How We Prosecute the Police

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host […]

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The Public Interest Class Action

Public interest lawyers often bring large-scale cases against government defendants for injunctive relief as class actions. Until recently, their class certification motions routinely succeeded, enabling plaintiffs to obtain sweeping remedies that have required fundamental reforms to government policies and practices. In recent years, however, the procedural law regulating the public interest class action has changed […]

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In Praise of All or Nothing Dichotomous Categories: Why Antitrust Law Should Reject the Quick Look

All contracts “restrain trade” in some sense, but section 1 of the Sherman Act bans only those that restrain trade “unreasonably.” Restraints are unreasonable, in turn, if they create or maintain market power without producing offsetting efficiencies. Such agreements divert resources to less valuable uses and thus reduce society’s wealth. […]

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Privilege

In this Article, I describe how Holmes, Hohfeld, and other legal realists deployed the jural character of the privilege status to debunk the libertarian narratives of “classical legal thought.” I then present three doctrinal areas in which contemporary American legal discourse seems to ignore these realist analytics by mistaking the privilege status for a private […]

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Narrowing Supreme Court Precedent from Below

Lower courts supposedly follow Supreme Court precedent—but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent courts of appeals’ decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice—which I call “narrowing from […]

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Corporate Social Responsibility in the Arctic

The Arctic is a homeland to many diverse indigenous communities with distinct histories, cultures, and livelihoods. Yet the communities all share a unique relationship with the Arctic, and they closely depend on the Arctic environment and their ability to reside on their traditional lands for cultural and economic survival. According to the Arctic Human Development […]

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The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm

Since the Supreme Court’s opinion in Baker v. Carr, the political question doctrine has been viewed as consisting of textual and prudential factors. How these interrelate, and which type of factors to favor if these clash, has led to considerable confusion. In the recent case of Zivotofsky ex rel. Zivotofsky v. Clinton, Chief Justice Roberts […]

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Concocting the Most Insignificant Office Ever Contrived: The Vice Presidency During the Early Republic

John Adams was exasperated. The United States was caught in the middle of escalating tensions between Great Britain and France, and Adams believed himself powerless to help. In a letter to his wife, Abigail, Adams blamed his sense of impotence on his position as the nation’s first vice president—a role he castigated as “the most […]

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