Retail trading platforms increasingly incorporate "gamified" elements that encourage more frequent trading. These "gamified" elements include banners, nudges, badges, streaks, confetti animations, push notifications, and trade prompts. While these design choices help reduce barriers for new investors and have grown in popularity by providing easy, mobile-first access to financial markets, they also raise concerns about exploiting behavioral biases to increase the retail trading platforms' profits. This issue is especially pertinent under Payment for Order Flow (PFOF) structures, in which broker-dealers benefit from higher trade volumes rather than strictly focusing on providing best execution for their clients. To better educate retail investors of these risks, this Note proposes a disclosure-based framework that mandates that broker-dealers reveal the principal factors driving each recommendation or nudge. By relying on explainable AI methods- namely, approximated Shapley values-to highlight the variables steering trading prompts, regulators can empower investors to make more informed decisions without imposing blanket restrictions. While some challenges like protecting trade secrets, managing smaller-firm compliance costs, avoiding information overload, and targeted transparency, are likely to remain, this solution safeguards retail investors while maintaining an open, competitive marketplace.
Over the last few decades, uniform rules have come to govern only a fraction of cases in state courts. Instead, pleading standards vary by case type, discovery limits hinge on amount in controversy, and rules flex based on party type, representation status, and other factors. Quietly, tailored procedures have come to dominate state court civil litigation, impacting millions of cases each year-from consumer debt to personal injury to complex commercial. This Article analyzes the rise of tailored procedures in state courts and the implications for access to justice, separation of powers, and court legitimacy. Through a case study of Arizona's procedural evolution that draws on an original dataset of over 6,600 administrative and rulemaking orders, I trace how such tailoring developed, create a typology that can serve as a menu of design options for courts, and evaluate tailoring's tradeoffs. Without transsubstantivity as a rulemaking backstop in state courts, I also propose three new safeguards to ensure that tailored rules maximize benefits and minimize harms: proportional design, reason-giving, and iterative review. Tailoring, however, is about more than just gains and losses in fairness or accuracy. It is about a profound shift in who makes procedure and the goals it might achieve. As state courts have centralized authority and expanded their use of tailoring, they have displaced local rulemaking and narrowed judicial discretion. As rulemakers have grown more ambitious, they have expanded the values that procedure has traditionally advanced. These shifts raise important questions about who should make what procedure, the relationship between procedure and substance, and the role of courts in society.
This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period's enactment of written constitutions and innovation in the separation of powers, this Article argues that the first "textualist" turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation. Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric "science" of legal interpretation. Scalia's new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively-laying groundwork for the rise of judicial supremacy that would follow.
Election administration in the United States is fragmented. Instead of having one uniform system, each state governs elections under distinct rules and hierarchies. Yet, one feature remains consistent among the fifty systems: Each is led by a "chief election official." Though some states rely on boards, most vest this authority in a single person---what this Article calls a "unitary chief election official." The unitary chief election official wields immense power. They enjoy unilateral authority to render decisions affecting voter registration, voting equipment, access to voting, ballot access, ballot measures, election counting and certification, and election official training, among other things. What is seemingly a procedural office can accordingly be used to impact substantive electoral outcomes. Because of this, subversive partisan actors have made increasing attempts over the years to co-opt the position, viewing it as a means to legally sway elections in their party's favor. Despite their significance, unitary chief election officials remain relatively underdiscussed in the literature. Questions remain about the precise extent of their authority, as well as what mechanisms exist to ensure that abusive officials can be held to account. This Article therefore makes a first, detailed attempt to answer these questions. To begin, the Article provides a descriptive account of the breadth of powers that the average unitary chief election official enjoys. It draws upon the election codes of eleven states to do this. Next, the Article considers how to best construct an accountability regime that insulates the office from partisan manipulation. Through the lens of democracy theory, the Article concludes that we should deemphasize electoral accountability, as truly neutral chief election officials must answer to democratic principles rather than popular whims. Furthermore, we should treat ex-post forms of accountability, such as lawsuits, as secondary fail-safe options rather than as primary ones. On the other hand, we should channel more resources to ex-ante legal and internal modes of accountability. By reframing accountability for unitary chief election officials, this Article offers a path to shielding the office from undue partisan capture and, in turn, strengthening the democratic process.
Prices for consumer goods as wide-ranging and essential as groceries, over-thecounter drugs, and rental housing are now commonly set by automated algorithmic systems, which process enormous volumes of data to rapidly adjust prices in response to market conditions. Antitrust regulators have raised concerns that these systems can be used, intentionally or inadvertently, to facilitate anticompetitive collusion, ultimately harming consumers by raising prices and reducing competition on the merits. In this Note, I argue that the imposition of a collusion framework designed around human behavior is misguided, and that algorithmic systems should instead be analyzed in terms of their structural characteristics. By thinking of pricing algorithms in terms of traits like strategic commitment, the scope of data use, and platform intermediation, regulators can better understand the true extent of algorithm-driven pricing harms and design more effective, targeted regulations to address them.
State constitutions promise what the federal Constitution does not: affirmative guarantees of democratic participation, among a broad array of positive rights. But state courts tasked with enforcing those rights routinely fail to properly engage with their constitutions, defaulting instead to the federal judiciary's clause-isolation and tiered scrutiny. The result is a methodological mismatch that allows state legislatures, many of them elected by a plurality or minority of their state's voters, to erode democratic rights unchecked. This Note argues that the Michigan Supreme Court charted an independent path in Mothering Justice v. Attorney General, where it struck down an unaccountable legislature's gutting of two voter-initiated laws by reasoning holistically about Michigan's constitutional commitment to democracy. Drawing on the work of Professors Bulman-Pozen and Seifter-who identified the democracy principle as a synthesis of state constitutional commitments to popular sovereignty, majority rule, and political equality; proposed democratic proportionality review, which asks whether the burdens a law places on democratic participation are proportionate to and justified by the government's legitimate objective, as an alternative to federal methods; and coined the term "methodological lockstepping" to describe the problem-this Note uses Mothering Justice as a prototype of the judicial application of a new framework. Upon the foundation that Mothering Justice laid, this Note constructs a three-part doctrinal test: (1) assess the strength of the state constitution's commitment to the democracy principle; (2) balance the burden on a democratic right against the legislature's justification for imposing it; and (3) craft a "remedy-plus" that resolves the immediate dispute while establishing prospective safeguards against recurrence. Applied to voter identification laws and partisan gerrymandering, the test reveals at once its range and its aim: to equip state courts with a structured, state-grounded framework for curbing legislatures that have themselves sought to limit the sovereignty and power of the very people who elect them and whose rights their constitutions enshrine.
In the past ten years, jurisdictions across the United States have witnessed an explosion of fossil-fuel-industry-backed laws targeting anti-pipeline and anti-critical infrastructure protestors. In passing these laws, state legislators throughout the country have sought to criminally punish activists who dissent against the construction of infrastructure sites atop their homes and in their neighborhoods. These activists resist a trend in which local governments designate their communities as "sacrifice zones." In these areas, local governments allow companies to build polluting industries and facilities that subject residents to severe health and safety risks. Because these infrastructure sites disproportionately displace and harm communities of color, some have deemed this practice "the new Jim Crow" and have argued that it functions as a relic of slavery. In cracking down on these communities' opposition to the creation of sacrifice zones, state legislatures and the oil and gas industry silence Black- and Indigenous-led racial justice movements across the country.
Since the Tax Revolt of the 1970s, cash-strapped state and local governments have increasingly relied on user fees to pay for public programs. Scholars attuned to city budgets have raised alarms about these fees: They undermine government's redistributive role, impose regressive costs, and exclude low-income people from vital public services. This Article complicates these prevailing claims based on a first-of-its-kind study of user fee policies in a sample of American cities. The Article reveals that policymakers regularly call on a progressive tool to reduce fees' harms: fee waivers. As implemented, user fees are thus more redistributive than the standard understanding of them has allowed. But they are also more complex. The survey finds that fee waiver eligibility rules are patchwork, burdensome, and narrowly targeted. User fee rules form a multifaceted tapestry of exclusion and protection, deprivation and generosity. The Article also sounds a clarion call: User fees' protective features are not guaranteed. Without adequate defense, fee waivers risk succumbing to external attack from those who would outlaw them. Without adequate scrutiny, they risk falling victim to their own internal design flaws. The Article addresses these risks by offering reform principles drawn from model programs surveyed across the country. Mayors, city councils, school boards, and state legislatures can use this Article as a playbook to inform the design of user fees that raise revenue while protecting vulnerable American households.
The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity. This Article surfaces the understudied and undertheorized private prosecutions of the family regulation system and situates them within the carceral state. Drawing on sources including statutes, legislative history, case law, accounts developed by other scholars, information obtained through records requests, and interviews with practitioners and state officials, it sketches out the legal framework for these prosecutions and traces recurring patterns of use. This study reveals private prosecutions to be a tool of last resort: Private individuals opt to prosecute their loved ones or even themselves after the state has failed to meet their needs through other means.
Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP's terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and offers a set of concrete proposals for reforming IP through expanding and adapting its terminal rules. Finally, the Article considers what lessons, if any, traditional property law might learn from how IP ends.
In January 2024, the United States made landmark regulatory updates under the Native American Graves Protection and Repatriation Act (NAGPRA) amidst intensifying scrutiny on human remains stewardship and calls for repatriation. Museums across the United States and United Kingdom currently hold hundreds of thousands of human remains in their collections, many of which were acquired through colonial exploitation, thefts of cultural heritage, grave robbing, and other unethical acquisitions from marginalized communities. The dark history of these collections and their perpetuation of harm to marginalized communities necessitates improved mechanisms for human remains repatriation. This Note examines the current state of museum human remains policies and makes the case for improved regulations and social sanctions. Museums across the United States and United Kingdom implement a wide range of policies for human remains stewardship, and the analysis of four key case studies the American Museum of Natural History, the Denver Museum of Nature and Science, the British Museum, and the Manchester Museum demonstrates the need for interventions to facilitate the return of human remains. Specifically, the learnings from these case studies highlight the need for public pressure and improved regulations that carry concrete mandates, are enforced, and address key regulatory gaps.
Nearly sixty years after the passage of the Fair Housing Act (FHA), racial segregation, housing discrimination, and consequent disparities in health and opportunity stubbornly persist. Yet the Department of Housing and Urban Development has made limited use of the FHA's most powerful provision: its mandate to affirmatively further fair housing. In recent years, new barriers to meeting this mandate emerged. Still, affirmatively furthering fair housing remains constitutionally viable and urgently necessary, even in the face of shifting equal protection doctrine. This Note begins by tracing the contested meaning of "affirmatively furthering fair housing" in the courts and executive branch. It then examines how Students for Fair Admissions v. Harvard creates new constitutional roadblocks to governments seeking to affirmatively further fair housing today. In response, this Note proposes a process for crafting race-conscious policy within the many constraints of current equal protection jurisprudence. Finally, it outlines an application of this process to affirmatively furthering fair housing. By doing so, this Note reaffirms the continued need for affirmatively furthering fair housing, the continued possibility of this work in the face of constitutional changes, and specific avenues forward for state and federal actors dedicated to building "truly integrated and balanced living patterns."
Flawed software costs businesses and consumers millions of dollars every year, but existing tort law does not generally require developers to compensate others for economic injuries caused by bad code. Discontented scholars and policy analysts have produced an array of proposals that would force developers to pay for harms flowing from vulnerabilities that hackers exploit to injure software users. This basic model which would impose a duty on developers to eliminate security-related vulnerabilities but not other types of software flaws dominates legislative and academic debates about reform. This Note argues that this focus is misconceived. It is technically ambiguous, doctrinally anomalous, and would throw national security and consumer welfare goals into conflict. Liability proponents have focused on it because they recognize that imposing new duties on software developers must realistically be limited in some way. Although the vulnerability-based limitation is ultimately misguided, this Note proposes that a party-based limitation restricting recovery to parties in near-privity is more defensible. Focusing on party-based limitations on duty instead of a vulnerability-based limitation would require thinking of software development not as a product, but rather as a professional practice subject to malpractice-like standards. This reframing, I argue, better aligns proposals for expanding software developers' duties with existing tort doctrine while focusing a liability evaluation on the most important aspects of the software development process.
Today, civilians can participate in war as never before. Through smartphones and the internet, civilians can now contribute directly to military operations, whether they are in an active conflict zone or on the other side of the globe. A civilian can, for example, use an app to help military forces intercept threats, join a virtual network of volunteers that conduct cyberoperations against a party to an armed conflict, or use a crowdfunding site to donate funds to provide weapons to combatants. We call this revolution in war fighting "Crowdsourced War." This Article identifies this growing phenomenon, demonstrates how it creates extraordinary new risks for civilians, and recommends critical steps that States like the United States must take to address those risks. In the wake of the September 11, 2001, attacks on the United States, new interpretations of the law governing armed conflict took shape. Applying these new interpretations to Crowdsourced War, this Article shows how civilians today may unknowingly forfeit their protected status and be regarded as legitimate military objectives under international law. Civilians participating in Crowdsourced War not only unwittingly endanger themselves, they also endanger civilians living and working alongside them. The spread of Crowdsourced War can also lead combatants to suspect all civilians of being participants in war and thus lawful targets. To address these problems, we argue it is time to adopt new rules for Crowdsourced War. States, including the United States, should revisit broad interpretations of the law first adopted for a different kind of conflict interpretations that now make vast numbers of civilians newly vulnerable. States must also take greater responsibility when they invite civilians to participate in Crowdsourced War, including by ensuring that they do not put civilians at unnecessary risk and by informing them of the consequences they may face. Finally, international humanitarian law must be revised to account for this sea change in the way wars are fought. The International Committee for the Red Cross, together with States like the United States that are committed to the rule of law, should renew efforts to tighten standards for targeting civilians. This is necessary to ensure that the era of Crowdsourced War does not become the era in which the distinction between civilian and combatant completely evaporates.
Unpaid internships in the federal government operate under a statutory and regulatory regime unlike any other in American employment law. The Fair Labor Standards Act (FLSA) constrains internships that are hosted by nonfederal entities. The FLSA applies to the United States as an employer, but in practice, it has proven almost entirely irrelevant to federal unpaid internships, which instead owe their form to the interaction of appropriations law, the Antideficiency Act's voluntary service prohibition, and 5 U.S.C. 3111, which authorizes "student volunteer" service at federal agencies under strict, enumerated conditions. This Note the first comprehensive doctrinal and statutory account of federal unpaid internships argues that the federal government's legal authority to host unpaid interns is both narrower and more rigid than commonly understood. The Note first contextualizes federal "student volunteer" programs within the broader economy of unpaid internships, tracing the evolution of these programs and identifying how education-based exceptions have redefined the permissible boundaries of intern labor. It then turns to the federal sector, where legal authority to accept voluntary service depends on a statutory scheme that expressly bars compensation and classifies interns as non-employees for nearly all legal purposes. The Note synthesizes this landscape into a clear legal test for when unpaid internships in federal agencies are lawful. Yet even lawful unpaid internships present profound problems. This Note identifies structural inequities, legal accountability gaps, and governance blind spots that arise when federal agencies rely on unpaid student labor. Because these issues are entrenched in federal statute, they are impervious to litigation or state-based reform. Accordingly, this Note concludes with legislative solutions to fix a Congressionally created quagmire that only Congress can properly fix.
Fast-growing startups in search of capital and liquidity have traditionally sought to exit the private capital market through M&A or IPO. Until recently, antitrust enforcers rarely challenged startup acquisitions. But under the Biden administration, enforcers worried about the growing dominance of Big Tech sued to block more startup deals. Since antitrust restricts M&A but not IPOs, one might expect that greater antitrust enforcement would cause startups to substitute one kind of exit for another, leading to more IPOs. That did not happen. While M&A and IPOs both provide liquidity, they are not perfect substitutes. We model heterogeneity in M&A and IPO pricing to explore how increased antitrust enforcement impacts venture capital. Economies of scale and scope, synergies, regulatory costs, market power, and market cyclicality can cause IPO valuations to fall significantly below M&A prices. And heightened antitrust scrutiny can reduce the value of an IPO by undermining one of its main advantages: access to publicly traded equity that can be used as currency for future acquisitions. In this Article, we show how startups have responded to the antitrust crackdown not by choosing a different exit but by choosing no exit. Startups are easing liquidity pressure by letting employees cash out their shares in tender offers. Venture capitalists are extending their exit horizons by forming continuation funds. Would-be acquirers have developed new structures to evade antitrust law, such as the centaur a private company funded by public company cash flows and the reverse acquihire a mass employee exodus from a startup to a public tech company, coupled with a cloaked payoff to the startup's investors. We explain the implications of these changes for competition policy, capital formation, and the continuing erosion of transparency into socially important businesses.
The Trump Administration's assault on the administrative state has received significant attention. But it is a mistake to interpret the weakening of the administrative state during the first or second Trump Administration as exceptional, or as a cyclical, asymmetric phenomenon that characterizes Republican administrations. Rather, we are in the midst of a period of secular decline of the American state, albeit one that has become more acute in the second Trump Administration. This Article outlines fifteen dynamics in American politics, law, policy, and society that all push in the direction of secular decline. Some of these dynamics have been at play for decades, contributing to the already comparatively weak American state. Others are recently emergent or systemic features of decline. The consequences of decline are significant: a rise in harms to consumers, increased economic instability, less innovation, weakened resilience in crises, weakening global power and the rise of the power of adversaries, and social fracturing within society. Disrupting decline will require not just a commitment to building state capacity but understanding and accepting the uncomfortable truth that many of the causes of state decline have been longstanding.
