Legal Scholarship Hub

This article examines the role of constitutional 'anti-canon'—the cases universally recognized as wrongly decided—in shaping constitutional discourse. By analyzing Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, the article argues that these cases serve a constitutive function in constitutional law, defining the boundaries of legitimate constitutional argument. The article contends that the anti-canon is not merely a collection of judicial errors but a set of decisions that performs important work in constitutional culture, establishing what kinds of arguments are out of bounds and reinforcing shared constitutional commitments.

Justice Brennan's influential article argues that state courts should interpret their own constitutions to provide greater protections for individual rights than those guaranteed by the federal Constitution. Writing in the context of the Burger Court's narrowing of federal constitutional protections for criminal defendants, Brennan contends that state constitutions are independent sources of rights. The article catalogs instances in which state courts have relied on state constitutional provisions to extend protections beyond the federal floor in areas including search and seizure, self-incrimination, right to counsel, and cruel and unusual punishment.

This foundational article in law and economics examines the problem of harmful externalities and challenges the prevailing assumption that government intervention through regulation or taxation is the most efficient solution. Coase demonstrates that in a world of zero transaction costs, private bargaining between affected parties would lead to an efficient allocation of resources regardless of the initial assignment of property rights. The article's central insight—known as the Coase Theorem—has profound implications for environmental law, tort law, and regulatory policy. Coase argues that the real-world presence of transaction costs makes the initial assignment of rights important, and that legal rules should be designed to minimize the costs of transacting.

This article examines the dramatic expansion of the American criminal justice system since the 1970s, arguing that mass incarceration functions as a system of racial social control analogous to Jim Crow segregation. The analysis traces how the War on Drugs and mandatory minimum sentencing laws have disproportionately affected communities of color. The article documents how collateral consequences of criminal convictions—including disenfranchisement, exclusion from public housing, and employment discrimination—create a permanent underclass of citizens who are denied basic civil rights long after completing their sentences.

This article argues that while patent law is nominally a unitary system applying the same rules across all technologies, courts have in practice developed technology-specific applications of patent doctrine that function as distinct sub-regimes. The authors examine how the Federal Circuit has applied doctrines like obviousness, enablement, and claim construction differently across industries. The article proposes that rather than hiding these distinctions behind nominally uniform rules, patent law should embrace a more explicitly modular approach that recognizes the different innovation dynamics of biotechnology, software, pharmaceuticals, and mechanical inventions.

This article examines whether the original understanding of the Fourteenth Amendment supports the Supreme Court's decision in Brown v. Board of Education. McConnell argues that the historical evidence is more supportive of Brown than originalism's critics have assumed, tracing the legislative history of the Fourteenth Amendment and Reconstruction-era civil rights legislation. The article presents evidence that many supporters of the Fourteenth Amendment understood it to prohibit racial segregation in public institutions, challenging the conventional wisdom that originalism cannot support the desegregation decisions.

This empirical study analyzes patterns in Supreme Court decision-making over six decades, using quantitative methods to examine the relationship between the ideological composition of the Court and the direction of its decisions. The authors construct a comprehensive database of Supreme Court votes and apply statistical models to test competing theories of judicial behavior. The analysis finds that the attitudinal model—which posits that justices vote primarily based on their ideological preferences—has significant explanatory power, but that institutional constraints, strategic considerations, and legal factors also play important roles in shaping outcomes.

This article challenges the efficient market hypothesis by documenting systematic patterns of market inefficiency and examining the structural factors that prevent arbitrageurs from correcting mispricings. Shleifer argues that behavioral biases among investors, combined with limits on arbitrage, can produce persistent deviations of asset prices from fundamental values. The analysis has significant implications for securities regulation, suggesting that markets may not be self-correcting and that regulatory intervention may be necessary to prevent bubbles, fraud, and systemic risk.

In this seminal lecture, Holmes articulates his influential theory of legal pragmatism, arguing that the law should be understood not as a system of abstract principles but as a prediction of what courts will do in practice. Holmes famously declares that the life of the law has not been logic but experience. Holmes introduces the concept of the 'bad man' who cares only about the material consequences of legal rules, arguing that this perspective illuminates the true nature of legal obligations. The article anticipates the legal realist movement and continues to shape debates about the nature of law and legal reasoning.

This article examines the growing complexity of the American regulatory state and proposes frameworks for simplifying regulatory design without sacrificing effectiveness. Sunstein draws on his experience as Administrator of the Office of Information and Regulatory Affairs to analyze how regulatory complexity creates compliance costs, reduces transparency, and undermines democratic accountability. The article advocates for greater use of regulatory 'defaults' and 'nudges'—drawing on behavioral economics—to achieve regulatory objectives while minimizing the cognitive burden on regulated entities and the public.

In this famous article published shortly after Roe v. Wade, Ely—a supporter of abortion rights—argues that the Supreme Court's decision is constitutionally indefensible. Ely contends that the right to privacy, whether derived from the Due Process Clause or from penumbral guarantees, cannot justify the scope of the right recognized in Roe. Ely's critique focuses not on the policy merits of abortion rights but on the institutional question of whether the Court had legitimate constitutional authority to impose its judgment on the political branches. The article became one of the most widely cited critiques of Roe and influenced debates about judicial review for decades.

This article examines the legal challenges posed by the increasing use of algorithms in consequential decisions affecting employment, credit, insurance, and criminal justice. The authors argue that algorithmic decision-making systems often operate as 'black boxes' that are opaque to the individuals affected by their outputs and to regulators tasked with ensuring fairness. The article proposes a framework for algorithmic accountability that includes transparency requirements, auditing mandates, and meaningful opportunities for individuals to challenge algorithmic decisions. The authors argue that existing anti-discrimination law is inadequate to address the novel forms of bias that can emerge from algorithmic systems.

Bickel's foundational work identifies the central problem of judicial review in a democratic system: when unelected judges invalidate the decisions of elected legislatures, they exercise a countermajoritarian power that exists in tension with democratic self-governance. Bickel argues that the Supreme Court must employ 'passive virtues'—including standing doctrine, ripeness, and the political question doctrine—to avoid unnecessary confrontations with the political branches. The article proposes that judicial review is most legitimate when it serves to protect fundamental values that transcend the preferences of temporary legislative majorities, and that the Court should exercise its power with restraint and prudence.

This groundbreaking work challenges the assumption that common-pool resources must be managed either through government regulation or privatization to avoid the 'tragedy of the commons.' Through extensive empirical research on irrigation systems, fisheries, forests, and other shared resources around the world, Ostrom demonstrates that communities can and do develop effective self-governing institutions. Ostrom identifies eight design principles that characterize successful common-pool resource institutions, providing a framework that has influenced environmental law, property theory, and regulatory design. The work earned Ostrom the Nobel Prize in Economics in 2009.

This comprehensive historical study traces the evolution of contract law from the eighteenth century through the modern era, documenting the rise of freedom of contract as a dominant legal ideology during the nineteenth century and its subsequent decline in the face of consumer protection legislation, labor law, and regulatory intervention. Atiyah argues that the classical model of contract—based on individual autonomy, bargaining equality, and minimal state intervention—was historically contingent and reflected specific economic and political conditions that no longer obtain in the modern regulatory state.

This article examines how the dormant Commerce Clause doctrine applies to state regulation of internet activity and electronic commerce. The authors argue that the unique characteristics of the internet—including its decentralized architecture and the ease of cross-border transactions—create novel challenges for the traditional framework of dormant Commerce Clause analysis. The article analyzes how competing state regulations of online activity can create the kind of inconsistent regulatory burdens that the dormant Commerce Clause was designed to prevent, while also acknowledging the legitimate interests of states in regulating activity that affects their residents.

This article documents the crisis of access to justice in the United States, where approximately 80 percent of the legal needs of low-income Americans go unmet. Rhode examines the structural barriers that prevent poor and middle-class Americans from obtaining legal representation, including the cost of legal services, the unauthorized practice of law restrictions, and the inadequacy of public funding for legal aid. The article argues that the legal profession's self-regulatory structure contributes to the access problem by maintaining artificial barriers to the provision of legal services and by failing to prioritize pro bono obligations.

This article traces the legal and cultural history of the Second Amendment from its ratification to the present day. Waldman documents how the amendment was understood in its original context as primarily protecting the militia, how it was largely ignored in constitutional jurisprudence for two centuries, and how a concerted political and legal campaign transformed it into an individual right. The analysis examines the historical, textual, and structural arguments on both sides of the individual rights versus collective rights debate, providing context for the Supreme Court's landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago.

This article examines how structural reform litigation—court-supervised institutional reform—has been used to enforce the Americans with Disabilities Act and the Supreme Court's decision in Olmstead v. L.C. The author analyzes the successes and limitations of consent decrees and court orders aimed at deinstitutionalizing individuals with disabilities and integrating them into community settings. The article argues that structural reform has achieved significant gains in disability rights but faces challenges including judicial reluctance to oversee institutional reform, political resistance to implementation, and the difficulty of measuring compliance with broad integration mandates.

This comprehensive analysis examines the legal frameworks governing responses to climate change across multiple domains, including environmental regulation, energy policy, land use planning, and tort liability. The authors argue that existing legal structures are inadequate to address the scale and complexity of climate change and that significant legal innovation is needed. The article examines how traditional environmental law, which focuses on regulating specific pollutants from identifiable sources, is poorly suited to addressing the diffuse and cumulative nature of greenhouse gas emissions. It also explores emerging theories of climate liability and the potential role of litigation in driving emissions reductions.

This article reexamines the influential theory of efficient breach—the idea that breaching a contract is economically efficient when the breaching party's gains exceed the non-breaching party's losses—and argues that the theory fails to account for important costs including the reliance expenditures of the non-breaching party, the moral hazard created by the option to breach, and the systemic effects on contractual trust. The authors propose a modified framework that better accounts for the full social costs of breach while preserving the theory's core insight that specific performance is not always the optimal remedy.

This article examines the historical relationship between economic inequality and democratic governance, arguing that extreme economic inequality poses a fundamental threat to constitutional democracy. Sitaraman traces how the American constitutional system was designed for a society with a relatively broad middle class, and explores the implications of rising inequality for democratic institutions. The analysis draws on constitutional history, comparative law, and political theory to argue that constitutional systems that fail to address extreme inequality tend toward either oligarchy or revolution, and that the American system requires structural reforms to prevent economic power from translating into political domination.

This article proposes a framework for applying the Fourth Amendment to new surveillance technologies. Kerr argues that courts should maintain technological equivalence—the principle that the Fourth Amendment should provide the same level of protection regardless of the technology used—by translating traditional Fourth Amendment concepts into digital contexts. The article addresses challenges posed by GPS tracking, cell phone location data, email surveillance, and social media monitoring, providing a practical framework for courts navigating the intersection of constitutional privacy protections and rapidly evolving technology.

Koh examines how international law is actually internalized and enforced within domestic legal systems, challenging the realist assumption that international law is merely aspirational. The article develops a theory of 'transnational legal process' to explain how international norms become embedded in domestic law through a process of interaction, interpretation, and internalization. The analysis argues that international law compliance occurs not primarily through coercion or rational self-interest but through a process by which international norms are incorporated into the domestic legal identity of nations.

This article examines the Supreme Court's increasing skepticism toward administrative agencies and the regulatory state. Metzger argues that the Court's recent decisions reflect a broader anti-administrativist orientation that threatens to dismantle the legal foundations of modern governance. The article traces how doctrines including the non-delegation principle, Chevron deference, and the major questions doctrine have been deployed to constrain agency authority, and argues that this trend is inconsistent with both constitutional text and the practical necessities of modern government.

This article examines the distinction between sex and gender in employment discrimination law under Title VII. Case argues that while Title VII prohibits discrimination based on sex, courts have often conflated sex with gender, failing to protect individuals who conform to the 'wrong' gender expectations—feminine men and masculine women. The article proposes that Title VII should be interpreted to protect against both sex discrimination and gender discrimination, arguing that penalizing an individual for failing to conform to gender stereotypes is a form of sex discrimination because the stereotypes themselves are based on sex.

In this landmark work, Ely proposes a theory of judicial review that navigates between strict interpretivism and unbounded judicial activism. Ely argues that the proper role of judicial review is not to enforce substantive values but to police the democratic process itself—ensuring that political channels remain open and that discrete and insular minorities are not systematically disadvantaged. The 'representation-reinforcing' theory holds that courts should intervene when the political process malfunctions, either because incumbents have entrenched themselves against challenge or because the majority has systematically disadvantaged a minority group incapable of protecting itself through normal political channels.

This article examines the growing tension between employer surveillance capabilities and employee privacy expectations in the workplace. As employers increasingly use electronic monitoring, predictive analytics, and biometric data collection, the existing legal framework—built on the assumption that employees have limited privacy rights in the workplace—faces fundamental challenges. The article surveys the patchwork of federal and state laws governing workplace privacy and argues that a more comprehensive framework is needed to balance legitimate employer interests with employee dignity and autonomy.

This article presents empirical evidence challenging the assumption that non-lawyer legal service providers necessarily deliver lower-quality services than licensed attorneys. Drawing on studies of lay advocates, document preparers, and limited-license legal technicians, Sandefur argues that the legal profession's monopoly on legal services is not justified by consumer protection concerns in many routine legal matters. The article proposes a risk-based framework for licensing reform that would permit non-lawyers to provide certain legal services—such as assistance with routine government forms, uncontested family law matters, and landlord-tenant disputes—while maintaining licensing requirements for complex and high-stakes legal work.

This article examines the complex legal relationship between the federal government and Native American tribes, focusing on the tensions between tribal sovereignty and the federal trust responsibility. Fletcher analyzes how the Supreme Court's Indian law jurisprudence has alternately expanded and contracted tribal authority, often without a coherent constitutional framework. The article argues that the trust relationship, while providing important protections for tribal interests, has also been used to justify paternalistic federal control over tribal governance. Fletcher proposes a framework that would strengthen tribal sovereignty while preserving the federal government's obligations to protect tribal rights and resources.