Consumer Law
Assembly-Line Plaintiffs
The full text of this Article may be found by clicking on the PDF link to the left. Around the country, state courts are being flooded with the claims of…
Articles
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Fourth Amendment
The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021
The full text of this Article may be found by clicking on the PDF link to the left. Fourth Amendment law is in flux. The Supreme Court recently established, in…
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Trademark Law
Navigating the Identity Thicket: Trademark’s Lost Theory of Personality, the Right of Publicity, and Preemption
Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one…
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Discrimination
Discriminatory Taint
The truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if…
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Separation of Powers
Enforcement Lawmaking and Judicial Review
It is — and has long been — well known that the Executive’s power is expanding. To date, there are two dominant analyses of the judiciary’s role in that expansion:…
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Federalism
Data Federalism
Private markets for individual data have received significant and sustained attention in recent years. But data markets are not for the private sector alone. In the public sector, the federal…
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Originalism
Originalism: Standard and Procedure
Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy,…
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Constitutional Law
Constitutional Off-Loading at the City Limits
The most constitutionally divisive issues in the United States today often play out literally on the ground, in the realm of land use. For instance, towns that have proclaimed themselves…
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Constitutional Law
The Incoherence of Prison Law
In recent years, legal scholars have advanced powerful critiques of mass incarceration. Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality. Scholars have said much less…
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Administrative Law
Structural Deregulation
Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates…