An interstate extradition crisis is brewing. As states increasingly criminalize conduct whose protection is a core public policy of other states, such as abortion, gender-affirming care, and gun possession, it appears imminent that a governor will receive an unwelcome extradition demand. Under many circumstances, federal law requires that governors arrest and extradite fugitives upon demand of the state from which they fled. This mandate presents a grave and immediate threat to interstate comity and the rule of law. There is, however, another way forward. The states may, through collective action, provide governors the power to reject unwelcome extradition demands without running afoul of the U.S. Constitution or federal law. Surprisingly, this end run would realign extradition practice with nearly two hundred years of history and tradition. From the nation's founding until the U.S. Supreme Court decided Puerto Rico v. Branstad in 1987, the federal government declined to enforce federal extradition law. To fill this vacuum, the states created laws and practices that diverged from federal law in many ways, including allowing governors to refuse extradition demands on equitable grounds. How well did this more flexible approach work in actual practice? An original analysis of newspaper coverage of equitable extradition refusals between 1930 and 1987 reveals that governors used this power judiciously: refusing extradition rarely and typically in cases featuring extraordinary facts. Though many of these cases touched on the most polarizing issues of their time-including Black refugees from chain gangs and lynch mobs in the Jim Crow South-even the most contentious refusals engendered only muted responses. Thus, the prior state-driven regime of extradition discretion seemingly succeeded in policing itself. In a moment when the Supreme Court increasingly turns to history and tradition to interpret the Constitution, in the extradition context, the states might turn to history and tradition to circumvent it.
The National Labor Relations Act (NLRA) deteriorates due to constitutional attacks and political sabotage. As labor law buckles, its preemption regime, a keystone of U.S. labor governance, has become unsustainable. This Article argues that, to survive, labor law must flip its federal default by empowering and expanding state-level labor institutions and by prying open the NLRA preemption doctrine. Eighteen states already maintain NLRA-like statutory frameworks, and fourteen more, as a state public policy, recognize workers' rights to unionize and act collectively. These under-examined laws hint at an alternative labor governance model in lieu of the NLRA. Building on emerging preemption challenges, weaknesses in federal enforcement, and employers' own challenges to the NLRA, this Article outlines legal strategies turning retreat into opportunity. After describing the slew of state private sector labor laws, this Article uncovers a hidden labor law principle against the use of preemption arguments that create regulatory "no-man's-lands," where workers have no recourse in state or federal labor law. It also introduces a "catch-22" argument, whereby employers who deny NLRA coverage or authority cannot shield themselves from state law with preemption arguments. Then, this Article explores how emerging state labor laws utilize novel trigger mechanisms and the ways regional cooperation can signal the outlines of a bottom-up labor governance model.
Commentators have leveled trenchant critiques of collateral consequences of criminal conviction, analogizing them to a form of "civil death." This Essay develops the related concept of "civil death by a thousand cuts" in two senses. First, penalties such as voting bans or deportation after a conviction are often just the tip of the iceberg. Second, a system of farflung, intertwined civil and criminal penalties portends the death of a civil society capable of recognizing and mediating excessive penalties. Recognizing how these penalties operate-and how difficult they can be to address-is a critical step toward creating a more proportionate criminal legal system.
Every year, Child Protective Services (CPS) agencies across the United States conduct more than 2,000,000 investigations into allegations of maltreatment-investigations that are invasive, traumatic, and disproportionately concentrated in poor Black and Brown communities. And yet 84 percent of these investigations fail to substantiate the allegations that prompted them. Of those that do, the overwhelming majority identify poverty-correlated neglect rather than intentional abuse. Why, then, does American society spend billions of dollars a year on this investigative apparatus, which can cause families significant harm, with so little to show for it? This Essay introduces a novel framework for answering that question: welfare theatre. Drawing on the concept of security theatre-policies designed to produce a feeling of safety regardless of their actual effectiveness-this Essay argues that CPS investigations function as a welfare theatre: a system of agencies, practices, norms, and popular narratives that perform a collective concern for child welfare irrespective of its actual impact on the children it claims to protect or the families it targets. This Essay traces the origins of the welfare theatre to a particular political moment in which the organized abandonment of Black and Brown communities was reconstituted as a child protection imperative, and in which the tools of investigation and surveillance were substituted for structural investments that might have materially addressed the conditions now labeled as neglect. This Essay identifies three central functions of family policing's welfare theatre: communicating to the non-policed public that the government is committing its resources to doing right by its children, individualizing collective harm by scrambling structural shortcomings into parental failure, and securitizing race-class marginalized families-compelling their compliance as the theatre's objects. This Essay concludes by surveying how impacted families have already begun to break the fourth wall and by proposing legal and policy reforms to shrink the stage.
How should foundational contract law doctrines apply to corporate mergers? This Article argues that recent changes in Delaware law grant parties expansive contractual freedom to define their preferred remedies in merger agreements, untethered from the limits imposed by traditional contract law. A new provision in the Delaware corporate code, or the Delaware General Corporation Law (DGCL), permits penalty clauses in merger agreements, notwithstanding the traditional "anti-penalty doctrine" that forbids punitive liquidated damages in contracts. Delaware courts have also shown deference to specific performance provisions, treating them as presumptively enforceable commitments instead of retaining their traditional judicial discretion over the choice of remedies. Given that Delaware law governs the vast majority of major corporate transactions, these developments reflect a significant shift toward contractual freedom in merger law. Merging parties can now customize their contractual remedies with minimal judicial intervention. This Article, however, argues that such expansion of contractual freedom can carry undesirable and unanticipated risks. Allowing parties to move away from the traditional anti-penalty doctrine could lead to inflated liquidated damage provisions, including termination fees, that impede efficient dealmaking. These inflated terms can also exacerbate issues relating to information asymmetry between negotiating parties, allow managers to prioritize their own interests over those of the shareholders, and harm third parties, including competing bidders who cannot acquire the target and consumers adversely affected by the successful completion of anticompetitive mergers. To address these concerns, this Article proposes legislative and judicial solutions to mitigate the risks of relying exclusively on the transacting parties to craft merger remedies and to curb the excessive application of contractual freedom in merger law. Legislators should consider amending the DGCL to restore the traditional contract law limits that are suitable for merger transactions. Courts, for their part, could invalidate excessive or socially inefficient merger remedies and only order specific performance when they deem monetary damages to be inadequate. Together, these interventions would preserve the benefits of contractual flexibility while restraining its most distortionary effects.
From a municipal perspective, architecture and urban planning decisions dictate the presence and use of physical structures in our world. But architecture and urban planning decisions are also used to constrain and regulate the behavior of people and communities. While urban planning principles have been explored in the literature, there remains a gap between connecting urban design principles with a municipality's decision to enact urban surveillance. As this symposium contends, there is a "shadow carceral state" where carceral power exists in systems of administration and social control. This Essay argues that urban planning and architecture principles are part of the shadow carceral state and are indeed linked to the decisions to enact urban surveillance. By viewing physical and virtual geographies from a critical perspective, this Essay locates the invisible link between the design and behavioral regulation of physical space with the decision to enact virtual surveillance. This Essay situates urban surveillance enactment within the urban planning, criminology, and critical geographies scholarship. The intertwined decisions of how to structure the physical design of a community and whether to enact urban surveillance are best described by a paradigm this Essay calls "surveillance by environmental design." Instead of separating urban planning decisions from a city's decision to enact urban surveillance, this Essay argues that surveillance by environmental design is one of the primary mechanisms that has created the ever-present, all-seeing surveillance state that we live in today. The surveillance by environmental design paradigm informs us that surveillance is an essential element, and indeed inextricable from a municipality's urban design decisions, allowing us to locate the normative impacts of an urban surveillance by environmental design practice. Thus, if we are to resist the installation of surveillance technologies in our communities, we must first make visible the ways in which our architecture and urban planning principles contribute to our decisions to enact virtual carceral surveillance.
A man's home is his castle, the expression goes. It is a place where he can retreat from intrusion or prying eyes, including from the state, at least without a warrant or extenuating circumstances. At least this is what we tell ourselves. This Essay shows the falsity of this belief. A man's home may still be his castle, but his castle may as well be made of glass. The state has entered the home. And we, too, have become watchers.
Over the past decade, a number of states have attempted to lower prescription drug costs. State efforts to regulate drug prices range from price gouging laws to drug importation, pharmacy benefit manager regulations, and price transparency efforts. Prescription Drug Affordability Boards (PDABs) in particular have recently become popular, with at least twelve states having enacted PDAB legislation and seventeen more now considering the same. PDABs are state-established entities that assess the affordability of high-cost prescription drugs, and some have authority to set upper payment limits (UPLs) on those drugs. However, most of the costliest drugs that are subject to PDAB review enjoy patent and FDA market exclusivities afforded by federal law. As such, the UPLs set by PDABs have triggered concerns about preemption by the federal patent and drug regulatory regimes. In 2024, Amgen, the manufacturer of ENBREL, a drug selected for review by the Colorado PDAB, challenged the constitutionality of the Colorado PDAB. Amgen presented patent preemption as one of its key arguments, arguing that permitting a state to limit the prices of patented drugs impermissibly interferes with the design and objectives of federal patent law. While the district court dismissed the challenge for lack of standing, the case is currently on appeal to the Federal Circuit. This case presents the Federal Circuit with a rare opportunity to revisit its interpretation of the scope of patent preemption from a prior holding-Biotechnology Industry Organization v. District of Columbia (BIO v. D.C.), in which the court held that a D.C. law that prohibited the sale of patented prescription drugs at an "excessive price" was preempted because it created an unconstitutional obstacle to the rewards and incentives established by Congress under the Patent Act. This Article argues that PDABs are currently the strongest state-level intervention to address the public health crisis precipitated by high prescription drug prices-and are therefore essential. Unlike the law at issue in BIO v. D.C., PDABs afford drug manufacturers opportunities to participate in the affordability review process, and are thus intended to facilitate important public health discussion and negotiation with drug manufacturers. Additionally, because patents do not confer upon patentees the affirmative right to make, use, or sell the subject invention, much less the right to recoup a particular profit, UPLs do not conflict with the objectives and purposes of the Patent Act. States have traditionally wielded powers to protect the health, safety, and welfare of their citizens, and therefore must have the power to rectify market failures that lead to excessive drug prices in a way that can be reconciled with federal authority over patents and the national drug market. At a time when federal funding for healthcare has been all but gutted, policymakers must consider how to avoid preempting drug price reform at the state level.
One bright spot in the devastation of the COVID-19 pandemic is broader acceptance of remote work. Although disabled people are still underemployed compared to the rest of the population, they are currently working at record levels-due directly to remote work allowing more of them to enter the labor force. But significantly more disabled workers need to work remotely and are unable to secure that accommodation. Eager to "return to normal" and do away with remote work, many employers are denying remote work requests, even from disabled workers who cannot otherwise do their jobs. Historically, employers have been able to deny remote work accommodation requests with near impunity from courts, which overwhelmingly sided with employers. Courts often did so based on faulty evidentiary practices, such as assuming that only exceedingly rarely could any job be done at home. But COVID laid that assumption bare. Commentators and scholars speculate that COVID's mass remote work experiment will surely change how courts assess claims based on denying remote work accommodation requests. But is that speculation accurate? This Article presents data to answer that question. It provides empirical analysis based on all 151 federal remote work accommodation cases from 2023 and 2024. In some small respects, courts have changed their ways, but far too many are still making the same mistakes in analyzing these claims-even with all COVID has taught us. Many courts, it seems, have not learned any lessons.
Most American contract law disputes take place in the shadows, unnoticed by commentators, scholars, and casebooks. These disputes-often heard by lay judges in local courts that do not publish their opinions-account for more than 80 percent of total contract disputes. Using state-level filing data and original interviews with local court judges, this Article unearths, for the first time, this vitally important yet understudied world. Our findings provide a blueprint for new research on local courts and contract law, with wide-ranging implications for theory and practice. This Article makes three contributions to the literature. First, we identify what we call "values-driven adjudication." Through interviews, we find that local court judges know relatively little about legal concepts like unconscionability, parol evidence, and canons of construction-principles that scholars, lawyers, and students have always believed form the basis of contract law adjudication. Instead, local court judges rely on broader values of fairness, commitment to mediation, fidelity to law (as they understand the law to be), and community norms. Second, while values-driven adjudication might cause concern at first glance, we find that many of the broader ideas local judges instinctively rely on vindicate contract law's underlying values. Local judges may not know the contours of the doctrine of unconscionability, for example, but they do care that contracts are fair. They may not know that efficiency motivates some contract law doctrines, but they do attempt to mediate contract law disputes in ways that avoid appeals. Finally, we consider the wide-ranging implications of these findings for contract theory, contract design, civil justice, and judicial education, and we call for more research on this shrouded but vitally important world of local courts.
The debate over AI openness-whether to make components of an artificial intelligence system available for public inspection and modification-forces policymakers to balance innovation, democratized access, safety, and national security. By inviting startups and researchers into the fold, it enables independent oversight and inclusive collaboration. But technology giants can also use it to entrench their own power, while adversaries can use it to shortcut years and billions of dollars in building systems, like China's DeepSeek, that rival our own. How we govern AI openness today will shape the future of AI and America's role in it. Policymakers and scholars grasp the stakes of AI openness, but the debate is trapped in a flawed premise: that AI is either "open" or "closed." This dangerous oversimplification-inherited from the world of open source software-belies the complex calculus at the heart of AI openness. Unlike traditional software, AI is a composite technology built on a stack of discrete components-from compute to labor-controlled by different stakeholders with competing interests. Each component's openness is neither a binary choice nor inherently desirable. Effective governance demands a nuanced understanding of how the relative openness of each component serves some goals while undermining others. Only then can we determine the trade-offs we are willing to make and how we hope to achieve them. This Article aims to equip policymakers with the analytical toolkit to do just that. First, it introduces a novel taxonomy of "differential openness," untangling AI into its constituent components and illustrating how each one has its own spectrum of openness. Second, it uses this taxonomy to systematically analyze how each component's relative openness necessitates intricate trade-offs both within and between policy goals. Third, it operationalizes these insights by advancing a research agenda that shows how law can be analyzed and refined to support more precise configurations of component openness. AI openness is neither all or nothing nor inherently good or evil-it is a tool that must be wielded with precision if it has any hope of serving the public interest.
When violations of the Federal Constitution cause injury, 1983 provides plaintiffs with a path to seek redress. But state constitutions usually lack a 1983 analogue, leaving state courts to decide whether their state constitution contains an implied private right of action. Different courts have reached different conclusions: At last count, sixteen states had upheld an implied right of action for at least some state constitutional violations, while approximately half of the states deny that any such private right of action exists. In coming to their differing conclusions, however, virtually all of these courts agree that the availability of tort law as an alternative source of remedy is an important consideration. From there, some courts insist that common law tort claims are sufficient to vindicate state constitutional rights, and others hold they are not. This Essay makes two interventions into this debate. First, it argues that common law tort claims capture different concerns than state constitutional claims. Common law tort targets the relationship between private actors, and state constitutional tort targets the relationship between the government and its people. State constitutional torts thus have a decidedly political character. A state constitutional claim marks the wrong as a political one impacting the state-citizen relationship, and this marking serves important public purposes: It alerts the citizenry to political deprivations and it deters governments from perpetuating them. State constitutional torts should thus be understood to occupy a distinct role in any state remedial regime. Second, this Essay argues that a majority of state tort claims acts already provide a convenient framework for separating wrongs that belong in the realm of common law tort from political wrongs that belong in the state constitutional sphere. State tort claims acts are generally designed to create liability for the government as a private person, and to push all other claims- in which the government acts "governmentally"-out. This Essay argues that these "governmental" claims that fall outside state tort claims acts do not automatically revert to the world of sovereign immunity, as is typically assumed, but instead belong to the realm of state constitutional tort. In other words, rather than having significant overlap, state constitutional tort may begin where state tort claims acts end.
State recognition of de facto parentage has significantly increased over the past twenty years. Today, nearly two-thirds of states recognize some form of functional parent, either through common law doctrines, equitable doctrines, or statutes. Such recognition tracks the evolving structure of the American family and allows courts to confer standing and extend parental rights and responsibilities to functional parents who form a parental relationship with a child. Acknowledging this shift, the 2024 inaugural Restatement of the Law: Children and the Law defined de facto parents as distinct from third parties, following in the footsteps of the 2002 American Law Institute Principles of the Law of Family Dissolution, the 2017 Uniform Parentage Act, and the 2018 Uniform Nonparent Custody and Visitation Act. When state courts analyze de facto parentage claims, they face two primary questions: (1) What procedural steps should courts follow?; and (2) How do deviations in procedural requirements impact whether individuals will be successful in establishing de facto parentage? This Article makes two novel contributions to scholarship in this area by being the first to examine de facto parentage through a procedural lens. The first contribution is descriptive: Through an updated survey of recent case law analyzing de facto parentage claims, this Article links procedural mechanisms that state courts follow when adjudicating de facto parentage with their significant and underappreciated influence on whether individuals asserting de facto parentage will be successful in court. This survey reveals emerging areas of divergence amongst courts that recognize de facto parentage resulting from different procedural hurdles imposed by courts on petitioners. Building on this survey and existing wide-scale empirical legal scholarship, this Article advances the position that de facto parents should be treated as legal parents. This Article's second contribution is prescriptive: It proposes a recommended judicial framework for courts to adopt when adjudicating de facto parentage. This framework addresses the identified areas of existing divergence to better achieve uniformity in the adjudicatory process and minimize barriers facing de facto parents. Using this framework as guidance, this Article proposes recommendations for state legislatures to consider when drafting statutes recognizing de facto parentage. These recommendations protect the constitutional rights of legal parents, de facto parents, and children, and encourage courts and state legislatures to develop and codify procedures that equate de facto parentage with legal parentage.
The Fourth Circuit recently held in United States v. Brewbaker that a bid-rigging agreement between horizontal competitors who also interacted with each other vertically as manufacturer and distributor must be analyzed under the Sherman Act using the rule of reason, not the per se rule. This holding is incorrect. The general rule is that bid-rigging agreements are analyzed using the per se rule, and the vertical interaction between the Brewbaker parties outside the scope of their bid-rigging agreement should not have altered this general rule. By looking at the entire relationship between the parties to ascertain whether the per se rule or the rule of reason applied, rather than just the relationship between the parties within the allegedly anticompetitive agreement, the court ignored decades' worth of analogous precedent from other circuits and the United States Supreme Court. Further, the court ignored the fact that any procompetitive effects from the vertical interaction between the parties did not mitigate the anticompetitive effects from the horizontal bid-rigging agreement between the parties. The government typically only criminally prosecutes per se illegal schemes, so, in practice, the Brewbaker decision will lead to lower prosecution rates within the Fourth Circuit. This, in turn, will harm consumers and taxpayers who often bear the financial burden of increased costs resulting from bid rigging. Considering the country's recent antagonism towards the per se rule more broadly, there is a plausible chance that this holding will be adopted by other circuits, leading to a reckoning for the government's criminal antitrust enforcement.
The deluge of high-profile, high-stakes controversies flowing from the federal government over the past year has made it easier than ever for legal scholars and the broader public to overlook events in their own backyard. But amid federal upheaval, myriad important legal and policy developments continue to unfold at the state level. State courts have continued to issue important opinions on topics ranging from voting and redistricting,1 to education and guns,2 and to state constitutional structure.3 State and local policymakers have continued to confront vexing societal challenges involving housing, education, public safety, the environment, and
The Wisconsin Supreme Court adopted textualism in State exrel. Kalal v. Circuit Court of Dane County and, in doing so, promised an objective, text-focused approach to statutory interpretation. Yet, under this framework, the court has remained deeply divided, frequently splitting 4-3 along ideological lines-even as justices claim fidelity to textualist principles. This Comment examines how the court's reliance on malleable canons of construction, such as expressio unius and the surplusage canon, has enabled policy-driven outcomes under the guise of textualist analysis through a decontextualization process. However, since the court's ideological shift to a liberal majority in 2023, the justices have adopted an "eyes-open" approach to textualism, restraining the decontextualizing canons and prioritizing textual coherence over selective canon application. Through an analysis of key cases, including James v. Heinrich and Sojenhomer LLC v. Village of Egg Harbor, this Comment argues that the liberal majority's refined textualism mitigates the risk of judicial activism by requiring clearer triggers and stoppers for contested canons. The new majority has gone so far as to hint that Kalal may be on its last legs, though still adhering to a predominantly text-centered methodology. Ultimately, the Comment proposes legislative and judicial reforms to codify guardrails around interpretive canons in order to ensure that textualism in Wisconsin fulfills its promise of objectivity, rather than serving as a vehicle for ideological outcomes. With Kalal under threat, this Comment suggests frameworks for refining Wisconsin's textualist approach. The recent 2025 election, which cemented the liberal majority, presents a critical juncture: Wisconsin's courts can embrace a more disciplined textualist methodology or revert to the fractured, policy-laden interpretations of the past.
Delays in access to justice remain a persistent global challenge. Over the past fifty years, Canada and the United States have introduced sweeping reforms to address mounting court delays, shifting from litigant-driven adversarial models to the unorthodox approach of judge-controlled, case-managed litigation. Prioritizing judicial economy over substantive adjudication underpinned these reforms, yet delays continue to escalate. This Article argues that by positioning judges as the solution, reforms concentrated excessive managerial power in judges' hands without adequate oversight. This shift has fostered a judicial culture of complacency, where enhanced discretionary powers paradoxically prolong delays rather than resolve them. Efficiency reforms have thus altered the dynamics of delays, creating a new problem rather than solving existing ones. Drawing on decades of Canadian and American literature, this Article reveals that judicial complacency is not isolated, but rather a systemic problem deeply embedded in practice. Heightened judicial power that lacks robust accountability has become as much a part of the problem as it was intended to be the solution. By challenging prevailing silence on the judicial role in the access to justice crisis, this Article seeks to initiate a necessary conversation about how judicial conduct perpetuates delays and why rethinking accountability structures is essential for meaningful reform.
The new judicial federalism is now entering its early middle age. As it has matured-moving from rights to structure-it has become more complicated in its application. For if one were to take arguments about state experimentation and interpretive flexibility to their logical conclusion, there is no reason state legislative, executive, and judicial powers should stay in lanes demarcated by federal constitutional law. Easily amended state constitutions and elected judges support theories of judicial function more akin to statewide legislative policymakers than passive judicial magistrates. Positive rights in state constitutions would seem to demand recalibration of the rules of standing and the ranking of first- and second-order rights. The very fact that state constitutions often specify the creation, maintenance, and entrenchment of an administrative state seems to counsel a completely different theory of administrative discretion, executive power, and judicial deference than the one currently supplied by federal separation-of-powers jurisprudence. Nevertheless, many state courts continue to reflexively cite federal constitutional principles in construing the structure of their state constitutions. This Essay looks at the phenomenon of lockstepping state constitutional law to federal precedent once the question turns from rights to structure.
