A review of The Bluebook: A Uniform System of Citation. Edited by Columbia Law Review Association, Harvard Law Review Association, University of Pennsylvania Law Review and The Yale Law Journal.
The Constitution of the United States establishes a government; it also stands as the fundamental law of a people. It shapes daily life, distributes power, and sets a direction for the future. And yet when we ask about the reach and meaning of the Constitution, we are increasingly told to look backward. The answers to our future are said to lie in the past.
Fermina Daza and Florentino Ariza remained on the bridge until it was time for lunch. It was served a short while after they passed the town of Calamar on the opposite shore, which just a few years before had celebrated a perpetual fiesta and now was a ruined port with deserted streets. The only creature they saw from the boat was a woman dressed in white, signaling to them with a handkerchief. Fermina Daza could not understand why she was not picked up when she seemed so distressed, but the Captain explained that she was the ghost of a drowned woman whose deceptive signals were intended to lure ships off course into the dangerous whirlpools along the other bank. They passed so close that Fermina Daza saw her in sharp detail in the sunlight, and she had no doubt that she did not exist, but her face seemed familiar.1
A review of Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. By David Enrich.
There is a sharp discontinuity between the second Trump Administration’s electricity policies and those of previous presidential administrations. President Trump has directed the Department of Energy to use statutory authority designed for wartime conditions and sudden emergencies to prevent electric utilities from retiring aging coal plants. In doing so, he has elevated the president’s role in electric-grid governance and reduced the primacy of the expert regulatory agency—the Federal Energy Regulatory Commission—that Congress authorized to govern electricity markets and grid reliability. This Essay places these actions in historical context. It recounts the executive branch’s role in electricity policy during the first part of the twentieth century, when the federal government responded to wartime crises by building new electricity supplies and actively managing existing electricity infrastructure. While these early and mid-twentieth century executive actions may superficially resemble present-day events, they were profoundly different. Even amid the urgency of wartime, the executive branch was laying the foundation for an integrated grid managed by expert government agencies, not through direct presidential decrees, and it was working for technological progress, not regression. Building on this history, this Essay then explains why the present-day shift from expert agencies to presidential power in electric-grid governance matters. The most obvious reason is that it will carry heavy financial and environmental costs to consumers and the nation. But the increased assertion of presidential power in electric-grid governance also has doctrinal significance in light of recent developments in Supreme Court jurisprudence governing statutory interpretation and presidential use of emergency authorities.
A review of Secrets of the Killing State: The Untold Story of Lethal Injection. By Corinna Barrett Lain.
A review of No Democracy Lasts Forever: How the Constitution Threatens the United States. By Erwin Chemerinsky.
A review of The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North. By Michelle Adams.
A review of The Migrant’s Jail: An American History of Mass Incarceration. By Brianna Nofil.
Do employers have constitutional rights of expressive association? Two decades ago, in Boy Scouts of America v. Dale, the Supreme Court held that a state law prohibiting discrimination based on sexual orientation could not be applied to a membership organization that wished to exclude a gay leader. Today, courts face a rising tide of claims from employers, who argue that Dale constitutionally insulates their hiring and firing decisions from antidiscrimination law. A narrow majority of courts have denied such claims, holding that Dale does not apply at work. Increasingly, however, courts are siding with these employers, eliding any distinction between membership organizations and workplaces. Across the board, courts have failed to provide a coherent justification for their decisions. This Article makes the case that membership and employment diverge along both expressive and associational dimensions. Employment comes apart from membership in its distribution of material resources, reliance on coercive authority, and integration of a diverse polity. We trace these distinctions through work law and uncover their presence within First Amendment doctrine, sometimes openly stated, but often more subtly invoked. Put together, they support a presumption against extending the right of expressive association to the relationship between an employer and its employees.
A review of Waters of the United States: POTUS, SCOTUS, WOTUS, and the Politics of a National Resource. By Royal C. Gardner.
Many Americans are worrying about whether they will soon be living in a postdemocracy autocracy. But in the meantime, they may already be living in a crypto-fueled kleptocracy. Less than one year into his second presidential term, Donald Trump has reportedly taken his wealth to new heights by embracing, both as a businessman and a politician, the crypto industry. Trump’s family businesses are involved in minting Trump-themed meme coins, creating America- themed stablecoins, and mining crypto assets—so successfully that most of Trump’s wealth is likely now from crypto, not real estate. All the while, the Trump Administration is rolling back crypto regulations, abandoning ongoing crypto prosecutions, and pardoning crypto criminals. But this Essay is ultimately not about Trump. Crypto creates new channels for public corruption that operate on autopilot, generating wealth without transactions, contracts, or promises for the law to easily pin down, prevent, or punish. Future politicians looking to convert public trust into private fortune need only follow this new playbook: Adoption is cheap, monitoring is hard, and payouts can be tremendous. President Trump’s second term makes vivid the potential for abuse, but the dangers won’t end there. If the United States fails to adapt, we risk entrenching a twenty-first-century kleptocracy in which the boundary between political power and personal enrichment is no longer blurred—it is erased.
A review of The Digital Fourth Amendment: Privacy and Policing in Our Online World. By Orin Kerr.
A review of Lawyer Nation: The Past, Present, and Future of the American Legal Profession. By Ray Brescia and a review of Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret. By W. Bradley Wendel.
A review of In Covid’s Wake: How Our Politics Failed Us. By Stephen Macedo and Frances Lee.
A review of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. By Leah Litman.
To address climate change, our energy systems need to transition from fossil fuels to clean energy resources. There is a tendency to think this transition will occur in a linear, seamless progression: We will move from the (old) fossil fuel system at Time A to a (new) clean energy system at Time B. But this belies the reality that an energy transition involves not just building a new energy system, but also unwinding an old one. Crucially, both processes will take time. That means there will be a significant period in which both energy systems coexist. In the engineering literature, this period is called "the mid-transition." Identifying the mid-transition is important because it poses unique design challenges: An engineer would design an energy system based on fossil fuels one way, a system based on clean energy resources a second way, and a system based on a mix of both an entirely different, third way. This Article identifies and analyzes a similar phenomenon in the law-what it calls the "legal mid-transition." In the context of the energy transition, the legal mid-transition describes the period when two different legal frameworks-one designed for the (old) fossil fuel system and one designed for a (new) clean energy system-coexist. This unique period resembles neither the law as it existed prior to the transition nor the law as it will come to be after the transition. It also poses distinct challenges. During this time, our energy laws are bifurcated and unstable, making it more difficult to ensure safe, reliable, and affordable energy services. The system is also at risk of "maladaptations," or legal responses that address the challenges of the legal mid-transition in the short term but, in the long term, stall the law in the mid-transition. Additionally, the period is prone to "accountability problems," or the concern that failures that occur during this period will be incorrectly attributed to the new clean energy laws, leading to misguided efforts to roll back the energy transition. How we respond to the challenges of the legal mid-transition may be the difference between a successful energy transition and no transition at all. This Article uses the energy transition to develop a granular model of the legal mid- transition. It then uses insights from this model to propose solutions designed to respond to the specific challenges of this period. But the model is not intended to be confined to the energy transition. The legal mid-transition describes the phenomenon of legal change more broadly. Particularly at a time when much of the law is influx, the framework developed here can be used by scholars to analyze legal transitions in other fields that present similar dynamics.
