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…
Articles
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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…
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Criminal Law
Policing the Emergency Room
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Evidentiary Privileges
Privacy as Privilege: The Stored Communications Act and Internet Evidence
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Race and the Law
Monopolizing Whiteness
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Common Carrier Regulation
The Non–First Amendment Law of Freedom of Speech
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Federalism
Privatization’s Preemptive Effects