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. Some patients are being airlifted to out-of-state hospitals for treatment elsewhere, and many who are forced to wait until their health deteriorates are taking matters into their own hands and choosing to travel out-of-state—often at great health risk—if they have the means.

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.

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.

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.

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.

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.

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.