Until recently, the disgorgement of profits remedy in US design patent law garnered little attention from scholars or practitioners. Congress created this remedy in the late nineteenth century to overrule two Supreme Court decisions that awarded nominal damages as the sole compensatory remedy for infringements of design patents. Under the new remedy, a design…

Between 2011 and 2015, the Wayne County Treasurer completed the property tax foreclosure process for one in four properties in Detroit, Michigan. No other American city has experienced this elevated rate of property tax foreclosures since the Great Depression. Studies reveal that the City of Detroit systematically and illegally inflated the assessed value of most…

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially…

In recent years, there has been a massive influx of unaccompanied minors (UMs) crossing the southern border. Under the Trump administration, migrant children are being held in detention centers at unprecedented levels, with a five-fold increase in the last year alone. Without legal representation, UMs have little to no capability to defend against removal charges and to advocate for any existing statutory…

Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs—meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation…

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever…

The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public…

This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, oppressive, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven…

When we think about people seeking relief for infringement of their intellectual property rights under copyright and trademark laws, we typically assume they will operate within an overtly legal scheme. By contrast, creators of works that lie outside the subject matter, or at least outside the heartland, of intellectual property law often remedy copying of…

Low-wage workers experience wage theft—that is, employers’ failure to pay earned wages—at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving…

There are millions of Americans who are systematically forgotten and mistreated by our government. They have been described by the Supreme Court as “alien races” and “utterly unfit for American citizenship,” but they continue to fight and die defending our Constitution. They survive catastrophic storms, but do not receive the assistance that is freely given…

A safe food supply is essential for a healthy society. Our food system is replete with different types of risk, yet food safety is often narrowly understood as encompassing only foodborne illness and other risks related directly to food ingestion. This Article argues for a more comprehensive definition of food safety, one that includes not…

Does the party that provides the first draft of a merger agreement get better terms as a result? There is considerable lore among transactional lawyers on this question, yet it has never been examined empirically. In this Article, we develop a novel dataset of drafting practices in large M&A transactions involving US public-company targets. First…

The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among…

This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of…

Four months into the convulsive aftermath of the September 11 attacks, the first George W. Bush Administration began to detain “enemy combatant” designees at the American military base in Guantanamo Bay, Cuba (GTMO). With the exception of Yaser Hamdi, a man born in Louisiana but raised in Saudi Arabia, GTMO received only noncitizens…

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Article builds on Dicey by offering a comparative…

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory…

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to…

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second…