Lawmakers today face continuous calls to "future proof" the legal system against generative artificial intelligence, algorithmic decision-making, targeted advertising, and all manner of emerging technologies. This Article takes a contrarian stance: it is not the law that needs bolstering for the future, but the future that needs protection from the law. From the printing press and the elevator to ChatGPT and online deep fakes, the recurring historical pattern is familiar. Technological breakthroughs provoke wonder, then fear, then legislation. The resulting legal regimes entrench incumbents, suppress experimentation, and displace long-standing legal principles with bespoke but brittle rules. Drawing from history, economics, political science, and legal theory, this Article argues that the most powerful tools for governing technological change-the general-purpose tools of the common law-are in fact already on the books, long predating the technologies they are now called upon to govern, and ready also for whatever the future holds in store. Rather than proposing any new statute or regulatory initiative, this Article offers something far rarer, a defense of doing less. It shows how the law's virtuesgenerality, stability, and adaptability-are best preserved not through prophylactic regulation, but through accretional judicial decision-making. The epistemic limits that make technological forecasting so unreliable and the hidden costs of early legislative intervention, including biased governmental enforcement and regulatory capture, mean that however fast technology may move, the law must not chase it. The case for legal restraint is thus not a defense of the status quo, but a call to preserve the conditions of freedom and equal justice under which both law and technology can evolve.
Though the Constitution charges Congress with the responsibility to "declare War," modern Presidents have unilaterally deployed sustained military force around the world with regularity. Greater presidential unilateralism in armed conflict is not without controversy, and Congress has passed legislation to rein in the Commander in Chief. Efforts to shift the allocation of the war powers away from the President have not been successful, however, partially because the courts are rarely willing to reach the merits of suits challenging the President's authority to act on his own. Relying on a handful of (non)justiciability doctrines-most notably, the textual considerations set out in Baker v. Carr-the courts have almost universally dismissed such disputes as beyond the judicial power to decide, and war powers reformers have crafted their efforts accordingly. This Note argues that Baker's textual factors do not tell the whole story. The courts' lack of military expertise or political accountability make it infeasible for them to adjudicate war powers disputes without endangering U.S. lives and foreign policy interests. Baker's more prudential fifth factor, therefore, counsels against ruling at all in such cases, even if the textual factors do not. By elaborating and responding to these prudential arguments for nonjusticiability in the war powers arena, this Note offers a more complete account of justiciability issues in war powers disputes and highlights a shortcoming of recent war powers reform efforts. The Note concludes, however, that the fifth factor is not an insurmountable barrier: by codifying the remedy applicable where courts find violations of the WPR, Congress can take critical value judgments out of courts' hands and thereby empower them to finally adjudicate war powers suits on their merits.
In a series of provocative experiments, a loose group of scholars, lawyers, and judges has endorsed generative interpretation: asking large language models (LLMs) like ChatGPT and Claude to resolve interpretive issues from actual cases. With varying degrees of confidence, they argue that LLMs are (or will soon be) able to assist-or even replace-judges in performing interpretive tasks like determining the meaning of a term in a contract or statute. A few go even further and argue for using LLMs to decide entire cases and to generate opinions supporting those decisions. We respectfully dissent. In this Article, we show that LLMs are not yet fit for use in judicial chambers. Generative interpretation, like all empirical methods, must bridge two gaps to be useful and legitimate. The first is a reliability gap: are its methods consistent and reproducible enough to be trusted in high-stakes, real-world settings? Unfortunately, as we show, LLM proponents' experimental results are brittle and frequently arbitrary. The second is an epistemic gap: do these methods measure what they purport to? Here, LLM proponents have pointed to (1) LLMs' training processes on large datasets, (2) empirical measures of LLM outputs, (3) the rhetorical persuasiveness of those outputs, and (4) the assumed predictability of algorithmic methods. We show, however, that all of these justifications rest on unstated and faulty premises about the nature of LLMs and the nature of judging. The superficial fluency of LLM-generated text conceals fundamental gaps between what these models are currently capable of and what legal interpretation requires to be methodologically and socially legitimate. Put simply, any human or computer can put words on a page, but it takes something more to turn those words into a legitimate act of legal interpretation. LLM proponents do not yet have a plausible story of what that "something more" comprises.
Hawai`i faces one of the highest rates of homelessness in the nation, driven by a combination of systemic barriers, historical policy failures, and a high cost of living. Governor Josh Green, M.D., advocates a "housing is healthcare" model, positioning stable housing as a cornerstone ofpublic health. This comprehensive approach tackles homelessness through the innovative Kauhale initiative-community-centered, costeffective housing solutions that integrate supportive services and foster belonging. With the use of emergency powers, Hawai`i is addressing immediate crises while building long-term system resilience through legislative and administrative reform. This paper charts the historical, social, and economic roots of homelessness in Hawai`i, explores the impacts of state and federal policies, and outlines actionable solutions to stabilize and reduce homelessness while addressing its underlying causes. The state's homelessness response serves as a potential model for addressing homelessness as a public health emergency across the nation.
In June 2025, the Supreme Court's decision in Trump v. CASA fundamentally altered the landscape of federal litigation by eliminating district courts' authority to issue "universal injunctions" that protect anyone beyond named plaintiffs. While this ruling addressed legitimate concerns about forum shopping and single-judge control over national policy, it may have overcorrected-potentially leaving constitutional violations to continue unabated while affected parties scramble to organize class actions or coordinate individual suits. The Court's reliance on statutory interpretation of the Judiciary Act, rather than constitutional limitations, means Congress retains authority to restore broader injunctive relief through new legislation. This Article examines the case for such legislative action and proposes institutional reforms that would preserve meaningful judicial protection against government overreach while addressing the legitimacy concerns that made universal injunctions controversial. The Article evaluates universal injunctions'evolution from extraordinary remedies into routine instruments of political contestation, analyzes the Supreme Court's restriction of this authority, and proposes a modernized three-judge court system-structured with targeted jurisdiction, circuit court appellate review, and technological enhancements-as a promising institutional solution that addresses judge-shopping concerns without impeding access to justice. The Article further demonstrates why increasing security bond requirements would create unacceptable financial barriers to judicial review for vulnerable plaintiffs and argues that any legislative framework should preserve existing judicial discretion over bond determinations rather than mandate specific requirements. Drawing on historical experience and contemporary needs, this Article proposes a balanced legislative approach that would restore the essential function of preliminary injunctions as a check on government overreach while enhancing their deliberative legitimacy and reducing their most partisan applications.
Since the development of the first nuclear weapons, policymakers have been forced to grapple with the implications of their extraordinary destructive potential. Congress, with its constitutional remit on matters of war and peace, has responsibility to shape the development of policies which govern nuclear weapons, including in their acquisition and use. In the decades following the invention of nuclear weapons, Congress has at times taken active roles in oversight of nuclear weapons policy and programs in accordance with its constitutional prerogatives. However, in part due to Congress's structure, this oversight has recently tended towards dictating programmatic minutiae rather than addressing the strategic questions about the role that nuclear weapons should play in the national security of the United States. On such an important political issue, Congress must engage in fulsome debate and take an active role in shaping policy regarding the role of nuclear weapons in our security, society, and international relations.
Policymakers are considering enacting either a new spending program or a tax cut. Who pays for the policy? The answer to that question is central to understanding the consequences. Yet, it is a question which, for the most part, policy analysts and scholars have left under-explored and often answered incorrectly or at least incompletely. Analysts and scholars have approached the issue in a variety of ways, including simply believing what policymakers say is the financing in a given piece of legislation, not distributing any financing, assuming the financing is "distributionally neutral," or assuming the financing comes from the income tax. These approaches are wrong and fail to capture the ultimate financing. This article suggests an alternative: causal analysis rooted in the political economy of the government. It is distribution reimagined. This article begins to explore what it means to analyze financing as a causal matter. Importantly, there will be no certainty in this endeavor-it is necessarily probabilistic and should take into account the inconsistency of policymakers over time. The approach can fundamentally change our understanding of the distribution of policy. Policies that seem more progressive may be exactly the opposite when the ultimate financing is properly considered. And, it can lead to a re-evaluation of the wisdom of policy. Given the political economy of the United States, new benefits could be financed to a significant degree by those with lower incomes, despite what policymakers may say at the time, and this should be a serious concern for those who would prioritize resources for those with less. If policymakers continue to be averse to the types of financing sources that reduce this risk, it suggests greater reason to keep fiscal benefits targeted to those with greater need. In the end, irrespective of one's policy preferences, this type of causal analysis to determine ultimate financing is critical to understanding the effects and wisdom of fiscal policies.
Judicial review of the FDA's decisionmaking has long been legally permissible, but courts generally had not engaged in substantive review of the scientific bases for drug approval until 2023, when advocacy organizations filed suit against the FDA to oppose approval of the abortion drug mifepristone. Although most of the attention on the Alliance for Hippocratic Medicine v. FDA (AHM) case has centered around the complex politics surrounding mifepristone's approval and use, this Article explores AHM as a test case for how the FDA's failure to effectively respond to two citizen petitions provided an opportunity for judicial overreach into the FDA's science-based decisions on the approval of mifepristone. The Article reviews the history of FDA citizen petition review and discusses the interplay of citizen petition review with judicial review procedures. The Article then turns to AHM, by reviewing the citizen petitions and litigation tactics used to bring judicial review in AHM and explaining how these tactics remain viable despite the Supreme Court's ultimate determination that the plaintiffs in AHM lacked standing. After exploring the significant risks of overreach in potential future judicial review of FDA drug approval decisions and the FDA's potential options in the face of a court order, the Article provides concrete suggestions for the FDA and Congress to improve the citizen petition process.
The advent of social media in the first decade of the 21st century promised a new era of connectedness; instead, we are more isolated than ever - especially our youth. The ubiquity of social media platforms has played a leading role in a mental health crisis plaguing American adolescents. As a United States Senator, I believe our government has a compelling interest in acting to counter these disturbing trends. In this Essay, I discuss a comprehensive policy agenda the U.S. government should pursue to safeguard young Americans from the harms social media can cause.
The judge assigned to a class action case impacts the legal representation class members receive. When multiple attorneys seek to represent class members in a litigation, Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys best able to represent class members' interests. Courts, however, have little guidance and much discretion in determining which attorneys would best represent the class, resulting in a process that allows judicial preferences and biases to factor into class counsel appointment decisions. Class action attorneys often forum-and judge-shop in hopes of obtaining a "lucky" draw or transfer-a court that will not only be sympathetic to class members' claims but also more likely to appoint the attorney to represent the class. But are attorneys correct in assuming their odds of serving as class counsel vary depending on the court to which a litigation is assigned or transferred? This Article empirically examines class action cases transferred to various courts to determine whether certain courts are more likely to appoint certain attorneys to represent class members. Pointedly, the data reveal that female attorneys experienced lower success rates than male attorneys before Republican-appointed courts. Conversely, male attorneys experienced lower success rates before racially diverse courts and Democrat-appointed courts. The court presiding over a matter also impacted attorneys' class counsel bids. Male attorneys, for example, formed a greater percentage of the applicant pool when a court was male or White. The judge to whom a class action is assigned or transferred therefore impacts class members' legal representation, either due to courts' preferences or class attorneys' (correct and incorrect) perceptions of courts' preferences. This Article thus proposes implementing a class counsel rubric system that, in addition to assigning specific weight to criteria courts must and may consider when appointing counsel under Rule 23, assigns significant weight to class members' evaluations of counsel. Employing a rubric that assigns distinct numerical values to class members' attorney preferences and other factors courts presently consider will increase the objectivity of class counsel appointments, temper courts' wide discretion, eliminate siloed decisionmaking, and provide class members with legal representation that better aligns with their interests and needs.
At the conclusion of the majority opinion in Moore v. Harper, cryptic dicta warned that federal courts should review state court decisions about election-related state laws to ensure that state courts do not "transgress the ordinary bounds of judicial review." The Moore Court provided little guidance about how federal courts should engage in this "Moore review." Legal scholars warn that federal courts could use Moore review to arrogate power to themselves at the expense of state courts. But scholars have not yet considered in sufficient detail how federal courts should engage in Moore review in a way that both vindicates the federal entitlement guaranteed by the U.S. Constitution's Elections Clause and preserves the appropriate balance of power between the federal and state judiciaries. In this Article, I build upon existing scholarship to propose a two-step analysis by which a federal court should engage in Moore review. In this inquiry, the federal court should determine whether the state court adhered to its ordinary interpretive methodology and, if it did not, whether that deviation was reasonable.
Is an airplane a "vehicle"? Is a floating home a "vessel"? Is an unassembled gun a "firearm"? Such questions about "artifact nouns"-nouns that describe human-created entities-are fodder for legal philosophy. They are also common statutory interpretation issues, which today's textualist courts resolve with linguistic analysis. We propose that textualist courts complement familiar tools, like dictionaries, with insights from linguistics. We examine as a case study Garland v. VanDerStok, which the Supreme Court will soon decide. It concerns "gun parts kits," firearm parts that can become operable firearms through combination or part finishing. These kits have been used in several mass shootings, and the case concerns whether such a kit is a "firearm" subject to regulation under the 1968 Gun Control Act. To analyze the statute's meaning, we apply insights from linguistic theory, new data from language usage, and a survey study of ordinary Americans. This evidence supports that the gun parts kits identified by the government fit within the statutory meaning of "firearm." The Article's case study in the legal interpretation of artifact nouns also carries broader implications. We develop lessons for the practice of legal interpretation, statutory interpretation theory, and broader debates in legal philosophy.
Strengthening the Federal Approach to Educational Equity During the Pandemic provides a timely analysis of three issues of great national significance for education and the United States. First, it synthesizes preliminary research regarding the pandemic's educational harms through the 2020-2021 school year, including learning losses and the disparate impact of the pandemic on particular subgroups of children. It concludes by noting that the disproportionate adverse impact of the pandemic on vulnerable subgroups should lead federal intervention to prioritize educational equity. Second, it describes the federal legislative and executive response to the pandemic and critiques how this response may impact educational equity. Finally, after explaining a comprehensive theory for education federalism that prioritizes educational equity, the article proposes how the federal response to the pandemic should be strengthened to advance a coherent and consistent approach to education federalism that focuses on educational equity.
When Congress is highly polarized and closely divided between the two parties, the majority party will often lack the votes to overcome a Senate filibuster on controversial matters. Majorities have tried to circumvent the filibuster by using the budget reconciliation process-which allows a simple-majority to close debate and move to a final vote-to make major policy on topics ranging from immigration to labor to climate. These efforts sometimes fail on account of the Byrd rule, a rule of legislative procedure that serves as a gatekeeper for the reconciliation process. The most important part of the rule is brief and somewhat cryptic, providing that a provision violates the rule and can be struck from a reconciliation bill if the provision "produces changes in outlays or revenues which are merely incidental to the nonbudgetary components of the provision."
One of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the alleged Tea Party auditing scandal in 2013. Commentators and scholars have long critiqued the IRS for focusing audit resources on some of the lowest -income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non -Black taxpayers. In response, legislators demanded action, there was widespread public consternation, and IRS officials stated that they were "deeply concerned by these findings." These, and other, controversies suggest deep disdain for the targeting of taxpayers by the IRS, as well as general confusion about what it even means for the IRS to "target" taxpayers. Despite the fact that "targeting" is a powerful accusation often leveled at the IRS, it turns out that it is a significant challenge to pinpoint what "targeting" means. This question is complicated by the fact that the IRS must focus its resources on some taxpayers, but not others. Moreover, how best to allocate tax enforcement resources is not a question that has a clear, technocratic answer. Rather, it depends on normative questions, such as how much we should prioritize taxpayers who face greater vulnerabilities. And the law provides little help in deciding when tax enforcement choices are out of bounds, as antidiscrimination law plays no real, practical role in curbing the IRS's tax enforcement decisions. This Article identifies how these factors lead to a democratic accountability problem at the heart of tax enforcement. Which taxpayers to pursue is a deeply valueladen question, and the IRS is left to answer it with few legal guidelines, little ex ante oversight by the accountable branches of government, and little transparent dialogue with the public. This state of affairs inevitably leads to targeting controversies, which harm both the IRS and the public. Having identified this central problem, this Article begins to chart a path toward more democratically accountable tax enforcement. Dialogue with the public about difficult, normative tax enforcement decisions can, and should, be consistent with a successful enforcement regime.
Among the significant developments of the Roberts Court so far has been the announcement of the major questions doctrine, which conditions "major" agency action on a clear statement from Congress. Much of the commentary on the doctrine has framed it as a tool for reprimanding perceived agency overreach. This Note challenges that framing by focusing on tax policy, an area of governance in which several broad assertions of agency power have not been challenged by courts on separation of powers grounds. This Note argues that this phenomenon is due to Congress's own engagement in the realm of tax policy. First, Congress takes note of agency action and acts correctively where it disagrees. Second, Congress is more active in passing tax legislation than it is in passing other types of legislation. Third, Congress frequently makes piecemeal edits to individual code sections specifically in response to taxpayer behavior. This Note ultimately concludes that congressional inaction rather than agency overreach is to blame for the current imbalance of executive to legislative power to which the major questions doctrine purports to respond. Thus, the appropriate response to the doctrine lies not in reigning in administrative action, but in finding fixes to legislative gridlock.
The Supreme Court’s emergency docket is now a central part of federal environmental law despite being completely absent just ten years ago. The Court has entertained and granted emergency relief, such as stays or injunctions of regulations and lower court rulings, far more commonly in recent years than at any other time in its history. A notable number of the Court’s recent high-profile emergency docket actions have involved rule makings by the Environmental Protection Agency. And beyond these particular disputes, the Court’s greater receptivity to emergency applications seeking to halt federal executive actions implies a looming threat to environmental regulations. The ascendence of the Supreme Court’s emergency docket in environmental cases is troubling. In general, the Court’s increasing willingness to halt agency action in emergency orders raises constitutional, statutory, judicial-administration, and institutional-legitimacy concerns; and in the complex rule making challenges that characterize much of federal environmental law, basic problems of institutional capacity compound those concerns. One response to these challenges might be for the Supreme Court to manage its emergency docket so as to avoid reliance on its own fact-finding. But there are signs that the Court is not trending in that direction. Quite the opposite. The Court appears to be remolding the traditional standard for emergency relief by erasing the requirement that the equities of granting a stay must clearly favor the applicant. Such an approach to the equities of emergency applications, if adopted more broadly, could pose a major impediment to the administration of laws that protect the public’s health, safety, and other welfare interests. If the Supreme Court continues to trend toward further devaluation of equitable considerations in its review of emergency applications in administrative rulemaking cases, proponents of national regulatory programs should respond with new strategies. Here we offer some practical suggestions for lower courts, lawmakers, agencies, and other litigants who must adjust to new emergency docket trends in the context of national regulatory programs. First, we review concerning trends in the Court’s approach to the equities of preliminary relief and use examples from federal environmental cases to elucidate the importance of careful equitable balancing. Then we offer some initial recommendations on how lower courts could adjust to a regime in which the Court is willing to engage early and aggressively in rule making review cases; how advocates might take account of these new realities; and how lawmakers and rule-drafters might address the issue.
