress from empowering private plaintiffs to sue for wrongs done to society."(2) This emerging "Article II Challenge" relies, at its core, on a particular reading of Founding Era history and the original meaning of the Vesting Clause. Challengers argue that the Take Care Clause's command that the President "shall take care that the laws be faithfully executed," combined with Founding Era history, establishes that public rights claims-those seeking civil penalties or enforcement of regulatory violations against society-must be enforced exclusively by the executive branch. If the Supreme Court embraces this argument, hundreds of statutory schemes and thousands of claims will crumble. This Article provides a historical corrective and refutes the emerging Article II Challenge. Our original historical investigation of "penal statutes"-a category of Founding-Era regulatory legislation that anticipated modern private rights of action-uncovers the deep constitutional foundation of this tradition of private enforcement. We offer three key historical contributions. First, we demonstrate that Founding Era lawmakers passed reams of statutes empowering private plaintiffs to sue for wrongs done to society, at both the state and federal levels. Private enforcement of regulatory law was ubiquitous in England, colonial America, and the Early Republic, a broader legal history that originalist proponents of the Article II Challenge have overlooked or misunderstood. Second, we show that post-ratification contemporaries saw no conflict between executive power and private enforcement, even when these suits vindicated public rights. Third, we reveal that the Crown, governors, and presidents could not control private penal statute claims through the writ of nolle prosequi or other mechanisms. We demonstrate this by surfacing a previously neglected 1791 case in which President Washington and Secretary Hamilton concluded that the President could not control civil litigants seeking statutory penalties, even when they proceeded nominally on behalf of the United States. This historical evidence weakens both the Article II Challenge and the "unitary executive" theory because it shows that Congress was free to empower private plaintiffs to execute the law. We then supplement those historical insights with an analysis of contemporary legal doctrines governing executive control over private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions. Our proposed constitutional test would leave most private enforcement schemes untouched. Ultimately, this Article provides a comprehensive historical and doctrinal defense of private enforcement writ large.
Amid the avalanche of recent important administrative law decisions, one case has received almost no scholarly attention: Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case changes the application of the six-year statutory period that used to time bar administrative procedure claims. In part, Corner Post expands judicial review for claims that an agency regulation violates the authorizing statute or the Constitution by allowing such substantive claims indefinitely. Last Term, in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, the Court similarly allowed a substantive claim to proceed despite the sixty-day time limit of the Hobbs Act. Corner Post produces unfortunate collateral damage for procedural claims, including claims that an agency's action violated notice-and-comment requirements or was arbitrary or capricious under the Administrative Procedure Act (APA). Similarly, in McLaughlin, the Court's analysis might allow review of procedural claims, as well as substantive claims, after the expiration of the Hobbs Act time limit. Yet a strong argument-stronger than for substantive claims-favors time barring procedural challenges to old regulations. Congress should implement a six-year time bar for administrative procedure claims that accrues at the time of agency action, so that procedural claims would be allowed only for six years following a rulemaking. Otherwise, a court might invalidate a longstanding regulation because of an agency's years-old violation of procedural requirements, even if the regulation perfectly implements the authorizing statute and is consistent with the Constitution. Allowing procedural claims indefinitely would rest on the far-fetched premise that Congress wants to ensure that regulations promulgated in, say, 1975 are promulgated using all of the procedures required by courts in, say, 2025-even though courts have changed and increased the required procedures dramatically over time. Indefinitely allowing procedural claims would unnecessarily disrupt reliance interests and carry large error and administrative costs because of stale evidence, changing procedural norms, and the expense of replicating procedures at under-resourced agencies.
The doctrinal landscape ofinternet-basedpersonaljurisdiction is increasingly incoherent. Rules designed for a world of print and physical presence struggle to account for the realities of digital communication. Today, anyone-from journalists to ordinary users- can reach a national audience instantly, often without intending to do so. Yet courts have treated virality and even conversational tagging, such as an @-mention of a forum resident, as evidence that a speaker purposefully directed their speech into that state. When speech alone is treated as the jurisdictional contact, nonresident defendants can be haled into distant courts they never expected, and lawful expression is chilled.
In debates about the future of work, scholars and policymakers often treat economic efficiency and distributive justice as the principal values at stake. Those who argue for the end of the employment relationship appeal to economic efficiency. They extend law and economics scholar Ronald Coase's classic theorization of "transaction costs," arguing that technological innovation has dramatically reduced the transaction costs of economic coordination. As a result, they argue, work today can be more efficiently performed through independent contracting and automation than through the institution of employment.
For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim's personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity-that is, making themselves and their information harder to find. This Article exposes privacy law's complicity in this phenomenon of "brokered abuse." Today, victims seeking obscurity can ask data brokers to remove their online information. But a web ofprivacy laws props up a fragmented and opaque system that forces victims to navigate potentially hundreds of distinct opt-out processes, wait months for their information to be removed, and then repeat this process continuously to ensure their information doesn't resurface. The status quo compels victims to manage their own privacy, placing the burden of maintaining obscurity on already overburdened shoulders. In response, this Article proposes a new regulatory regime premised on a transformative reallocation of responsibility. In short, it proposes a techno-legal system that would enable victims to obscure their information across all data brokers with a single request, redistributing the burden away from victims and onto brokers. Such a system is justified, feasible, and constitutional. The data broker industry is eager to assert that it has a First Amendment right to exploit people's data, but this Article develops a trio of arguments to confront this controversial claim of corporate power. By blending theory, policy, and technical design, this Article charts a path toward meaningful privacy protections for victims and, ultimately, a more empathetic legal landscape for those most at risk.
Commercial activities, like selling a car or serving hot coffee, can generate a risk of loss to which multiple individuals are exposed. Likewise, the burdens of avoiding such risks are rarely borne by a single person. When burdens and losses are distributed across multiple stakeholders, when should negligence law tolerate or condemn the risky choice? A famous answer at the center of the first-year curriculum invokes the Hand formula: The failure to avoid a risk is negligent when the sum of the burdens of risk-avoidance is less than the sum of the expected losses. However, it is rarely explained why the sum of burdens and losses ought to be compared when there are other ways of comparing interests. This modest observation can serve as the starting point for reconstructing and reclaiming a fundamental concept ofAmerican tort law.
Professor David Strauss attributes the U.S. Supreme Court’s reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper “victims” of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Strauss worries the jurisprudential approach that emerged from Carolene Products now allows for judicial intervention on behalf of groups loaded with political power. Even then, he insists on the classic liberal defense of the courts: that courts serve as an important if imperfect check against the majoritarian domination of minorities. In this Essay, we identify as critical to such defenses the unstated conjecture that elites are more enlightened than popular majorities—the conjecture that, for all of its limitations, juristocracy is still preferable to “crude” majoritarianism. The corresponding portrayal of ordinary people as relatively bigoted, irresponsible, or ignorant—read: unable to self-govern—animates liberal politics in the United States more broadly. We argue that confidence in the comparatively reactionary character of ordinary, working-class, and poor people in the United States is in no way proportional to the evidence. That confidence reflects less a grounded finding, and more ideology or faith in the need for elite rule. To allow these commitments to go untested is particularly dangerous in the face of the authoritarian politics of hyper-concentrated wealth and power that has become a feature of contemporary life. Such discourse diverts attention from the fundamentally undemocratic nature of the U.S. state and allows governing elites to blame “the people” for problems elites have a disproportionate hand in creating.
Data breach-the improper exposure of consumers' personal information held in corporate databases-costs consumers and businesses hundreds of billions of dollars each year. Despite significant regulatory, legislative, and academic scrutiny of this growing problem, the scale and severity of breaches have rapidly increased over the past two decades. Existing legal tools have proven woefully insufficient at either preventing or redressing the significant harm these breaches inflict. Though change is urgently needed, none of the incremental reforms that have been proposed by scholars and advocates- including changes to contract and tort law, expansions of regulatory authority, and liberalizations of judicial standing doctrine-have gained traction. Other literature has suggested that a problem of this scale requires a more comprehensive approach: the creation of a public insurance program. This Note begins by synthesizing these more ambitious proposals, identifying the specific elements of existing public insurance programs that have proven effective at meeting policy challenges similar to today's data breach epidemic. Specifically, the history of workers' compensation and vaccine injury compensation programs in the United States suggests that no-fault liability, standardized recovery, and responsible-company indemnification could significantly reduce costs and improve substantive outcomes in the data breach landscape. But this Note's most important contribution is to lay out a policy framework for overcoming the intense industry opposition and political paralysis that has consistently derailed data breach reform efforts over the past decade. Converting theoretical data breach reform proposals into legal realities will require meaningfully improving the status quo for all stakeholders, including the data industry itself. With congressional productivity at a historic low, states have increasingly taken the lead in innovative policymaking, and implementing a large-scale public insurance program is therefore likely most feasible at the state level. California, in particular, has an unparalleled history of leadership in privacy policy and consumer protection. Accordingly, this Note proposes authorizing the California Consumer Privacy Agency to establish a public data breach insurance program, charged with (1) stanching the enormous financial losses that data breaches inflict on both businesses and consumers and (2) redirecting currently wasted resources towards fixing the root vulnerabilities that cause these breaches in the first place.
Efforts to ratify the Equal Rights Amendment (ERA) have resurged due to fourth-wave feminism and the #MeToo movement's exposure of widespread sexual harassment and abuse; Women's Marches protesting Donald Trump's 2016 presidential election; and the U.S. Supreme Court's recent gutting of reproductive rights and affirmative action. For the first time in nearly forty years, three new states have ratified the ERA. But there are several reasons to pause and reconsider focusing efforts on ratifying the ERA. Ongoing litigation surrounding states' recent ratification of the amendment shows the legal uncertainties in the procedures for ratifying constitutional amendments and the ERA in particular. More importantly for this Note, the ERA's substance-written and rewritten in the last century-is insufficient to address ongoing inequities, especially for women of color. Advocates should instead concentrate efforts on writing a new amendment constitutionalizing equality aimed at rectifying the constitutional Founding Era's treatment ofpeople of color, women, and other subordinated groups. Beginning anew is both desirable and necessary. As conservative states inch closer to achieving the requisite number of states to call for the United States' first constitutional convention, advocates of women's rights and equality need to be ready with their own vision of a free and equal society. Writing a new constitutional amendment would create a set of twenty-first-century framers whose vision of equality is better informed and equipped to ameliorate ongoing inequities and to remedy severe limits in current constitutional jurisprudence. Instead of being constrained by arcane doctrinal traditions, drafters should write a constitutional amendment that promotes substantive intersectional equality, protects historically subordinated groups, and prohibits intentional and unintentional discrimination by public andprivate actors alike.
This Article employs recent philosophical advances in action theory and moral responsibility to critically examine the traditional hierarchy of the Model Penal Code. It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm ought to be subject to greater criminal liability than actions that foreseeably result in risk of those same harms. This Article questions the soundness of that assumption. It argues that for many criminal offenses-particularly criminal homicide-a reluctant agent who purposefully causes harm to another person (even if deliberate and premeditated) will often nonetheless exhibit more concern for the wellbeing of their victims than a callous agent who acts recklessly, or even negligently, while indifferent to the harm they cause. The Article uses this critical rethinking of the standard mens rea hierarchy to show how we might amend current homicide doctrine (and the PKRN mens rea regime more generally) to allow more criminal liability for nonintentional police homicides like Derek Chauvin's killing of George Floyd, relative to reluctant purposeful defendants.
The federal government has a well-documented history of discrimination against women in American agriculture. And the government now has many compelling reasons-from remedying past discrimination to shoring up food security-to provide targeted support to women farmers. But the Biden Administration's attempts to provide targeted financial support to Black farmers through the American Rescue Plan Act were halted by federal courts that view affirmative action with increasing suspicion, as evidenced by the Supreme Court's 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA). Does the Supreme Court's upending of decades of precedent governing race-based affirmative action in SFFA also spell the end for gender-based programs in agriculture? This Note argues that the federal government can and should retain and expand affirmative action programs for women in agriculture even in the post-SFFA legal landscape. Part I traces the history of women's participation in American agriculture and discusses the benefits associated with such participation from an environmental, public health, and social justice perspective. Part II traces the federal courts' jurisprudence on both race-based and gender-based affirmative action programs and posits that because gender-based programs are subject to a lower level of constitutional scrutiny than race-based programs, they can withstand constitutional scrutiny-even post-SFFA-where their race-based counterparts may not. And Part III suggests various ways for the federal government to design gender-based affirmative action programs in agriculture that are most likely to withstand constitutional scrutiny. Part III also puts forward a series of gender-neutral alternatives that would achieve many of the same goals as gender-based programs without singling them out for benefits in a potentially unconstitutional manner. Although this Note primarily focuses on federal support for women in agriculture, its constitutional arguments are applicable to a variety of gender-based affirmative action programs across economic sectors.
California has a housing crisis. Despite the state government's best efforts to build more homes, local governments and local voters are finding new ways to circumvent those requirements. One such loophole allows California voters to propose non-compliant housing plans through the ballot initiative process or effectively veto their local governments' housing allocation decisions through a referendum. Although voters rarely use this loophole, the California Supreme Court should step in and prevent it from growing in popularity. The court can do so by simply making a small change to a legal test that determines when local initiatives and referenda are preempted by state law.
In 2022, the Biden Administration finalized regulations that overhauled procedures for asylum claims for the first time since 1996. These regulations transferred the duty to decide asylum claims in expedited removal from immigration courts to the Asylum Office. While advocates criticized the proposal for its extreme procedural deficiencies, they supported its basic premise: Expanding the jurisdiction of the Asylum Office would be a positive development for asylum seekers. This Article argues the Asylum Office has failed policymakers' original vision for the asylum system, asylum seekers, and its own asylum officers (AOs) and that any expansion of the office, in its current form, is unwise. In the 1990s, policymakers settled upon the current asylum adjudication system for cost-saving and efficiency reasons. They believed that the Asylum Office would quickly grant meritorious asylum cases and refer frivolous or complicated cases to immigration court for further adjudication. They imagined affirmative grant rates would climb because quick adjudications by AOs and other features of the new system would discourage the filing of frivolous applications. Speedy grants at the Asylum Office would save money by reserving immigration judge (IJ) time for difficult cases. Creating a professional corps of AOs would also increase the quality and consistency of decision-making in the asylum system. This Article argues that each of these important assumptions has not panned out. The Asylum Office fails to grant many meritorious cases: In recent years, Ifs granted asylum to between 76 and 83 percent of asylum seekers whom AOs had referred to removal proceedings. Grant rates across offices continue to deviate significantly, and the startling differences between office grant rates are growing. AOs face extraordinary pressure to adjudicate cases quickly. As a result, AOs are often very confrontational during interviews of asylum seekers, even though regulations require them to be "non-adversarial." Former AOs further admitted to the author that they were more likely to refer an asylum seeker to removal proceedings simply because referring is faster than granting and they are evaluated on the speed at which they adjudicate cases. Given these failures, advocates and scholars should reimagine our affirmative asylum system. This Article begins that reimagination.
