Issue Archives

“If I can be provocative, shouldn’t this study be done in Africa, where there are no masks, no treatment, no intensive care, a bit like some studies on AIDS or among prostitutes. We try things, because we know they . . . are highly exposed and they don’t protect themselves. What do you think about that?” Jean-Paul Mira, […]

Federal law enforcement’s deployment of malware (Network Investigative Technique, or NIT) raises a jurisdictional question central to remote searches of electronic data: Where does the search occur?

Litigation arising from two prominent NIT searches—Operations Pacifier and Torpedo—illustrates the challenge courts confronted in defin­ing the...

The Supreme Court has made clear that a district court may grant class action certification only after conducting a rigorous analysis to ensure that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been met. Less clear, however, is what exactly a rigorous analysis entails. As precertification scrutiny has become more robust, reliance on expert testimony has become nearly indispensable for obtain­ing class certification....

DISBANDING POLICE AGENCIES

Anthony O’Rourke,* Rick Su** & Guyora Binder***

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do...

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...

In Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law, Dov Fox schematizes the concept of “reproductive negligence” (also called “reproductive wrongs”) into three categories: procreation imposed, procreation deprived, and pro­creation confounded. This Book Review aims to extend Fox’s analysis by looking beyond the law of torts, which is Fox’s primary focus. This Review observes that...

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...

Rule 10b-5 and the securities-fraud action provide a private enforcement tool only where litigants can show a defendant’s misrepresentation impacted the price of a security. But investors increasingly demand disclosure about how a corporation interacts with stakeholder groups such as employees, consumers, and communities. Because these “sustainability disclosures” are aimed at long-term value, misrep­resentations will only...

THE SOCIAL COST OF CONTRACT

David A. Hoffman* & Cathy Hwang**

When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular con­tracts—such as following through with weddings, conferences, and other large gatherings—will greatly increase the risk of rapidly spreading disease. A close reading of past cases illustrates that when social hazards sharply increase after formation,...