An unfamiliar equality principle is gaining prominence in constitutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the government’s interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implications for other guarantees in constitutional law. This Article offers two arguments....
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Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the offense. The immigration bureaucracy’s implementation of the INA, however, involves a spectrum of penalties short of deportation. Using tools such as administrative...
Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.
In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really,...
Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome “obsolescence”—the persistence of rules that only solve yesterday’s contracting problems? Until the early twentieth century, contract law was largely created by common law courts. The law’s default rules were efficient when created, and courts updated them as commerce changed....
State and federal courts routinely cast state legislatures in the role of democratic hero. Recent events illustrate: Some states have embraced the nondelegation doctrine, striking down governors’ pandemic responses based on the theory that those weighty choices belong to the legislature. During the 2020 election, federal judges invoked an “independent state legislature” doctrine to question voting rights measures from state executive actors...
The COVID-19 pandemic has brought new attention to the period between signing and closing in mergers and acquisitions (M&A). Transactional planners heavily negotiate the provisions that govern the behavior of the parties during this window, not only to allocate risk between the buyer and seller, but also to manage moral hazard, opportunistic behavior, and other distortions in incentives. Prior literature, both academic and practitioner, has...
In trading the preeminent risk-free security, the $21 trillion U.S. Treasury market supports the country’s borrowing needs, financial stability, and investor appetite for a safe asset. Straddling the nexus between a securities market and a systemically essential institution, the Treasury market must function at all costs, even if other markets fail.
This Article shows that Treasury market structure is fragile, weakened by a regulatory...
Appropriations lie at the core of the administrative state and are becoming increasingly important as deep partisan divides have stymied substantive legislation. Both Congress and the President exploit appropriations to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for special...
Online speech governance stands at an inflection point. The state of emergency that platforms invoked during the COVID-19 pandemic is subsiding, and lawmakers are poised to transform the regulatory landscape. What emerges from this moment will shape the most important channels for communication in the modern era and have profound consequences for individuals, societies, and democratic governance. Tracing the path to this point illuminates the...
Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.
This Article examines agency genesis at the state level. In the process,...