Essay

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA...

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon. By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students. Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the para­digm crime and...

In an era of declining labor power, police unions stand as a success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite support for unionization on the political left, police unions have become public enemy number one for commentators concerned about race and police violence. Much criti­cism of police unions focuses on their obstructionism and their prioritiza­tion of members’...

In 1858, the United States Attorney General issued an opinion, Invention of a Slave, declaring inventions by African Americans, enslaved and free, unpatentable. Within a few years, legal changes that abolished the law of slavery rendered the opinion obsolete, and it became forgotten, dropped from legal memory. Combining history and Critical Race Theory, this Essay repositions the opinion as a remembered legal story and argues that law’s selective...

Patent law tries to spur the development of new and better innova­tive technology. But it focuses much more on “new” than “better”—and it turns out that “new” carries real social costs. I argue that patent law promotes innovation that diverges from existing technology, either a little (what I call “differentiating innovation”) or a lot (“exploring innova­tion”), at the expense of innovation that tells us more about existing...

Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private—and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regu­latory and welfare programs proliferated. At other moments, the Market struck back, forcing the State...

Since the turn of the millennium, a remarkably large number of incumbent presidents have managed to stay past the end of their consti­tutionally mandated terms. Russia’s Vladimir Putin, Rwanda’s Paul Kagame, and Colombia’s Alvaro Uribe represent a sizeable collection of presidents who were democratically elected but remained in power long past their original mandates. Such attempts to stay in office are not new, but in recent decades their...

During the Trump Administration, disturbing images of immigration officials forcibly separating parents from their children at the U.S.–Mexico border have rightly invited an onslaught of criticism. Voices across the political spectrum have called these actions immoral and insisted that this is not who we are. The underlying moral imperative of this critique is correct, but this Essay argues that it rests on a mischaracterization of our immigration...

Many legal scholars have explored how courts can apply legal doctrines, such as procedural due process and equal protection, directly to government actors when those actors deploy artificial intelligence (AI) systems. But very little attention has been given to how courts should hold private vendors of these technologies accountable when the government uses their AI tools in ways that violate the law. This is a concerning gap, given that governments...

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and...