Across the post-Dobbs United States, reports of pregnant people battling infections as severe as sepsis, experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news. Because of state abortion bans’ lack of clarity about medical exceptions and the overall chilling effect on abortion care, many patients are being denied the emergency care that they need or are being forced to wait until they are knocking on death’s door before medical staff can treat them. Healthcare professionals who work in states with criminal abortion bans face an impossible scenario that scholars have termed the “double abortion bind”: the impossible choice between, on the one hand, providing patients with emergency lifesaving abortions and facing potential criminal liability for violating their state’s abortion ban and, on the other hand, not providing emergency abortions and potentially losing their patients and facing medical malpractice claims for violating the standard of care. Litigators nationwide are fighting in state courts to clarify the medical exceptions in abortion bans. This Note asks what role tort claims—specifically, medical malpractice suits—can play in the area of emergency abortion access. Can torts realistically provide useful legal recourse for impacted patients and apply new pressure on healthcare industry actors to widen emergency abortion access?

Across the United States, immigrants held in for-profit detention centers participate, willingly or through degrees of coercion, in a work program that pays one dollar per day. For decades, the courts affirmed the legality of this practice and swiftly dismissed claims that participants in the program qualified for worker protections. But in the past decade, litigators, advocates, and academics have partnered with detained workers to successfully challenge the legality of these labor schemes, most recently scoring a unanimous victory at the Supreme Court. This Note outlines the various causes of action to claim workers’ rights in private immigration detention, particularly the under-researched but successful state law claims. Drawing on lessons learned from litigation across the country, this Note identifies obstacles to and opportunities for ending the exploitation of detained workers.

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim’s personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity—that is, making themselves and their information harder to find. This Article exposes privacy law’s complicity in this phenomenon of “brokered abuse.” Today, victims seeking obscurity can ask data brokers to remove their online information. But a web of privacy laws props up a fragmented and opaque system that forces victims to navigate potentially hundreds of distinct opt-out processes, wait months for their information to be removed, and then repeat this process continuously to ensure their information doesn’t resurface. In response, this Article proposes a new regulatory regime premised on a transformative reallocation of responsibility. In short, it proposes a techno-legal system that would enable victims to obscure their information across all data brokers with a single request, redistributing the burden away from victims and onto brokers. Such a system is justified, feasible, and constitutional.

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

This Article provides the first comprehensive account of the reconstruction of energy tax law that has occurred in the 2020s. In the past, federal energy policy offered carrots and sticks aimed selectively at specific sources of emissions (e.g., power plants) and specific green alternatives (e.g., solar and wind), even as academics urged the use of universal sticks like a carbon tax. But Congress has now charted a new path: performance-based carrots, or tax credits for any zero-emission energy technology (subject to certain politically driven exclusions). The only way to implement universal, performance-based carrots is to estimate the carbon intensity of every subsidy applicant. This is the task of carbon accounting. The Article makes two main arguments about the emergence of carbon accounting inside tax law. First, carbon accounting is surprisingly well suited to tax law because it will be informed by tax law’s experience with parallel normative and analytical principles, including a comprehensive tax base, additionality, liability shifting, and rate blending. But second, just as the income tax is susceptible to “tax shelters,” so too will firms develop “carbon shelters” that qualify for green subsidies while covertly making use of high-emission energy. Because of the difficulty of anticipating every carbon shelter in advance, an antishelter strategy needs deliberately over-broad anti-abuse rules, including some modeled on similar rules from tax law. If policymakers are to avoid inadvertently subsidizing unlimited emissions, they must be prepared to compromise on the principle of technology neutrality that motivates performance-based carrots in the first place.

To comply with the colorblind impulses of American antidiscrimination law, computer programmers tend to exclude race as a data input when constructing a machine learning algorithm. Yet scholars and advocates consistently argue that even these formally race-blind algorithms can racially discriminate by relying on so-called “proxies for race,” or variables that have a strong correlation with race, such as zip code, income, or prior criminal arrest. While a programmer wishing to respond to this argument might attempt to remove both race and all racial proxies from input data, their task is complicated by a key dilemma: The definition of a racial proxy is far from obvious. This Article examines the myriad definitions of a racial proxy proffered by courts, scholars, and state and private actors to demonstrate how race and racial assumptions become embedded in the machine learning algorithms that increasingly structure human life. Ultimately, what is at stake in the ability to define a racial proxy is a novel form of algorithmically driven racial construction, which permits the production of new and meaningful classes of individuals that can later be exposed to differing resources, opportunities, subordination, and privilege.

The doctrinal landscape of internet-based personal jurisdiction is increasingly incoherent. Rules designed for a world of print and physical presence struggle to account for the realities of digital communication. Courts have treated virality and even conversational tagging, such as an @-mention of a forum resident, as evidence that a speaker purposefully directed their speech into that state. When speech alone is treated as the jurisdictional contact, nonresident defendants can be haled into distant courts they never expected, and lawful expression is chilled. By connecting personal jurisdiction fairness principles to First Amendment “chilling effect” principles, this Note offers a new framework for jurisdiction in the digital age—one that reflects the realities of online interaction and guards against litigation being used as a tool to silence critics.

Commercial activities, like selling a car or serving hot coffee, can generate a risk of loss to which multiple individuals are exposed. When burdens and losses are distributed across multiple stakeholders, when should negligence law tolerate or condemn the risky choice? A famous answer at the center of the first-year curriculum invokes the Hand formula: The failure to avoid a risk is negligent when the sum of the burdens of risk-avoidance is less than the sum of the expected losses. This Article argues that the Hand formula should be applied to multiparty cases by, first, disaggregating burdens and losses and comparing them on a pairwise basis, starting with the individual who bears the highest burden and the one who bears the highest expected loss.

Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions.

In debates about the future of work, scholars and policymakers often treat economic efficiency and distributive justice as the principal values at stake. In this Article, I argue that neither a transaction cost-centric analysis of employment nor one focused only on distributive justice or equality fully conceptualizes all that is at stake in the institutional design and legal regulation of how we work. Here, I provide the first in-depth theorization of work as a site of relational transaction benefits, with a specific focus on law’s role in shaping them.

Amid the avalanche of recent important administrative law decisions, one case has received almost no scholarly attention: Corner Post, Inc. v. Board of Governors of the Federal Reserve System. In part, Corner Post expands judicial review for claims that an agency regulation violates the authorizing statute or the Constitution by allowing such substantive claims indefinitely. Congress should implement a six-year time bar for administrative procedure claims that accrues at the time of agency action, so that procedural claims would be allowed only for six years following a rulemaking. Otherwise, a court might invalidate a longstanding regulation because of an agency’s years-old violation of procedural requirements, even if the regulation perfectly implements the authorizing statute and is consistent with the Constitution.

The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.

Professor David Strauss attributes the U.S. Supreme Court’s reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper “victims” of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Under such elite “polarization,” Strauss worries the jurisprudential approach that emerged from Carolene Products allows for judicial intervention on behalf of groups loaded with political power. Even then, he insists on the classic liberal defense of the courts: that courts serve as an important if imperfect check against the majoritarian domination of minorities. But critical to such defenses is the unstated conjecture that elites are more enlightened than popular majorities.

In Dobbs v. Jackson Women’s Health Organization and Obergefell v. Hodges, the Justices who attack substantive due process law equate it with Lochner. Today, crying “Lochner” has so much force that it is often unclear what the objection itself entails. “Lochner” warns federal judges to defer to a legislature’s judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases do not concern such legislation. In this Essay, we supply an answer to the Lochner objection by demonstrating how judicial review of substantive due process claims can be democracy-promoting.

Among law students, lawyers, jurists, and legal academics, the reasoning contained in Supreme Court opinions forms the indispensable object of examination. The centrality of those opinions is instilled from the very first moments of law school, as professors direct their students to scrutinize this key paragraph, that critical sentence, even the odd momentous footnote. The rationales undergirding various Supreme Court opinions receive not mere study, but valorization, worship, and occasionally even ridicule. However, this Essay contends that such claims wildly exaggerate the actual significance of judicial opinions.

Once upon a time, not that long ago, we had a pretty good explanation for why judicial review exists. The premise is that, for the most part, important decisions in a nation like ours should be made by politically accountable officials, not by courts. Unavoidably, though, there will be defects in the democratic political process. The role of the courts is to correct those defects, to the extent they can. One such defect is that some groups may not have their fair share of political power. If that is true, then the courts should intervene to protect that group. But this account is not quite right, and it is incorrect in a way that suggests a deep problem with judicial review today.

Efforts to ratify the Equal Rights Amendment have resurged, and for the first time in nearly forty years, three new states have ratified the ERA. But there are several reasons to reconsider these efforts. Most importantly, the ERA’s substance is insufficient to address ongoing inequities. This Article argues that advocates should instead focus efforts on writing a new amendment constitutionalizing equality aimed at rectifying the constitutional Founding Era’s treatment of people of color, women, and other subordinated groups.

Data breach—the improper exposure of consumers’ personal information held in corporate databases—costs consumers and businesses hundreds of billions of dollars each year. Despite scrutiny, the scale and severity of breaches has rapidly increased. This Note lays out a policy framework for overcoming the intense industry opposition and political paralysis that has consistently derailed data breach reform efforts over the past decade.

The Pregnant Workers Fairness Act entitles many workers to “reasonable accommodations” for pregnancy-related medical conditions—so long as they do not impose an “undue hardship” on their employer. This Article addresses how the chaotic Americans with Disabilities Act doctrine will impact the PWFA’s implementation. The Article proposes a framework for litigants and courts assessing claims under the PWFA.

Scholars’ framing of Section 1983 as a “constitutional tort” and their focus on the qualified immunity doctrine miss the fundamental issue of Section 1983's transformation into a fault-based tort. This Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’ intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.