The laws of war, in most accounts, rest on two central premises: (1) they are "humanitarian," designed to protect individuals, and (2) they have been so since at least the aftermath of World War II. This Article undercuts that narrative. Contrary to mainstream legal scholarship, this Article argues that the laws of war became "humanitarian" only in the 1990s. Central to this transformation were the ideas of a group of international lawyers and jurists-the "humanitarian lawyers." Their revolutionary ideas reflected the influence of human rights, or the project of transcending the state and universalizing individual protections, on the laws of war-a doctrinal shift particularly evident in the law of noninternational armed conflicts. In their preoccupation with atrocity prevention, the humanitarian lawyers in the 1990s prioritized decontextualized individual criminal accountability rather than inquiries into systemic conditions that produce mass violence. In the process, alternate human-rights ideas from previous decades, which sought to emphasize ambitious goals like peace and disarmament in the legal regulation of war, lost out. In refuting the conventional progress narrative, this Article demonstrates the potential to revive these promising ideals.
The Supreme Court is rewriting constitutional sex-equality law through a distorted reading of a long-dormant footnote: footnote twenty of the 1974 decision Geduldig v. Aiello. Geduldig held that in structuring a disability-insurance plan, a state could proceed "one step at a time" and exclude coverage for normal pregnancy without flouting the Equal Protection Clause. Footnote twenty added that pregnancy exclusions didn't unconstitutionally discriminate on the basis of sex because women and men received the same benefits, with neither sex receiving pregnancy benefits. From nearly the beginning, Geduldig and its footnote were ridiculed by commentators, thrashed by Congress, and limited by the Court, which did not rely on footnote twenty in any constitutional decision for nearly four decades. This all changed in Dobbs v. Jackson Women's Health Organization, which distorted footnote twenty to reject-in dicta-the constitutional equality argument for abortion. In 2025, the Court grafted footnote twenty onto new terrain to uphold gender-affirming-care bans against a constitutional transgender-discrimination challenge in United States v. Skrmetti. In both cases, the Court reinterpreted the footnote-one discredited by fifty years of sex-equality jurisprudence-to require mere rational-basis review for laws that facially discriminate on the basis of sex, in defiance of the Court's decades-long application of heightened scrutiny to facial sex distinctions. This Feature takes Dobbs and Skrmetti to task for resurrecting and reinterpreting a footnote from a moribund case about pregnancy and social welfare in order to revive precedents inconsistent with the Constitution's commitments. It argues that the Roberts Court's reinterpreted footnote twenty undoes the progress facilitated by Carolene Products's footnote four, whose representation-reinforcing theory of judicial review helped lay the foundation for heightened scrutiny of sex discrimination. Where footnote four demands much more, footnote twenty now applies only rational-basis review to laws targeting biological traits unique to a single class. As a result, the Court confers constitutional leniency to facially discriminatory laws affecting the politically powerless, the very kind of laws for which footnote four demands close scrutiny so that democratic equality may be secured. This turn risks returning constitutional sex-discrimination doctrine to the nineteenth-century worldview epitomized by decisions like Bradwell v. Illinois, which embraced the idea that sex discrimination simply reflected "the nature of things." Likewise problematic, the Court rewrites constitutional law without explaining why, confounding rule-of-law values like reasoned explanation, transparency, and fidelity to precedent in ways characteristic of other features of the Roberts Court, like the shadow docket. By exposing this transformation, this Feature equips lower courts, advocates, and scholars with the tools to mitigate the unchecked revival of footnote twenty.
Kellen R. Funk's Law's Machinery is an erudite and compelling account of the creation, migration, and interpretation of the Field Code of Civil Procedure-named for one of its drafters, David Dudley Field. Although the Code was simultaneously imagined and feared as an attempt to transform how lawyers and courts worked, its achievements were much more ambiguous. Funk departs from earlier assessments of the Code and their focus on legal class politics, emphasizing instead the role of ideas about law in shaping the Code's trajectory. Conservative common lawyers and reformist codifiers alike could not escape the conceptual universe developed through legal practice, and so the meaning of the Code came to rely on the very world its creators had tried to overthrow. The Code thus marked less the arrival of an entirely novel mode of practice than the opening of a period of interpretive contestation that went to the very meaning and legitimacy of law. Law's Machinery also affords an opportunity to think productively about an increasingly salient issue in legal scholarship: empire. Field had imperial ambitions befitting a nation defined less by borders and more by the movement of its citizens. But this was not the understanding of empire that has become the center of much legal scholarship-it was not an empire of federal will. Rather, it was an empire of law, defined by the spread of a particular legal product in which some core- Field's New York, perhaps-became, as Field put it, the world's "lawgiver." And his ambitions succeeded, at least insofar as the Field Code spread far and wide across the United States. By the end of the nineteenth century, most American jurisdictions had adopted some version of the Code, often more of it than New York had enacted. But this success was far from obvious. Rather than the inevitable byproduct of territorial expansion, the Code's reach reflected the alleged demands of eastern capital and the anxieties of settlers in colonial outposts eager to remain within the pale of Anglo-Saxon civilization. This account suggests parallels with other stories of legal transformation in the nineteenth century, and this Review develops the parallels with the Hawaiian experience. The goal is not to suggest these experiences were all the same. Rather, it is to surface how capitalist and cultural constraints informed the process of lawmaking in ways that invite us to look beyond the federal government to understand the legal history of empire. At the same time, the growth of law's empire echoes the interpretive contestations that Funk finds in the history of the Code itself. The law that arrived in places like Hawai'i was not a complete and finished whole, and part of the legal history of empire must account for the ways people expanded and contested the meaning of law, even in a world of constraints.
The Framers of the U.S. Constitution said almost nothing about how subordinate officers would be held accountable. This Article provides one overlooked explanation for this longstanding puzzle. The Constitution was enacted against a well-defined jurisprudence that has largely fallen from view: a law of officers. When using the term "Officer" and its framework of "Duties," the Constitution invoked a distinctive method of regulating state power, in which officers were personally responsible-and liable-for discharging duties defined by law. The Framers and ratifiers of the Constitution expected that these common-law rules would fill the gap left by the document's silence. This Article weaves together the strands of statutory and common law that constituted and regulated the early American officer. This system of legal organization, drawn from longstanding English and colonial practice, empowered officers to create a decentralized governing apparatus that blurred the line between public and private. Its regime of harsh personal liability and individual empowerment impeded efforts to construct a top-down hierarchy by authorizing and encouraging officers to resist orders from their superiors. With the growth of the American bureaucracy during the nineteenth and twentieth centuries, judges and lawmakers replaced this officer-based paradigm of governance with a system of administrative law more conducive to the modern state. The legal regime of early American officeholding is inconsistent with many originalist justifications for the "unitary-executive theory," which assert that the Constitution relies on a combination of managerial control and presidential elections to discipline the state. Because the traditional law of officers centered officers' independent obligations to law rather than to the executive hierarchy, the law of officers actively frustrated efforts to construct the command-and-control executive branch unitarists believe the Constitution requires. All told, this history lays bare how the Court sidesteps an American tradition pervasive at the Founding to implicitly impose a theory of the state that rose to prominence after the early American law of officers began fading from view.
Workers' rights protections at the state and local level face a doctrinal brick wall: sweeping National Labor Relations Act (NLRA) preemption. Departing from the NLRA's text, federal courts preempt labor protections by relying on what I call "the purpose-impact method," an imprecise policy inquiry developed in several Supreme Court decisions authored by Justice Harry Blackmun. This Note provides the first holistic evaluation of the market participant exception to NLRA preemption and develops a novel critique of its restrained use. It outlines several paths forward to protect innovative state and local workers' rights protections.
The nation's "mandatory" immigration-detention laws sustain its largest civil-imprisonment system-and just radically expanded in scope and breadth. These laws consign broad swaths of suspected noncitizens to no-bail pretrial detention, denying tens of thousands of people facing civil regulatory charges any chance to prove they need not be detained. These laws turn split-second arrest decisions into jail sentences. They force people to give up meritorious claims. And they confound the historic presumptions-liberty, innocence, prosecutorial discretion, and bail-that undergird other pretrial-detention regimes. Although mandatory immigration detention conflicts with fundamental constraints on analogous detention regimes, the Supreme Court has treated it as exceptional and distinct. On this account, pretrial detention-detention pending proceedings to determine if a person is deportable-has been a "constitutionally valid aspect" of the deportation process for "more than a century" and was well accepted from a constitutional standpoint before any opportunity for release came along. Yet jurisprudence invoking this narrative tells us almost nothing about how detention actually operated at the time and, consequently, what type of detention or process early history and precedent may have enshrined. This Article takes on that task. It draws on critical sources of administrative law-early agency rules, binding interpretations, policy, and case files mined from the archives-to recover the lost history of pretrial-detention power and process during the deportation system's founding and formative years. This examination reveals that, in fact, the opportunity for release was virtually always part of deportation's early pretrial-detention scheme; any pretrial detention deemed constitutionally valid during that period came with the possibility of release. And it offers insight on why, showing that the agency's power to release was understood to be critical for a constitutionally permissible regime. Ultimately, this Article illuminates aspects of the early pretrial system that bear on pressing questions about detention and release in the contemporary scheme, and, as mandatory detention hurtles toward massive expansion, provides historical support for arguments to resurrect release.
The modern courthouse is increasingly digital, and the digital courthouse increasingly-and now predominantly-runs on software built by a single company. Tyler Technologies, a corporation based in Plano, Texas, provides basic technological infrastructure for courts in at least twenty-eight states. Its products offer gateways to, management of, and digital tools within state courthouses across the country, more than half of which now rely on at least one Tyler tool. Despite its vast footprint and sweeping significance, however, Tyler has remained largely unexplored. This Essay presents a novel analysis of Tyler Technologies. It begins by surveying Tyler's growth and product offerings. It establishes the centrality of Tyler's products to state courts, including for the litigants who navigate them, and reveals a state-court system defined by highly concentrated privatization. And it considers the implications of the judiciary's dependence on the designs, decisions, and products of a small number of large national vendors, focusing on three dimensions: access, accountability, and concentration. In short, this Essay demonstrates that Tyler is now an essential stakeholder in America's legal system. It then explores the wide-ranging ramifications of that fact-for Tyler, for courts, and for the public. In doing so, it offers a preliminary account of the effects of private vendor-provided technologies on state judicial systems.
Since Obergefell, same-sex couples have spent years litigating when, precisely, their marriages began. In disputes about spousal benefits, divorce, and parentage, state courts ask whether Obergefell requires them to reach back in time and adjudicate particular same-sex marriages as beginning before the couples within them could obtain marriage licenses, and before particular state laws would recognize them. In other words, they ask whether backdating is a constitutionally mandated remedy. They don't always agree about the answer. This Note surveys the backdating cases that have proliferated in the decade after Obergefell. It documents how state courts' different answers to the backdating question reflect normative and jurisprudential confusion about just how much retroactivity Obergefell requires-and how to determine when two people would have married, if at all. It uncovers how states' policies on common-law marriages tend to explain which state courts will backdate, and which ones will not. And it explains how those backdating cases might persist under state-law hooks in a world without Obergefell. In short: Obergefell sought to put an end to the state-by-state patchwork of same-sex marriage recognition. This Note explains one way it did not.
This Note reconstructs a historical regime that empowered inferior officers to de-cide matters of life, liberty, and property without judicial oversight. The Fugitive Slave Act of 1850 created a federal administrative apparatus that adjudicated core private rights through federal com-missioners who rendered binding, final decisions without the safeguards of Article III. The administration of this Act challenges the coherence of the modern public-rights doctrine, which purports to draw a formal line between public and private-rights adjudications. Yet the 1850 Act exposes how that distinction collapses when federal power demands. This Note demon-strates that neither the imperative-necessity nor historical-tradition exceptions can adequately jus-tify this regime within existing constitutional limits. Instead, it argues that the public-rights doc-trine has functioned less as a principled constraint on the separation of powers than as a justification that expands to accommodate the state's political needs. As courts increasingly rely on historical tradition to define constitutional boundaries in ad-ministrative law, this Note shows that historical tradition is far less clear-cut than the "Grand Nar-rative of modern administrative law suggests. It reveals that the separation between judicial and administrative power has been shaped by political necessity rather than fixed constitutional prin-ciple. The Act complicates the prevailing narratives in administrative law and originalist thought, urging a leevaluation of how constitutional meaning is constructed and state power legitimized.
This Note explores the growing problems caused by weaponized nationality. Taking China's nationality policies as a case study, the Note shows how the country selectively leverages its law banning dual citizenship to assert exclusive jurisdiction over individuals who claim other nationalities, ascribing a form of nationality that lies latent until the state chooses to recognize it. But China is not alone in such behavior. Latent nationality reflects a more global return to an imperial approach to claiming nationals that threatens state and individual rights. This Note advocates leveraging existing human-rights tools to reframe and combat latent nationality.
This Feature identifies and theorizes a distinct constitutional regime that federal courts have constructed at, adjacent to, and because of the nation's border. Drawing together strands of First, Fourth, Fifth, and Fourteenth Amendment law, along with habeas doctrine, constitutional torts, tribal sovereignty, and separation-of-powers concerns, this Feature demonstrates how constitutional guarantees systematically recede in the border's shadow. These deviations from canonical and mainstream constitutional norms authorize intrusive state invasions of privacy and other fundamental rights, abdicate judicial oversight in favor of outsized executive discretion, and entrench racial and religious subordination. The Feature further demonstrates that the effects of border exceptionalism do not remain geographically limited. Instead, the logic and tools of border exceptionalism increasingly migrate inward, shaping core doctrines in settings far outside formal border zones and impacting the lives of citizens and lawfully present noncitizens. This jurispathic diffusion can be traced through racial profiling of and diminished membership rights for Latine citizens; contracted habeas and due-process protections; the erosion of constitutional-tort remedies; and the normalization of militarized policing in mainstream doctrines with effects everywhere in the country. The result is a doctrinal migration capable of destabilizing our constitutional order writ large. Finally, this Feature situates the borderline Constitution within the broader arc of constitutional development, identifying its affinities with anticanonical cases such as Korematsu v. United States, particularly in its reliance on militarized necessity and its willingness to subordinate equality to security. Unless repudiated or decisively constrained, the borderline Constitution threatens to transform locational exceptionalism into the rule. This Feature thus concludes by providing federal courts with a roadmap for paring back border exceptionalism, consonant with the reach and rationale of other bespoke constitutional locations.
This Note examines federal-state and federal-tribe relationships through a comparison of Medicaid and the Indian Health Service (IHS). Analysis of tribal contracting and compacting documents and Medicaid state plans reflects the history of each program: Medicaid is a product of trusting federal-state collaboration, while the IHS reflects a history of distrust between tribes and executive-branch agencies in particular. This finding suggests that IHS compacting and contracting practices have significant lessons for Medicaid as the latter program negotiates with a hostile federal government.
The United States has a government-capacity crisis: it struggles to get things done with speed and at low cost. Government's incapacity has prompted a public reassessment of the country's core institutions and processes. Most relevant legal scholarship discusses problems at the federal level, but this Note is part of a growing trend that shifts the spotlight onto state and local governments. Procurement laws-and more specifically, competitive-bidding laws-that determine how and to whom government contracts are awarded are central to the state-and local-capacity crisis. By tracing the history of the country's competitive-bidding laws, this Note reveals how the broad vision of administrative discretion embodied in the laws at the country's Founding has drifted into the narrow vision that prevails today. This Note argues that two forces are primarily responsible for the drift: adversarial legalism (i.e., complex, formal rules enforceable via litigation meant to check government discretion) and cost-based efficiency (i.e., requirements that government justify its actions in quantifiable, cost-cutting terms). In order to reinvigorate government capacity, both forces must be rolled back through statutory reforms enhancing administrative discretion. In a political moment defined by public frustration about government dysfunction, this Note offers a novel approach to unstick the government's gears.
. Economic inequality stands at record levels, and constitutional law haunts egalitarian reform. In 2024, the Supreme Court decided the latest contest. Moore v. United States rebuffed an attempt to sharply limit the federal taxing power, as a razor-thin majority upheld Congress's attribution of foreign corporations' income to domestic shareholders. But four Justices criticized the reasoning of the majority, faulting its use of a fabricated doctrine. This Feature provides a systematic account of Congress's income-attribution power. It excavates overlooked litigation materials and case law from the infancy of the current federal income tax. In the 1920s and 1930s, litigants attacked, on constitutional grounds, federal taxation of trusts, corporate profits, and marital units in community-property states. The Court rejected all such challenges. It crafted a robust attribution power that allowed Congress broad discretion to tax A on income realized by B, limited only by due process. This account defends the majority's approach and its application to factual predicates beyond those in Moore. Indeed, the attribution framework allows Congress to design structural tax reform by taxing corporate earnings to shareholders. The Feature thus provides doctrinal and policy insights in an age of increasing judicial intervention in federal taxation.
Farms are places where people live their lives, sustain their families, and produce food and fiber for the wider community. Today, however, farms are becoming assets swept up into global financial channels-converting from repositories of agrarian ideals into paper playthings for the very rich. This transformation of farmland reflects broader patterns of financialization occurring across multiple elements of daily life and compounds wider crises of concentration and industrialization in agriculture. But as an active land grab unfolds across rural America, farmland's recent capture by absentee investors is especially concerning, threatening rural livelihoods, agricultural and food-system resilience, economic and spatial justice, and-in our estimation-democracy itself. In this Article, we argue that Wall Street's arrival at rural America's gate is not merely a market trend but rather the product of deep social choices governing the accumulation of investor wealth: property, corporate, and securities law. We explore the ways in which these definitional features of the American legal system-from the primacy of market logics to a range of biases that skew spatial, temporal, and social relations-create the conditions for the profound transformation now underway: the process by which farmland-a basic and essential rural resource-is being integrated into the modern capital economy. Today's rural land grab is meeting little resistance. But historically, investor-owned farmland was seen as a deep and politically motivating threat to rural life. We analyze past attempts to rein in the financialization of farmland and argue that many failed because modest doctrinal reforms provide no match for the deeper legal structures privileging profit-driven investment, even in land. Sophisticated financial actors easily maneuver to exploit definitional loopholes and other opportunities for evasion, resulting in what we frame as a pattern of "playing shell games with finance." After exploring past reforms, we turn to modern obstacles to change and conclude that, despite these ongoing challenges, opportunities still exist to address the harms that follow from financialized farmland ownership. Such reforms, however, require legal and policy frameworks that create more robust systems of democratic land governance, rural community resilience, and sustainable food production. We end with possible interventions aimed at building this more equitable and sustainable future, emphasizing movement work that democratizes rural land relations and values the deeply rooted knowledge and experience of the people who live in and care about the countryside.
. Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court's most potent instruments for declaring law. This Article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court's own insistence on history as a guide to judicial authority, this Article illuminates the growing tension between the Court's practice and its constitutional and statutory limits.
. Originally developed by the legal theorist Lon L. Fuller, eunomics is the "study of good order and workable arrangements," directed at understanding the structure, form, or ordering adopted by an area of law. Yet, unlike the ordinary analysis of institutional design, eunomics views the form adopted by an area of law as neither preordained nor wholly contingent. Instead, eunomics sees form as playing an important role in clarifying and developing the goals of an area through a means-ends interaction. This Article develops the central insights of Fuller's eunomics project for intellectual property. Until now, most theoretical accounts of intellectual property have paid surprisingly little attention to the unique structure and form that each intellectual-property regime embodies and have focused instead on justifying or explaining each regime's core substantive goals and values in the abstract. In so doing, they have neglected the crucial importance that each regime's particularized form has on the construction and realization of those values. This Article develops a eunomics-driven typology of intellectual-property forms: the appropriation form, the grant form, and the use-and-registration form. It reveals how each of these forms embodies its own normative structure, value commitments, and conception of institutional authority for lawmaking. And it shows how theorizing about intellectual property and its values remains grossly incomplete without greater engagement with each individual area's underlying structure.
In recent decades, American courts have undergone a quiet but far-reaching revolution in their function and role. Particularly in state courts facing a crush of cases in high-volume dockets for debt, eviction, and family-law matters, case-by-case judging has gradually given way to court-devised systems that govern adjudication through centralized, routinized, and often digital and data-driven practices. Cases are triaged into differentiated procedural pathways; docket calendars are engineered to shape litigant behavior; decisional aids, digital dashboards, and order templates channel the discretion exercised by judges and staff; teams of quasi-judicial officers, staff attorneys, case-management professionals, and clerks absorb tasks once thought quintessentially judicial in order to ration scarce "judicial attention"; and internal and, increasingly, digitized and even AI-based tools perform quality-control tasks once left exclusively to appellate review. The upshot is that courts pervasively mix adjudication and bureaucracy, with profound but largely unexamined implications for fair and accurate adjudication, access to justice, due process, and the production of law. This Feature surveys the managerial turn transforming American courts, tracing its roots, forms, and normative implications. An opening historical narrative situates the rise of court managerialism within a century-long arc from the New Deal to the digital age, highlighting its shifting causes and its consequences for American justice. Turning to the present, we offer a novel taxonomy of current managerial techniques that identifies the operational components of the managerial turn and synthesizes their many commonalities and interconnections. Finally, our normative and doctrinal analysis develops principles for reconciling court managerialism with classical conceptions of American courts and judges as passive, neutral adjudicators of whatever the adversarial process serves up. Can courts adopt bureaucratic tools without losing their distinctive institutional identity? Given twenty-first-century litigation realities, including the bracing fact that the majority of cases in the American civil-justice system now pit represented parties against unrepresented ones, managerial approaches will often outperform an unmediated adversary process on metrics of accuracy and efficiency. A constitutional reckoning awaits: while some parts of the new managerialism may run afoul of due process, others may be constitutionally required.
In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct. It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court's stringent "exactions" test-which requires the government to prove nexus and proportionality between development conditions and development impacts-beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision's sweeping reasoning offers no stopping point for this inversion of judicial deference to legislative judgment calls. Sheetz thus opened the door to intensified judicial scrutiny of a wide range of generally applicable legislation without engaging any of the constitutional or institutional questions relevant to such a move-and, remarkably, without encountering any pushback. We supply the missing pushback here. We suggest that the sense of inevitability driving the decision was an illusion produced and sustained through tricks of misdirected attention: deftly swapping in an invented special-purpose test for a universal constitutional directive, replacing the question addressed by the court below with one that obscured the institutional considerations at stake, scrambling the moving parts in the exactions analysis, and occluding sightlines to the established doctrinal guideposts that have long demarcated the purposes and limits of the Takings Clause. By exposing Sheetz's sleight of hand, we show how an exactions doctrine unmoored from its purported constitutional source materials accomplished a stark judicial reallocation of policy-making power across levels and branches of government.
This Note traces the evolution of patent law and exposes that patents were historically understood as a government-granted franchise right, not an unfettered property right. This reframing is important because public franchises, such as common carriers and public utilities, are subject to a common-law duty to serve the public indiscriminately and at just and reasonable prices. The Note therefore proposes that patents for essential medicines like insulin should be treated as public franchises and subject to the same duty to serve. Specifically, manufacturers and distributors of essential medicines should be obligated to ensure equitable access to their products at fair and reasonable prices. This framework of patent rights presents a novel mechanism to discipline the exercise of patents and offers a theory for addressing the crisis of high prescriptiondrug prices.
