Native Americans pay taxes. Territories, by contrast, tax in place of the federal government. Both live with the legacy of American imperialism. Both seek the elusive fiscal self-governance and autonomy promised by Congress. The Supreme Court-through preemption, the plenary power doctrine, and interpretive principles-has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By contrast, territorial residents pay no federal or state taxes on territorially sourced income by edicts of Congress and geography. But such tax exemption enabled the creation of incentive regimes that have only invited more criticism as entrenching subordination. This Article argues that the conceptual underpinnings of the divergent tax treatment of tribes and territories are unsound. Under a more robust vision of fiscal autonomy, judicial limits on Native tax sovereignty are misguided. The territories' wide latitude in designing revenue streams merits increased scrutiny. While imperfect, a uniform, nonrefundable federal income-tax credit for tribal and territorial taxes paid is a promising path forward. This Article thus provides the first systematic study of subfederal taxation beyond states and localities-the "other" American taxation often overlooked in scholarship.
Courts and scholars have long disagreed about whether arbitrators follow the law. It is difficult, however, to assess whether arbitration is lawless. For one, the process is private, usually confidential, and often generates unreasoned unwritten awards. In addition, determining whether an arbitrator decided a case "correctly" is highly subjective. Thus, the literature on point relies on crude proxies such as surveys of arbitrators, the frequency with which judges vacate awards, and arbitral citation practices. This Piece offers a different perspective. During the 2010s, it was unclear whether an arbitration provision that did not mention class actions allowed such procedures. But in 2019, the Supreme Court tried to resolve this issue by holding in Lamps Plus, Inc. v. Varela that the parties must affirmatively authorize class arbitration and that neither "silence" nor "ambiguity" suffices to allow the same. Lamps Plus created a proving ground for comparing judges and arbitrators because both types of decisionmakers engage in "clause construction" (determining whether an arbitration clause allows class procedures), and the American Arbitration Association requires its awards on the topic to be reasoned and published. This Piece capitalizes on this window by assembling a dataset of recent court opinions and arbitral awards. It discovers that judges generally read Lamps Plus as establishing a bright line rule that generic arbitration clauses function as class waivers, but 27% of arbitrators found a tacit agreement to allow class procedures. The Piece then explores the implications of its findings for the lawlessness hypothesis.
In recent years, the Supreme Court has developed a robust antidiscrimination principle rooted in the Free Exercise Clause that commands that generally available public benefits may not be denied to religious organizations because of their religious sought to extend this principle to Oklahoma's public charter school program, arguing that excluding a Catholic school from the program amounted to denial of a generally available public benefit. In a split decision released without an opinion, the Supreme Court declined to extend the antidiscrimination principle to this new context. This Comment argues that the same antibalkanization concerns that have motivated the Court's previous racial equality decisions may explain the outcome in St. Isidore and provide a possible line of argument for future state litigants seeking to maintain the secular nature of public schooling. Just as concerns with racial isolation have been sufficiently compelling to maintain limited affirmative action programs in racial equality cases, this Comment argues that avoiding religious friction and maintaining the social-cohering function of public schools provides a compelling interest in excluding religious schools from state public school systems.
Food is a powerful drug. Big companies have pumped meals full of addictive substances that keep people hooked on unhealthy foods at the expense of their health. Modern scientific research has demonstrated that hyper-palatable foods have the same neurological effects as other addictive substances. Given that unbridled consumption of food can have serious health effects, food addiction is a dangerous illness. Despite these deleterious impacts, the industry often evades robust regulation or liability. Instead, states have shielded Big Food from liability. Twenty-six states have passed statutes, called Commonsense Consumption Acts (CCAs), that bar the private regulation of Big Food through food-addiction tort and consumer protection lawsuits. These statutes suffer from two main flaws. First, they are scientifically unfounded. They espouse untrue and harmful positions on food addiction's relationship with personal choice. Second, they inappropriately foreclose judicial consideration of food addiction. This limits plaintiffs' ability to seek redress for real harms and prevents judicial validation of food addiction. Most of the statutes hinder both tort and unfair and deceptive acts or practices claims alleging obesity-related harms, preventing the issue from being properly litigated. Food addiction should be given its day in court. CCAs should be amended to accord with modern science, track public sentiment, allow for plaintiffs to receive redress, and vitiate judicial consideration of food addiction.
Black farm ownership has declined by more than 90% since the 1920s, making it one of the starkest yet least examined examples of racial injustice in American history. This Essay argues that these losses are not the product of isolated discriminatory acts, but the consequence of a durable agricultural oligarchy: a system of concentrated economic, political, and cultural power that has structured American agriculture since the antebellum era. By tracing this oligarchic order across slavery, Reconstruction, Jim Crow, and modern agribusiness, the Essay situates the struggles of Black farmers within the constitutional and political economy dimensions of American governance. In so doing, this Essay makes three contributions to legal scholarship. First, it reframes the exploitation, land expropriation, and erasure of Black farmers as constitutional failures to guarantee republican government by permitting oligarchic control of land, credit, and markets. Second, it links the Pigford v. Glickman settlements to recent federal initiatives, including the American Rescue Plan Act and the Inflation Reduction Act, revealing persistent resistance to redistributive agricultural reform. Third, it critiques Wynn v. Vilsack and related cases, showing how colorblind constitutionalism entrenches oligarchic power and impedes remedies for systemic inequities. Building on the USDA Equity Commission's 2024 recommendations, the Essay advances a structural framework for combining race-conscious and class-based reforms that address historical injustice while navigating constitutional limits. By situating agricultural discrimination within the broader problem of oligarchic power, the Essay highlights the stakes of agricultural equity for constitutional theory, democratic governance, and racial justice.
Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent's capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent-based regulation that have been identified within myriad domains, the Article identifies a systemic crisis of consent that has unsettled not only regimes of private ordering but also constitutional democracy and global governance. The Article offers a typology of legal strategies available to those who wish to shore up specific types of consent or accommodate their failure. And it raises the question whether such strategies are enough to enable effective cooperation, protect vulnerable parties, and vindicate the values consent is meant to serve.
This Piece examines the deployment of Title VI of the Civil Rights Act of 1964 as a mechanism for regulating campus conflict following the 2023 to 2024 campus protests and seeks to reset the discourse in light of the statute's history, doctrine, and role in higher education. Title VI is an important tool for addressing identity-based harassment, epithets, and violence between students, but it is neither designed nor effective as a tool for negotiating clashes between universities' cornerstone commitments to robust debate and an optimal learning environment for all students. In converting the statute from a source of protection against discrimination based on race, color, and national origin, including shared ancestry, to a punitive instrument for disciplining and controlling campuses around the country, the current Administration is unprecedented in its use of Title VI, which is not only ahistorical and in defiance of the statute's terms but also unworkable under hostile environment doctrine. For universities tempted to turn to Title VI for managing campus conflicts, this Piece shows that Title VI's compliance regime is ill-suited for producing flourishing and sustainable campus environments for several reasons, including the First Amendment limits on universities' ability to restrict harmful speech. Against this backdrop, the Piece argues that schools have a responsibility to carry out Title VI compliance within broader efforts to build community citizenship, including conflict deescalation and informal conflict-resolution processes. In short, the inclusionary aims of Title VI will be achieved best not by enforcement alone but as part of a broader commitment to a thriving campus.
In 1901, the Supreme Court held that the United States could control territorial land possessions indefinitely, without plans to eventually grant statehood. Over the next twenty-one years, the Court handed down what are infamously known as the Insular Cases: a series of decisions that reaffirmed the distinctions between "incorporated territories"-those destined for statehood-and "unincorporated territories," the fates of which remained unclear. Artificially distinguishing these two types of territories, the Insular Cases carved out certain provisions of the U.S. Constitution that would not extend to the unincorporated territories. In reaching this conclusion, the Court created the territorial incorporation doctrine: the judicial means by which to incorporate (or limit) constitutional rights in the unincorporated territories. While the incorporation of constitutional rights against the unincorporated territories has largely stalled over the last century, incorporation of such rights against the states has emerged and solidified itself as an ever-expanding doctrine under the Fourteenth Amendment. Thus, as selective incorporation continues to march forward, rights now applicable against the states remain inapplicable against the territories- an asymmetrical result that propagates colonial attitudes, permits disparate treatment, and denies U.S. citizens in the unincorporated territories the full significance of their citizenship. This asymmetry is the "territorial incorporation gap." This Note aims to bridge that gap by arguing that the Seventh Amendment's civil jury trial right should be incorporated in Puerto Rico. To that end, this Note proposes an unlikely and reluctant solution: judicial application of the territorial incorporation doctrine, the lasting vestige of the rightly maligned Insular Cases.
This Essay identifies mechanisms by which the law regulates access to marriage for adults with intellectual disabilities, exploring how statutes and court decisions give meaning to the concept of "capacity to marry."The Essay identifies two previously unstudied and contradictory understandings of the relationship between marriage and capacity. One notion of "capacity to marry" operates to exclude adults with intellectual disabilities from marriage based on lack of capacity. Cases grounded in this view reveal that capacity determinations can be a vessel for subjective opinions about disability and the status of marriage, considering factors such as prior romantic and sexual history, financial decision-making, and ability to care for oneself independently. These cases show how capacity requirements can prohibit or limit nonconforming individuals-especially those who rely on external sources of support- from marrying. In contrast, a second notion of capacity conceives of marriage as capacity enhancing. Under this view, a court may decline to impose a guardianship in part because of an existing marriage. This view of capacity focuses more on the power and strength of human relationships. Building on the second notion-that marital relationships can be capacity enhancing-the Essay conceives of supported decision-making as a means of rendering marriage more accessible to people with intellectual disabilities while also recasting the institution of marriage from one focused on two self-sufficient individuals to one that celebrates human interdependence and connection.
Medicare Advantage insurers hold vast power over access to care for Medicare beneficiaries enrolled in their plans. Among other things, these insurers make the all-important determination as to whether care is "medically necessary" and thus warrants coverage under Medicare. Recently, these insurers have turned to artificial intelligence to help with these determinations. This trend has yielded concerning results, exacerbating both inaccuracy and opacity in the coverage determination process. This Note describes the current state of determinations. Taking an outcomes-focused approach, it argues that the government must demand greater information sharing from Medicare Advantage insurers and enhance beneficiaries' access to the appeals process. Such reforms are an important first step in ensuring beneficiaries have access to the care they are entitled to.
Police departments nationwide train their officers to assume that a member of the community is armed using the "characteristics of an armed person" (CAP) framework. This framework, composed of multiple characteristics that ostensibly allow police to determine whether a person is carrying a handgun, has become a pseudoscientific justification for stopand-frisk. The CAP framework is a form of proactive policing: patrolling to find potential crime and preempt or stop it rather than responding to crime after it is reported. Such tactics lead to a myriad of legal and social problems, including racialized harassment, widespread distrust of police, This Article examines the CAP framework, using the Baltimore Police Department's (BPD) implementation of this framework as a case study. The BPD's CAP training is so superficial and broad that nearly everyone exhibits the targeted characteristics. Everything from turning one's body or touching one's waistband to wearing an untucked shirt can give an officer cause to conclude a person might be armed. In effect, the CAP framework gives officers unbridled discretion to frisk whomever they choose and functions as a tool for racialized harassment. This Article argues that the CAP framework cannot provide legal justification for stops and frisks, especially post-New York State Rifle & Pistol Ass'n v. Bruen. This Article likewise argues that use of the CAP framework as a proactive policing tactic violates the Fourth Amendment.
Following the Delaware Court of Chancery's invalidation of Elon Musk's fiftysix-billion-dollar compensation package, Tesla moved its incorporation from Delaware to Texas. Shortly thereafter, Delaware's legislature, seeking to protect Delaware's dominant incorporation position, passed the most sweeping corporate law amendments in fifty years. Both supporters of Musk and defenders of Delaware's judiciary have accused each other of partisanship, but neither side has addressed the central question: What is the role of specialized corporate courts? This Essay presents a novel theory of why such courts are necessary. Corporate disputes are distinct because they arise within ongoing relationships between shareholders and management, governed by incomplete contracts. To address managerial disloyalty or incompetence, shareholders can replace managers or sue for breaches of fiduciary duties. In this dynamic, courts become third-party participants in these incomplete contracts when they decide which claims merit judicial intervention, and which do not. Judicial review in corporate law thus culminates in claim-dismissal specialization. The business judgment rule, this Essay reveals, is designed to enable specialized courts to limit intervention to conflicts of interest while referring mismanagement cases to shareholders. This Essay demonstrates that Delaware's judiciary has largely fulfilled its intended role while highlighting the constraints it faces regarding both shareholders and legislatures in correcting errors. Meanwhile, with its recent home reincorporation in Texas, Tesla can gain insulation from hostile takeovers and activism, prioritizing long-term business strategies and the broader community. Finally, this Essay provides the policy blueprint for over twenty other states that have already adopted specialized corporate courts.
Over the past decade, dozens of state and local jurisdictions across the country and political spectrum have ended fines and fees in juvenile courts. One monetary sanction, however, is routinely left out of reform efforts: victim restitution. Unlike most fines and fees, youth restitution-paid to victims or harmed parties for economic loss or injury-continues to enjoy wide support, under the assumption that it promotes youth rehabilitation, deters harmful behavior, and makes harmed persons whole. But does restitution, particularly in juvenile court, deliver on its promises? This Article illustrates how restitution functions in practice and, in doing so, sheds light on an often-overlooked corner of the juvenile system. Analyzing original data, composed of hundreds of records gathered from public record requests sent to 117 entities that handle youth restitution orders in California's fifty-eight counties, including juvenile courts, this Article finds no evidence that youth restitution achieves any of its purported goals. First, imposing restitution burdens youth with insurmountable debt, which undercuts opportunities for accountability and rehabilitation. Second, ordering youth to pay restitution exacerbates harm and incen tivizes harmful behavior, particularly for low-income and Black and brown youth, rather than deterring crime. Third, because virtually none of the youth ordered to pay restitution can do so, the people they harm do not receive timely or adequate compensation. Building on these findings, this Article offers a path forward that focuses on policy reforms that better address harm and promote healing of both harmed parties and system-involved youth.
A new specter is haunting job seekers in the post-COVID-19 economy: "ghost jobs," which are job listings by real companies advertising positions that do not actually exist or for which there is no present intention to hire. Ghost jobs do not simply waste the time and money of job applicants. They also reflect a new evolution in the harvesting and misuse of sensitive personal data, which inflicts privacy wounds on individuals while breaching the modern social contract on which the digital economy runs. Ghost jobs also distort the economic data that inform critical nationwide policy decisions, such as the setting of federal interest rates. Nonetheless, the prevailing view is that ghost jobs, while regrettable, do not run afoul of any U.S. law. This Piece challenges that notion, arguing that ghost jobs violate the consumer protection mandates of the Federal Trade Commission Act. The FTC should use its enforcement authority over unfair and deceptive consumer practices to exorcise ghost jobs from the online hiring landscape. This Piece offers a roadmap for doing so.
Antitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite such "interlocking directorates" being illegal under antitrust law. Many of these individuals are senior directors at private equity, venture capital, and other firms investing in the competing firms on whose boards they sit. We rely on a proprietary dataset used by investment firms that identifies actual competitors, rather than just adjacent firms in the same industry. But the same individual sitting on two competing boards isn't the only problem. We are the first to show the prevalence across public and private companies of a related problem-two different individuals sitting on competitors' boards while simultaneously working at the same investment fund. We show that such investorlevel interlocks are more common than individual interlocks, yet their prevalence was, until now, unknown. About 13% of the companies for which we have the best board data had either an individual or investor-level interlocking board. Individual and investor-level interlocking boards can harm competition and innovation. We propose either applying existing antitrust laws more vigorously or reforming the law to reach these investor interlocks.
We commonly call the last fifty years of federalIndian law and policy the "tribal self-determination era." This Piece argues that this era is actually three conceptually distinct though temporally overlapping phases of federalIndian law and policy development. Each of these three distinct phases is a step further dismantling the structures of federal paternalism and replacing them with laws and policies that support tribal nations' strength, capacity, and autonomy. Paternalism has become, therefore, somewhat of an anti-North Star for the transformative federal Indian policies of the last fifty years and can continue to serve as that anti-guiding light for further federal Indian law and policy development. What makes this era challenging and noteworthy is that it is characterized by an instance of something unusual and difficult for a government: a commitment to giving up power. Now this commitment is at a crossroads. The Biden Administration championed a third phase of policies with traditionally conservative, small government-minded commitments to start shrinking federal government bloat and promoting deference to or cooperation with local tribal decisionmaking. The Trump Administration must decide between conservative impulses to continue this work of shrinking unnecessary federal bureaucracy or more authoritarian impulses to increase the control that funding gives the executive branch over entities like tribal nations that rely on that funding. [Indians'] foremost plight is our transparency. People can tell just by looking at us what we want, what should be done to help us, how we feel, and what a 'real'Indian is really like ... . In so many ways, Indian people are re-examining themselves in an effort to redefine a new social structure for their people. Tribes are reordering their priorities to account for the obvious discrepancies between their goals and the goals whites have defined for them. - Vine Deloria Jr.1
The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress's directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the reasoning employed by the FTC's opponents, already adopted by a district court, could affect thousands of rules regulating matters from bank powers to air quality. This Article carefully examines the challenge to the FTC's general rulemaking power and rebuts it. Through meticulous reconstruction of the FTC's history, it shows how judges and legislators transformed the FTC into a modern rulemaking agency in the 1970s and built an entire rulemaking apparatus into the FTC Act. It further shows that this is not a special case: Judges and legislators have long approached these provisions using ordinary principles of statutory interpretation. The current attack on their scope often employs the language of restraint. But it is narrowing the FTC's power that would mark a radical departure from administrative law principles, upending over fifty years of settled understandings about the meaning of the word "rules" as employed by legislators across the U.S. Code.
This Piece responds to The New Abortion by Dov Fox and Mary Ziegler by critically examining their legal history of in vitro fertilization (IVF) regulation and their proposals for federal regulation to stave off regressive regulation. First, while admiring the value of their historical analysis, this Piece challenges the authors to delve more deeply into the internal dynamics of reproductive rights advocacy during the twentieth century to better understand the implications of race and class divisions in the mainstream reproductive rights movement's leadership. Second, it rejects the authors' legislative recommendations as politically na & iuml;ve and insufficiently attentive to the race, class, and gender dynamics that have long shaped reproductive regulation in the United States. Drawing on the history of stratified reproduction and the emergence of the reproductive justice movement, this Piece argues that IVF is unlikely to face the same legal fate as abortion due to its association with privileged, predominantly white, presumed heterosexual, and married users. It critiques the authors' call for federal regulation as both impractical and potentially harmful, especially under a political regime hostile to reproductive autonomy. Instead, this Piece advocates for a more nuanced, justice-centered approach that resists exceptionalism in regulating assisted reproduction and centers the needs of marginalized communities. It warns against repeating the mistakes of mainstream abortion advocacy, which often prioritized legal access over equitable outcomes. Ultimately, this Piece calls for bold, inclusive leadership and state-based strategies that reflect the lived realities of those most affected by reproductive injustice.
The right to have your day in court is foundational to the U.S. criminal legal system. Yet, many noncitizens in immigration detention facing criminal charges are denied this right when ICE routinely fails to produce immigration detainees to criminal court to resolve charges. In immigration proceedings, immigration judges regularly use those unresolved charges to detain and deport. This Article is the first to examine this obstruction of court access and its implications-a particularly imperative study as recent executive and congressional proclamations foretell a gross expansion of the number of individuals in immigration detention with pending criminal charges. Immigration obstruction of court access occurs because of an accountability deficit: Neither the immigration jailor nor criminal prosecutor suffers consequences for obstructing court access, and thus the accountability deficit falls on the noncitizen defendant. This Article posits the following three implications. First, noncitizen defendants suffer constitutional criminal procedure violations when obstructed from accessing criminal proceedings. Second, noncitizen defendants are harmed in immigration proceedings because the unresolved criminal charge is used to detain and deport them, perpetuating a cycle of obstruction. Finally, noncitizen defendants' rights are in even greater jeopardy because the jailor and prosecutor are the same entity in the immigration apparatus and are further commingled with the judge. This Article proposes to close the deficit by assigning accountability to criminal and immigration enforcement actors through a two-pronged remedy: dismissal of charges on the criminal side and prohibiting use of the pending charge to detain or deport on the immigration side.
In an era of reckoning and resistance, this Symposium Piece journeys through the rich terrain of Black protest and Afrofuturist imagination, uncovering a radical legal tradition rooted in historical defiance and visionary possibility. By analyzing Black resistance-from insurrections against slavery to today's racial justice movements- through an Afrofuturist lens, it identifies three key dimensions of Black protest in the United States: perversion, subversion, and revolution. The Piece begins by contextualizing Black protest within the founding contradiction of American freedom-a nation proclaiming liberty while bound to the yoke of slavery. It charts the evolution of protest rights in early American jurisprudence, revealing how legal interpretations narrowed those rights, particularly for Black Americans. From there, it turns to the philosophical foundations of Black protest, highlighting the right of revolution and the moral duty to resist injustice. The seeds of Afrofuturist thought emerge in the writings of nineteenth-century Black activists like David Walker, Martin R. Delany, and Frederick Douglass, who envisioned alternative futures centered on Black liberation. As these visions unfold, the Piece connects the Black radical protest tradition to modern movements like Black Lives Matter, highlighting Afrofuturism's role in reimagining law, society, and racial justice. By combining legal analysis, historical research, and literary criticism, this Piece reveals a distinctly Black radical vision of protest law-one that frames protest as not merely a right but a moral imperative. Ultimately, it contends that protest is more than a catalyst for change. It is the heartbeat of democratic society.
