As James Madison famously wrote, the power of the purse is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” But the Constitution does not outline specific procedures for how Congress should use that weapon. Over time, Congress has developed a set of norms—the two-step authorization-appropriations process—to effectively execute its power under the Appropriations Clause....
Vol. 120
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...
Companies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control by recapitalizing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting stock dividend that would empower minority shareholders to block a merger it perceived...
Courts and commentators have long struggled to reconcile prominent federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in...
Introduction In September 2017, the Supreme Court granted certiorari in Ortiz v. United States, a case challenging the appointment of a military judge. The case, which had come to the Court on appeal from the Court of Appeals for the Armed Forces (CAAF), was quickly complicated by an amicus brief arguing that the Court lacked […]
On September 30, 2019, California Governor Gavin Newsom signed into law Senate Bill 206, otherwise known as “The Fair Pay to Play Act.” When it goes into effect, the Fair Pay to Play Act will allow student-athletes enrolled in California colleges and universities to be compensated for the use of their name, images, and likenesses […]
After years of stagnation, pay equity law is gaining spectacular momentum. In the past three years, over a dozen states have passed important new legislation with numerous other bills pending before the federal, state, and local legislatures and a rising number of class action suits underway. This Article, the first to study the emerging ecology of pay equity law, argues that the underlying logic of these reforms is to structurally change the ways...
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...
Temporary leaders in federal agencies—commonly known as “actings”—are a fixture of the modern administrative state. These acting officials have recently come under fire, particularly after President Trump ousted Jeff Sessions and installed Matthew Whitaker as acting Attorney General in November 2018. Yet despite their ubiquity and the fervent criticism we know almost nothing about them.
This Article examines open questions about...
The 2008 financial crash precipitated a liquidity crisis of global proportions. With dollar funding shortages threatening the global financial system, the Federal Reserve turned to foreign central bank liquidity swaps as a key component of its crisis response. First used in the 1960s during the Bretton Woods era, foreign central bank liquidity swaps are essentially contracts between two central banks to lend each other currency....