People seeking to vacate their criminal convictions face bleak prospects. The reasons for this are myriad, from deferential standards of review to blanket bans on entire categories of claims. Yet lurking beneath these contributors is another, lesser-studied problem: when petitioners seek post-conviction relief, their cases are often decided by the same judges who presided over their trials or accepted their guilty pleas. That practice-which this Note calls "judge channeling"-is widespread, with most jurisdictions adopting it through either formal rules or informal practices. Proponents argue that judge channeling maximizes judicial economy because the trial judge's familiarity with a case enables more efficient claim resolution. However, a robust body of social science research reveals a devastating trade-off: unconscious biases prevent judges from recognizing their own errors, hobbling petitioners seeking to challenge their convictions and vindicate meritorious claims. Prior scholarship has emphasized normative problems with judge channeling, but the analysis ends there. This Note intervenes in that narrow discourse by making two novel contributions to existing literature. First, it offers the first comprehensive study of state channeling procedures, explaining what they do and how they differ across jurisdictions. Second, this Note lays out alternative procedures that balance independent review with deliberative efficiency, and it considers which institutions are best poised to bring those procedures to life.
Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity. But states vary widely in whether they take federal law up on that offer of exclusion. In one state, you may never lose the right to vote for a felony conviction; in another, you might be disenfranchised for life. Existing literature has explored many facets of disenfranchisement, from analyzing its impacts to proposing reforms. But it has largely overlooked the key role of state constitutions in limiting disenfranchisement. Unlike the U.S. Constitution, which has no explicit voting rights guarantee, state constitutions both affirmatively grant the right to vote and list explicit, enumerated exceptions to that right. But state actors routinely overstep those bounds-a practice this Article refers to as "disenfranchisement creep." Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this Article identifies two primary ways in which state actors disenfranchise people beyond the scope of state constitutions. First, state actors explicitly disenfranchise groups of people beyond what the constitutional texts seemingly allow. This Article newly identifies this phenomenon as de jure disenfranchisement creep. Second, state actors impose myriad burdens, large and small, that effectively disenfranchise those who supposedly have the right to vote. This Article newly explores this de facto disenfranchisement creep through the lens of state constitutions, concluding that it often violates existing voting rights guarantees. In identifying both types of overreaches, this Article offers an underexplored approach to reining in disenfranchisement: state constitutional claims in state court.
In earlier work, I discussed historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts. The framework that I described revolved around two distinctions: (1) the difference between "public rights" (which I defined as legal interests that belong to the government or the people collectively) and legal interests that belong to a private person; and (2) within the category of private legal interests, the difference between mere privileges or expectancies and vested rights to life, liberty, or property. In my telling, nineteenth-century lawyers and judges thought that Congress could authorize executive-branch actors to administer and dispose of "public rights" and mere privileges or expectancies without judicial involvement, but that only courts could render judgments conclusively rejecting a private person's claim to vested rights. Recently, Professor Gregory Ablavsky has taken issue with my account. In Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022), he identified an alleged counterexample to the framework that I described: when foreign sovereigns ceded territory to the United States, inhabitants of the ceded territories who claimed "imperfect" titles based on incomplete grants from the previous sovereign were not thought to be entitled to judicial adjudication of their claims, even though the legal interests that they asserted were regarded as property. According to Professor Ablavsky, this history supports a broader understanding of "public rights" than I offered, and it potentially legitimates more nonjudicial adjudication than my framework would suggest. This Article responds. It explains why imperfect titles to land in the ceded territories were not treated as judicially cognizable vested rights, and it defends my understanding of "public rights."
Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. Although the lack of consumer reading has been well documented through empirical research, consumers' ability to comprehend standard-form contracts has received surprisingly little attention. This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard-form homeowners insurance policy improves consumer understanding of coverage. Through a series of survey-based experiments, we compare consumers' general beliefs about homeowners insurance with their beliefs after reading key policy excerpts. Our main finding is that providing policy language only moderately improved consumer understanding in some scenarios, while affirmatively decreasing accuracy in others. We interpret these results as suggesting that respondents often struggle with partial reading or misinterpreting policy provisions, especially when policy language grants broad coverage that is later restricted by specific exclusions in the same section-a common structural feature of insurance policies. These findings carry significant legal and regulatory implications. Even if most consumers do not read standard-form contracts, improving the readability and comprehensibility of standard-form terms can limit firms' discretion in disputes, enhance regulatory oversight of unfair provisions, and empower markets to penalize firms relying on excessively one-sided terms. This Article argues that addressing these challenges is essential to fostering fairer and more effective consumer protections.
Artificial Intelligence ("AI") companies are racing to create Artificial General Intelligence, or "AGI. " If they succeed, the result will be human-level AI systems that can independently pursue high-level goals by formulating and executing long-term plans in the real world. By default, such systems will be "misaligned"-pursuing goals that humans do not desire. This mismatch of goals will put humans and AGIs into strategic competition with one another. Thus, leading AI researchers agree that, as with competition between humans with conflicting goals, human-AI strategic conflict could lead to catastrophic violence. Existing law is not merely unequipped to mitigate this risk; it will actively make things worse. This Article is the first to systematically investigate how law affects the risk of catastrophic human-AI conflict. It begins by arguing, using formal game-theoretic models, that under today's legal regime, humans and AIs will likely be trapped in a prisoner's dilemma. Both parties' dominant strategy will be to permanently disempower or destroy the other, even though the costs of such conflict would be high. The Article contends that one surprising legal change could help to reduce catastrophic risk: AI rights. Not just any rights will do. To promote human safety, AIs should be given the basic private law rights already enjoyed by other non-human agents, like corporations. AIs should be empowered to make contracts, hold property, and bring tort claims. Granting these rights would enable humans and AIs to engage in iterated, small-scale, mutually beneficial transactions. This, we show, changes humans' and AIs' optimal game-theoretic strategies, encouraging a peaceful strategic equilibrium. The reasons are familiar from human affairs. In the long run, cooperative trade generates immense value, while violence destroys it. Basic private law rights are not a panacea. The Article identifies many ways in which catastrophic human-AI conflict may still arise. It thus explores whether law could further reduce risk by imposing a range of duties directly on AGIs. But basic private law rights are a necessary prerequisite for all such further regulations. In this sense, the AI rights investigated here form the foundation for a Law of AGI, construed.
The pharmaceutical industry's billion-dollar practice of inflating drug prices and shielding itself from accountability has brought immense public outcry and inspired a profusion of legal reforms. But the precise dynamics that enable this ongoing crisis remain obscure, impeding effective resolution. This Article examines the interplay between legislative, regulatory, and new governance approaches emerging at both the federal and state levels. It exposes how a seemingly singular problem of high drug costs unfolds as a complex series of mergers, collusions, and restrictive strategies throughout the healthcare supply chain. The poster child of big pharma greed is insulin, the lifesaving drug of diabetics. This Article presents insulin as a case study in analyzing how a drug discovered long ago evolved, through product hopping and patent evergreening, into multiple brand-name products still under patent. It further illustrates how market concentration in each link of the drug delivery chain has substantially increased with impunity, spanning from big pharma to pharmacy benefit management ("PBM") intermediaries that broker deals between drug manufacturers, insurers, and pharmacies. The compounding effects of horizontal and vertical integration of powerful industry actors-what this Article calls "oligopoly squared"-have enabled collusive deals, including formulary exclusion, secret rebates, spread pricing, and preferred pharmacy status, each designed to artificially inflate insulin prices. Moving from the expository and descriptive to the analytical and prescriptive, this Article then presents an equally multifaceted framework to address these harmful effects, combining cost control and transparency laws, PBM regulation, patent law and U.S. Food and Drug Administration generics approval reforms, and antitrust enforcement. This Article explains why federal law should not be interpreted as preempting state regulation of pharmaceutical supply chains. This Article further analyzes efforts using cutting-edge theories of competition law in light of broader recent developments in adjudicating market power and collusion. Most importantly, this Article examines the newest approaches emerging in the landscape of market and legal levers-direct-to-consumer transparent pharmacies and the public production of drugs-and argues that these new governance models have the greatest potential to disrupt the concentrated market. By analyzing and integrating these diverse efforts through the lens of legal theory and practical impact, this Article not only charts the course of pharmaceutical drug industry reform but also offers broader implications for regulating complex industries.
The executive branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the executive's constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the executive branch interprets the Constitution and translates those interpretations into concrete decisions? What are their histories? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvassed the most central tools by which the executive branch shapes and implements constitutional law or considered what makes them unique. This Article pursues that project. Descriptively, the Article provides a thick account of executive branch constitutional interpretation, particularly in its centralized form controlled by the president and the Department of Justice. We describe and assess executive tools and methods for interpreting the Constitution and transmitting those interpretations to different audiences. Some of these tools are well known and have obvious judicial analogs. But this Article shows how the history and contours of these practices have not been fully understood. It also excavates some unfamiliar tools that have gone unnoticed and unexplained. Our descriptive account provides a foundation for assessing executive constitutionalism. Comparing executive and judicial practices can help justify some existing arrangements while suggesting reforms for others. More broadly, a rich understanding of how executive branch constitutional interpretation has worked is critical for assessing the virtues and vices of executive constitutionalism writ large-especially in the second Trump Administration, in which expansive claims of constitutional authority loom large.
The federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") and Religious Freedom Restoration Act ("RFRA") are commonly labeled "twin" or "sister" statutes. Both reinstall a strict scrutiny regime for religious accommodations, and they use identical remedial language to do so, providing for "appropriate relief against a government." In 2020's Tanzin v. Tanvir, the Supreme Court interpreted RFRA's remedial provision to allow for personal capacity damages suits against government officials. By that time, however, ten federal courts of appeals had reached the opposite conclusion regarding that same remedial text within RLUIPA. Post-Tanzin, no circuit has changed course. Instead, they hold fast to two objections grounded in RLUIPA's Spending Clause underpinnings: (1) RLUIPA has not provided "clear notice" of potential liability, which is required for a party to be liable for damages; and (2) because government officials are non-recipients of federal funds, they cannot be held personally liable. This Note argues that these circuits have misapplied Spending Clause jurisprudence. Background presumptions, text, context, and precedent all make clear that damages suits against individuals are on the table. And the Supreme Court has repeatedly held funding non-recipients monetarily liable for violation of Spending Clause statutes, creating a line of precedent at odds with the circuits' divined rule. This Note also illustrates the injustice that these erroneous damages bars have worked
After hundreds were charged in connection with the events of January 6, 2021, several defendants argued they were only doing what President Trump told them to. More specifically, they raised the public authority defense as articulated in the U.S. Court of Appeals for the District of Columbia Circuit's Watergate-era case United States v. Barker. The defense involves a claim that an individual was authorized to engage in otherwise unlawful activity by a government official. But the D.C. Circuit was split on whether the government official in question must have the authority to make such an authorization, or if the defendant's belief in the official's apparent authority would suffice. The D.C. Circuit never clarified the standard, and now that President Trump has pardoned the January 6 defendants, the court is once again unable to do so. Nevertheless, the January 6 case is a prime test to determine the proper standard, and this is the prime time to do so, given the possibility of future prosecutions of current Trump Administration associates who may want to claim reliance on President Trump's direction. This Note makes four contributions: First, it describes the public authority defense case law, beginning with the actual-versus-apparent authority debate in Barker and its progeny. Second, this Note argues that the actual authority standard is correct based on existing law and policy. Third, it applies the actual and apparent authority standards to the January 6 case, illustrating how only the actual authority standard provides a workable rule. This conclusion makes clear that the public authority defense must fail for the January 6 defendants, but not for the reason courts thought. Fourth, this Note elucidates additional implications for the public authority defense and for those President Trump directs to take unlawful action during his second term. Ultimately, individuals cannot rely on a president's orders to escape criminal culpability.
An important piece of the "speech-tort" picture has been almost completely missing from doctrinal and policy analysis: the role played by liability insurance in protecting speech. In New York Times Co. v. Sullivan, the Supreme Court began adopting First Amendment restrictions on liability for defamation and the other speech torts-false light, intentional infliction of emotional distress, and public disclosure of private information. The Court's purpose was to create "breathing space"for valuable speech by precluding liability for some speech that has no constitutional value in itself. However, there is a little-known but highly important liability insurance regime that also affords breathing space, more broadly than the constitutional rules, by insuring against liability for unprotected speech and the costs of defending virtually all speech-tort suits, regardless of their validity. There have been decades of extensive legal scholarship about the First Amendment's restrictions on speech-tort liability. Yet this scholarship has largely ignored the fact that all the liability for the speech torts that the First Amendment does permit can be, and often is, covered by liability insurance. In addition, Supreme Court Justices Thomas and Gorsuch recently have separately criticized existing constitutional limitations on liability for defamation as too broad without any mention of the widespread existence and availability of insurance protecting against liability for defamation. The Justices' criticisms of defamation law have garnered a lot of attention and a barrage of responses, which have also omitted any reference to the possible relevance and significance of liability insurance to the debate about the proper scope of liability for defamation. This Article takes insurance against speech-tort liability out of the shadows, bringing First Amendment theory and doctrine into the orbit of thinking about liability insurance and its operation in practice. The Article identifies and analyzes the sources and scope of the coverage that insurance provides against speech-tort liability, combining insights about the complex and intertwined consequences of the threat ofspeech-tort liability with what we know about how liability insurance both creates breathing space and attempts to mitigate excess risk-taking by those who are insured. The Article argues that, whether the end result is to change the law or simply to provide a firmer and more knowledgeable foundation for maintaining the law as it now stands, proponents of reform should either invoke the availability of liability insurance in support of their position or explain why their analyses ignore it. And opponents of reform should explain why they maintain their support of the status quo in spite of the availability of liability insurance. Finally, the Article considers the relevance of liability insurance to different theories of tort liability and analyzes the principal possible alternative to the current constitutional limits on liability, a negligence standard, concluding that such a standard would have considerable deficiencies.
The Supreme Court has applied noscitur a sociis, often called the associated words canon, in many notable decisions-including the recent Fischer v. United States. This canon has a longstanding history in American jurisprudence, but interpreters face challenges in finding a common theme among words or phrases and supporting it with surrounding context. And some scholars argue judges can use noscitur to bring in external policy preferences and ideological beliefs. This Note proposes several steps to guide the use of noscitur and, by extension, its cousin ejusdem generis, including the clear identification of an association and multiple common themes and principles for transparent contextual analysis. These steps can shield judges from the appearance of guesswork or ideologically influenced decisions and encourage more accurate results by providing a clear roadmap of these canons' proper application. They may also bring interpreters of all methodologies closer to their interpretive goals.
Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress's subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both sides of the "v" has ended in a final judgment on the merits. This Article develops the concept of "political mootness."As elections take place and the parties in interest to litigation change, cases become politically moot. In the judiciary, political mootness manifests in three ways: legal mootness, separation-of-powers settlements conditional on vacatur of judicial opinions, or executive discretion in intra-branch prosecutions. But political mootness also affects the coordinate branches. Through a series of original interviews,** this Article shows that Congress self-constrains its authority preemptively to avoid litigation. Congress is aware that litigation threatens to drag out disputes beyond its electoral mandate and so pivots to use less than the full scope of its authority. These interviews also reveal a widespread practice of "friendly subpoenas," requested by putative witnesses for legal, political, or other cover. Although Congress appears to have significant authority, when executive witnesses are truly recalcitrant, that authority is at its lowest potency. With this broader context for inter-branch conflicts, this Article returns to take on the role of adjudication in those conflicts. Adjudication performs neither law declaration nor dispute resolution when the United States is represented on both sides. Instead, this Article argues, adjudication is a forum for tripartite dialogue about the structural constitution's boundaries. In this frame, some aspects of political mootness are desirable, but other aspects have entrenched structural disadvantages that Congress faces. This Article offers some proposals to strengthen Congress's position in disputes with the executive, while taking advantage of some of political mootness's features.
Aesthetic regulation is fast becoming a pervasive feature of many cities' and states' zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning-itself an exercise of the well-recognized but somewhat nebulously defined police power- the constitutional basis for aesthetics' use as the sole justification for zoning decisions has not been closely examined by courts or academics. Over the past seventy years, the Supreme Court has steadily bolstered the legitimacy of solely aesthetic zoning by suggesting that it should be included among the other traditional police power justifications. Though most of the cases falling within this doctrinal trend look to dicta from the well-known Berman v. Parker for support, their approaches have largely failed to critically engage with the Berman Court's justifications for aesthetic regulation. Current scholarship also takes the genesis of this doctrine for granted, appearing more interested in examining the conflicts that arise when aesthetic regulation brushes up against other areas of the law, such as the First Amendment's guarantee of free expression or the disproportionate impacts that aesthetic regulation and restrictive zoning have on certain communities, than in examining the doctrine's origins. This Note attempts to probe the instability of this growing doctrine's foundations by examining solely aesthetic regulation's complicated historicity and constitutionality. Ultimately, this Note suggests that recent trends indicate a new willingness by the Supreme Court to reexamine troubled dicta and tackle head-on the question of whether aesthetics may stand on their own as a legitimate justification for exercises of the police power.
Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution's Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause's protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause's protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question. The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court's jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment-such as prison-because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies. To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government selfinterest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that state and local discretionary fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities' values and needs.
Concerns about judges using their own personal moral beliefs in deciding cases, the difficulty in weighing competing moral principles in America's liberal and pluralist society, and concerns about judges reaching an opinion under only the guise of principled reasoning all motivate constitutional theories that "constrain" judges. Under a "constraint approach," constitutional theories try to limit the appropriate set of outcomes a judge may reach, the appropriate justifications judges may use in reaching a decision, or both. By drawing on the works ofAlasdairMacIntyre and Ronald Dworkin, this Note introduces an alternative solution to resolving those problems- the "internal goods approach." Under the internal goods approach, success in judging is measured by the extent to which judges prioritize "internal goods."Purposefully described at a high level of generality, a judge prioritizing internal goods engages in legal reasoning and examines and applies principles required by the institutional nature of law when confronted with difficult cases. A critical requirement for this approach to respond to the aforementioned concerns motivating constraint is that a judge exercises judicial virtues. This Note argues that not only does the constraint approach not resolve these concerns, but that the internal goods approach better resolves them. And rather than merely criticizing an outcome as "activist," the internal goods approach provides a more meaningful basis upon which to evaluate constitutional theories by evaluating their account of the internal goods. This Note also provides a detailed account of judicial virtues which serve as a concrete and practical basis for evaluating judges.
Executive emergency powers are tantalizingly effective. They allow presidents to bypass congressional gridlock, do away with procedural safeguards, and act decisively with minimal oversight. But there is a risk that these exceptional powers may become a norm of domestic governance. This Note theorizes a problem of "partisan emergencies," declared by a president despite significant disagreement about the factual existence of an emergency. One example is President Trump's declaration of an emergency after Congress refused to fund his border wall. Other examples stem from Democrats calling on President Biden to declare an emergency to address issues like climate change and reproductive health. Congress, initially relying on a legislative veto to terminate such declarations, must now muster a supermajority if it disagrees with them. At the heart of the scheme is the National Emergencies Act, outlining how a president can declare a "national emergency" and what powers he unlocks by doing so without imposing a definition of the term. This Note surveys the judiciary's recent treatment of emergency powers, positing that while courts are willing to engage in means-ends review about how an executive uses emergency powers, they are not willing to engage in the factual question of whether an emergency exists at all. This Note then argues that the judiciary must be willing to engage with this question to effectively rein in dubious invocations of emergency power. To do so, the courts should treat the term "national emergency" as one capable of statutory interpretation, rather than one posing an intractable political question.
