In their article Give Parents the Vote, Kleinfeld and Sachs argue that we ought to give parents extra votes to cast by proxy on behalf of their minor children. In this response, I argue that their proposal misconceives the nature of voting itself. Unlike a child's personal medical or financial decisions, which we entrust to those most responsible for a child's care, voting is a collective act by which a political community makes collective choices. Each of us is obligated to cast our vote in the way we think best for the whole community. And each voter-whether a parent or a nonparent-is morally and constitutionally entitled to an equal vote. At the same time, it is true that those under age 18 are often not especially well represented in our current system. Empirical evidence suggests that high school students are as able to vote as young adults. So rather than giving extra votes to their parents, I argue that we ought to let teenagers vote.
Many of America's most significant policy problems, from failing schools to the aftershocks of COVID shutdowns to national debt to climate change, share a common factor: the weak political power of children. Children are twenty-three percent of all citizens; they have distinct interests; and they already count for electoral districting. But because they lack the maturity to vote for themselves, their interests don't count proportionally at the polls. The result is policy that observably disserves children's interests and violates a deep principle of democratic fairness: that citizens, through voting, can make political power respond to their interests. Yet there's a fix. We should entrust children's interests in the voting booth to the same people we entrust with those interests everywhere else: their parents. Voting parents should be able to cast proxy ballots on behalf of their minor children. So should the court-appointed guardians of those who can't vote due to mental incapacity. This proposal would be pragmatically feasible, constitutionally permissible, and breathtakingly significant: perhaps no single intervention would, at a stroke, more profoundly alter the incentives of American parties and politicians. And, crucially, it would be entirely a matter of state law. Giving parents the vote is a reform that any state can adopt, both for its own elections and for its representation in Congress and the Electoral College.
This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile "flip-flops"-as the Justices sometimes call them-by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG's credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility. To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court's 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government's litigating position have become more common in recent decades-but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG's unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government's understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive. These insights are particularly important today, given the Justices' willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies' ability to update or modify policies. The Court's decision in Loper sources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single "best" answers-and, once ascertained, the meaning of the law is fixed. As we show, the Justices' reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court's skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated-by virtue of democratic accountability and on-the-ground experience-to consider the tradeoffs between stability and change.
Fictional policy justifications for official negligence are regularly accepted by the federal courts to shield the federal government from liability for ordinary tortious wrongdoing. The lower federal courts have adopted an extravagant interpretation of the discretionary function exception to the Federal Tort Claims Act that applies whenever a policy implication can be theorized. Under this "susceptible to policy analysis" approach, the United States government escapes accountability through after-the-fact speculation regarding policy factors that could have played a role (but actually did not) in the harmful government conduct. By textual command, the exception shields only government decisions "based on," that is, causally linked to, a "discretionary function," a term of art that means an actual policy judgment. Moreover, the purpose of the exception is to prevent judicial second-guessing of public policy decisions made by the federal government. But the risk of judicial intrusion into the realm of policymaking vanishes when government officials have exercised no policy judgment. The promise of the FTCA in waiving federal sovereign immunity for common law torts is being suffocated beneath a blanket of immunity stretched to cover not only genuine policy choices, but also the conjectures of government lawyers about a policy ensemble that could have been fashioned. New empirical evidence confirms that the government almost invariably prevails in the new regime of hypothetical policy creep. Garden-variety miscarriages of public safety are transmuted into imaginary policy reflections, leaving victims of carelessness to bear their own losses.
It is no secret that equity is a central part of corporate law. Yet a fuller appreciation of what equity means for corporate law is still lacking. This Article offers a new account of corporate law's equity, showing that it is a kind of meta-law-or law about law-that operates ex post to address polycentric problems, conflicting rights, and opportunism. As we argue, much of the structure of corporate law-its architecture-is explained by the need for a robust equity that can intervene where needed, while also avoiding the dangers of unconstrained judicial discretion. Corporate law maintains a careful balance, one that constantly updates, to avoid both pitfalls. Efforts to strike that balance explain various features of corporate law, including fiduciary duties, the business judgment rule, derivative litigation, the doctrine of independent legal significance, different standards of review, and even the way corporate law has changed. As we will show, this account also offers something importantly different from conventional theories of corporate law, such as the nexus of contracts approach. Focusing on the equity in corporate law gives us a distinctive picture of both corporate law and its evolution.
The major questions doctrine, which requires agencies claiming important powers to identify clear authority from Congress, is transforming administrative law. Breaking with recent practice, the doctrine prevents the executive branch from issuing laws addressing pressing, novel issues without Congress's affirmative consent. In response, scholars have generally criticized the doctrine and questioned its legitimacy. Critics have alleged that the doctrine was fabricated by the Supreme Court without proper justification, is incapable of principled application, frustrates the intent of past Congresses to delegate broad power to agencies, aggrandizes judicial power, and hinders desirable executive branch lawmaking. This Article disagrees with those criticisms and defends the major questions doctrine. It offers five arguments-though more are possible. First, the doctrine appropriately enforces Article I's requirement that Congress (not others) legislate on "important" subjects. Second, the doctrine is a straightforward application of longstanding constitutional avoidance. Third, within a textualist analysis, the doctrine reflects how readers would expect important powers to be delegated. Fourth, the major questions doctrine has deeper historical roots than most admit and is capable of continued incremental, common-law-style implementation. Finally, under a functionalist approach, the doctrine promotes a healthy balance of power within the federal government, preserves federalism, and protects the rule of law.
Conventional wisdom says that Article III's case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases. This is only partially correct. This Article shows conditions under which a federal court may answer questions even when not deciding a case. To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary. For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases. In England, the "case stated" procedure facilitated this; in the United States, the Judiciary Act of 1802 created the certificate of division that allowed circuit courts to send questions to the Supreme Court. These examples provide strong evidence that the Article III judicial power, as understood in 1789, included the ability to answer legal questions even when not deciding cases, at least when two conditions jointly hold. First, the answer must help a different federal court decide a pending case. Second, the judges may answer only the questions asked; they cannot choose different questions they would rather answer, even if such questions are part of the case. This history and theory have immediate implications for the current Supreme Court's appellate docket. By rule, the Court limits review to preselected questions, and the Justices frequently add or subtract questions to manipulate the docket so that the Justices may address the issues that interest them, leaving other questions that are integral to the case unanswered. Thus, the Court frequently answers questions without deciding the larger cases on the merits. This raises the question of whether Justices may give these answers and remain within Article III's limits on the judicial power.
Although laypeople commonly believe that a judge's job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently "runs out,"leaving the judge to decide the case on extralegal grounds. This Article subjects that consensus to critical scrutiny. Tentatively, the Article concludes that none of the alleged sources of indeterminacy in the law-including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty-actually causes the law to run out. More confidently, the Article maintains that the extent to which the law runs out, if it does at all, depends on difficult issues in the philosophy of law, language, and value-issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution. Casting doubt on the notion that the law runs out has important implications for judicial ethics, the scope of Auer deference and other legal doctrines, and adjacent scholarly debates such as the debate over the interpretation-construction distinction.
Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the former while screening out the latter. However, the problem for trade secret law is that, in a variety of contexts, it is incredibly difficult to know whether the underlying information is beneficial or harmful to society, and thus whether the information should be disclosed, without first disclosing and scrutinizing it. This is trade secrecy's information paradox: it is hard to know whether a trade secret should be protected without first revealing it. This information paradox implicates numerous social interests, including the environment, public health, criminal law, and the success of the regulatory state. It is at the heart of recent concerns about potentially biased bail and sentencing algorithms, environmentally harmful fracking chemicals, and disparate hiring practices. Yet as is the case with many paradoxes, trade secrecy's information paradox cannot easily be solved, at least with any politically feasible set of tools. Unlike other areas of intellectual property, traditional tools (i.e., doctrinal and costly screens) will do little to sort socially harmful trade secrets from socially beneficial ones-leaving piecemeal, contextualized limits on trade secrecy the most viable path forward, at least for the foreseeable future.
Joshua Kleinfeld and Stephen Sachs make a significant contribution to the literature on children's disenfranchisement by describing and defending parental proxy voting: empowering parents to vote on their children's behalf. The authors' democratic critique of the status quo is particularly persuasive. Children's exclusion from the franchise indeed distorts public policies by omitting children's preferences from the set that policymakers consider. However, Kleinfeld and Sachs's proposal wouldn't do enough to correct this distortion. This is because contemporary parents diverge politically from their children, holding, on average, substantially more conservative views. The proxy votes that parents cast for their children would thus often conflict with the children's actual desires. Fortunately, there's an alternative policy that would fix more of the bias caused by disenfranchising children: young adult proxy voting. Under this approach, children's votes would be allocated not to their parents but rather to young adults-the cohort of adults closest in age to children. Young adults, unlike parents, are highly politically similar to children. At present, for example, both young adults and children are quite liberal. So, to revise Kleinfeld and Sachs's thesis, if we want children to be adequately represented at the polls, we should give young adults the vote.
From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary. Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also blind to economics. We challenge the fundamental precepts that market incentives suffice and that liability inevitably brings detrimental chilling effects. By tracing the legal origins of platform immunity and synthesizing decades of legal and economic research, we show how judges and lawmakers have consistently applied shallow or misguided economic reasoning. Their misconceptions rely on an outdated depiction of economics and a narrow view of efficiency. Once updated for key factors such as platforms' financial incentives to allow bad actors and the feasibility of platforms deploying automated monitoring technologies to prevent harms, economics fails to justify a broad shield against liability. Instead, economics offers a promising roadmap for holding platforms accountable for their harms while preserving their social benefits. Designing a better liability framework is increasingly important as advances in artificial intelligence accelerate technology's presence in our everyday lives, creating unpredictable opportunities for bad actors to weaponize platforms. Anchoring platform liability more effectively in economic reasoning will help create a more adaptive legal framework that keeps pace with the future.
In a string of recent opinions, Justice Gorsuch and Justice Thomas have posited that postconviction relief upon a writ of habeas corpus was historically unavailable except where the judgment of conviction was issued by a court lacking jurisdiction. In light of this history, Justices Gorsuch and Thomas have argued for a reconsideration of the modern scope of the writ, which generally allows for relitigation of alleged constitutional error in the course of criminal trial. This Article argues thatJustices Gorsuch and Thomas have the history half right. They are correct to assert that a valid judgment of conviction was a sufficient answer to the habeas inquiry. They are mistaken, however, on three fronts. First, a want of jurisdiction was not the lone circumstance where a judgment of conviction was insufficient cause for confinement. Rather, a petitioner was entitled to relief whenever the custodian could not provide the court with "due process of law" justifying detention-"due process" not in the modern sense of the phrase, but as in lawful writs and precepts duly issued forth from a court of law. The jurisdiction of a convicting court was relevant because a judgment issued in excess of jurisdiction was void. Where a prisoner was held under a void judgment, it was as if they were held under no judgment at all. In this way, such petitioners stood in the same position as one subject to arbitrary detention by an executive officer. Second, insofar as Justices Gorsuch and Thomas are using "jurisdiction" in its modern sense, their assertion that postconviction habeas relief was unavailable except for a want of jurisdiction is anachronistic. Eighteenth-and nineteenth-century jurists spoke of "jurisdiction" in a broader sense, as in "the power of a sovereign to affect the rights of persons," a notion not limited to exercise of the judicial power. Jurisdiction could be analyzed through a variety of different, nonexclusive vectors. One vector particularly relevant to the habeas inquiry was "jurisdiction over the process"-power to issue particular writs and precepts, a power which could have various subject-matter, territorial, and personal limitations, many of which were constitutionally prescribed. This concept has been almost completely overlooked in the habeas literature. Third, a want of jurisdiction was not the only condition that would render a judgment void ab initio. To give judgment is a volitional act. Thus, the traditional vices of the will-fraud and duress-could also render a judgment void. But when such cases finally came before the Supreme Court, consistent with the realist jurisprudence of the early twentieth century, the Justices described such circumstances as "denials of due process" rather than questions of the general law of judgments. This conceptual error, while harmless at first, eventually led to the total erosion of traditional habeas doctrine. In light of this history, this Article concludes that the problem with modern habeas practice is not so much the breadth of inquiry, but the manner in which it proceeds. A habeas court has no power of vacatur over a final judgment of conviction, as it would were the judgment brought before it on a writ of error or on an appeal. Much like judicial review of statutes, a habeas court's only power is to recognize what has already been done by operation of law.
Why can't federal law define "violence"? Major federal statutes turn on whether someone was convicted of a violent crime. But judges and scholars widely agree that the law defining violence is "chaos." This Article treats the problem as one of statutory design and construction. What's violent is a fact-based judgment call-it's a standard meant to be interpreted case by case through factfinding and adjudication. But Supreme Court jurisprudence increasingly treats it like a rule, insisting that courts must define violence without the facts and discretion that would give that interpretation coherence across countless unique cases. Chaos is not inevitable. Predicate statutes like the federal violence definitions have been ubiquitous in American law for centuries without doctrinal disaster. This Article learns from their example. They mostly do not, as some scholars and Justices have proposed, ask juries to judge predicates. Instead, most predicate laws list which crimes qualify, an approach federal violence law followed for thirty years before Congress quietly changed to defining violence abstractly in the 1980s. Congress should return to listing violent crimes and could further reduce confusion by adopting existing state laws that list which crimes in their jurisdiction are violent. In the meantime, the Supreme Court should loosen its rigid interpretive rules and give federal judges more flexibility to judge violence sensibly. Leading scholars and Supreme Court textualists have assumed that criminal law's greatest problem is discretion-especially prosecutorial discretion-and have urged making crime definitions more rule-like, focused on the "real" conduct legislatures mean to prohibit. Federal violence doctrine offers an object lesson in why that approach fails. Crimes are standards, and discretion is necessary to interpret them across thousands of unpredictable fact patterns. Criminal procedure constrains that discretion by distributing it across many interpreters-law enforcement, prosecutors, defense attorneys, defendants, judges, and juries-within a broader network of laws, procedures, policies, and norms. Longstanding debates about rules versus standards have missed this sort of "distributed discretion,"but it makes discretionary judgments like violence-and crimes-make sense.
For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer's 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is "clear" and "beyond a reasonable doubt." But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century acolytes systematically checked to determine the accuracy of his historical account or discover whether those rules really did become widely accepted and deeply rooted in American legal practice, mostly relying instead upon Thayer's say-so. Meanwhile, some prominent historians have disputed his account of the history, and many leading originalists have disputed different elements of Thayer's thesis, some disagreeing with the presumption of constitutionality, others the clear error rule, and still others the reasonable doubt standard. My thesis is that over the course of America's first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. Indeed, I aim to show that by Thayer's time, the presumption of constitutionality, clear error rule, and reasonable doubt standard had become a widely accepted (if not always practiced), liquidated understanding of the meaning of the judicial power. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the "Thayerian" "rules of administration" associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. Through a systematic exploration of two kinds of sources-over forty nineteenth-century legal treatises, dictionaries, encyclopedias, constitutional law casebooks, and manuals of federal practice, on the one hand, and decisions of the U.S. Supreme Court and hundreds of decisions by state supreme courts from 1780 to 1900 on the other-I attempt to not only demonstrate the fact of that broad consensus in the late nineteenth century, but show how that consensus and its underlying rationale developed from the American Founding to just after the Civil War. I show that two decisions in particular-the Dred Scott decision in 1857 and the Civil Rights Cases in 1883-had a strong impact upon both treatise writers and state supreme courts in the direction of greater judicial restraint, especially the acceptance of the reasonable doubt standard. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly lost history of judicial restraint, I argue that during America's first century, through the "discussions" in legal treatises and the "adjudications" in all the country's apex courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution's standard of review, though "more or less obscure and equivocal" in 1787, appears to have been fixed or "liquidated" by the end of the nineteenth century.
The Supreme Court relies increasingly on anticlassification rules to implement the Constitution's various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text-so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, "dormant" Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests as "commonsense,"citing their administrability and mechanical quality as safeguards against problematic judicial discretion. This Article challenges this account of anticlassification rules as simple and transparent. It draws extensively on conceptual tools from the philosophy of language to elucidate the inherent complications and internal tensions of the doctrine. Defining and drawing bounds around categories such as "race" and "content discrimination," for example, cannot be done without a theory of what philosophers of language call "natural kinds"and "social kinds." Yet when courts identify instances of impermissible categories in legal text, they tend to fluctuate erratically between semantic and communicative theories of meaning. A careful examination of these, and other, hidden premises of anticlassification clarifies apparent doctrinal inconsistencies. Absent a systematic theorizing of such difficulties, anticlassification rules cannot be coherently or consistently applied. Reckoning with these difficulties suggests that the Court's main normative justifications for anticlassification have a narrower reach than commonly appreciated.
The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in party briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never firmly relied upon the rule of lenity-the substantive canon most often raised in briefs and at argument-to justify a narrow construction over the entire ten-Term period. Instead, the Court's rationale in these cases tended to be "ad hoc," in the sense that the Court based its narrow reading only on statute-specific ordinary-meaning analysis. That approach may be motivated by textualist suspicion of substantive canons or a desire to maximize interpretive discretion in future cases involving penal statutes. Whatever its cause, the Court's ad hoc approach has large-scale implications that perpetuate the enactment, enforcement, and interpretation of penal statutes in an expansive manner-undermining the rule of law by systematically increasing discretion for various actors who administer criminal law.
