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  Teaching at the Intersection of Federal Indian Law and Environmental Law Courses

  Torres, Gerald; Hammersley, Mia Montoya; Racehorse, Vanessa; Tanana, Heather; Padilla, Nadine (Vermont Law Review, 2024)

  A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.
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  Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It

  Siegel, Reva; Ziegler, Mary (Yale Law Journal, 2025)

  With the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a categorical ban on abortion--a ban that Americans never enacted and, as the movement recognizes, would never embrace today. Claims on the Comstock Act have been asserted in ongoing challenges to the approval of the abortion pill mifepristone, in litigation before the Supreme Court, and in the 2024 campaign for the presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention. Revivalists read the Comstock statute as a plain-meaning, no-exceptions, nationwide abortion ban. In countering revivalist claims, this Article recovers a lost constitutional history of the statute that explains why its understanding of obscenity and of items prohibited as nonmailable has evolved so dramatically in the 150 years since the law was enacted. We show that the Comstock law was the first federal obscenity law to include writings and articles enabling contraception and abortion, condemning them along with erotica and sex toys as stimulants to illicit sex. At no point was this ban absolute. The law, by its terms and as enforced, policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian interpretation of obscenity--authorizing censors to prosecute advocates for free love and voluntary motherhood--protected the doctor-patient relationship. The public's repudiation of this expansive approach to obscenity as "Comstockery"--as encroaching on democracy, liberty, and equality-- led to the statute's declining enforcement and to cases in the 1930s narrowing obscenity and expanding access to sexual education, contraception, and abortion. These developments were not only statutory; they were constitutional. From conflicts over Comstock's enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation's history and traditions of sexual and reproductive freedom.
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  Altering Rules: The New Frontier for Corporate Governance

  Sanga, Sarath; Rauterberg, Gabriel (Yale Journal on Regulation, 2025)

  Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom. We argue, however, that the best approach lies neither in rigid mandatory rules nor unchecked contractual freedom—but in recognizing the potential of corporate law’s altering rules. Altering rules define how parties can opt out of the default rules of governance. Our theory identifies corporate altering rules’ essential features, namely, whose consent is required to change a default (process) and who is bound by that decision (scope). We show that the central role of altering rules in corporate law is not simply to make changing a default more or less difficult, as is widely supposed, but rather to combine process and scope in ways that define distinct bargaining environments, shaping how insiders negotiate over governance. Corporate law can fine-tune these features in ways that both encourage contractual innovation and manage intra-corporate risks. In response to recent cases and legislation, we propose new altering mechanisms that will broaden decision-making to include non-signatory shareholders, protecting them from harmful externalities. Altering rules, as they exist now, represent only a fraction of their potential. Rethinking their design opens the door to a vast, largely unexplored landscape of possibilities that could guide corporate governance in its new era of contractual innovation.
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  The Capital of and the Investments in Courts, State and Federal

  Resnik, Judith (New York University Law Review, 2025)

  Longstanding constitutional commitments appear to ensure rights to remedies for "every person." Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff. Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of "our common intellectual heritage," why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication's legitimacy. Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is "Judicial Hellholes," which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies. To clarify the normative stakes of conflicts over "rights to remedies" in "open" courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on "class" (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of doing so.
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  Crisis and Change at the United Nations: Non-Amendment Reform and Institutional Evolution

  Hathaway, Oona; Mills, Maggie M.; Zimmerman, Heather (Michigan Journal of International Law, 2025)

  The Security Council’s inaction in response to the wars in Gaza and Ukraine has once again put a spotlight on structural problems at the United Nations (“U.N.”). Security Council paralysis—particularly the (mis)use of the veto power afforded to the permanent five (“P5”) members of the Council—has long prompted calls for reform. Yet the same veto power prevents nearly all efforts to reform the organization through the formal amendment process provided in the U.N. Charter. This article argues that there is an alternative way forward: what we call “non-amendment reform.” Rather than seek formal amendments that are unlikely to survive the veto of the P5 members, advocates of change should support change through evolving interpretations of the Charter. Non-amendment reform can provide a way for the United Nations to act in the face of a veto threat. Indeed, thanks to an earlier non-amendment reform, the Uniting for Peace Resolution, paralysis of the Security Council during the wars in Gaza and Ukraine has not prevented the United Nations from acting. Although non-amendment reform has been overlooked by scholars, it has long been critical to the capacity of the United Nations to respond to crises. This article demonstrates that a four-stage process—trigger, proposal, contestation leading to a new interpretation, and consolidation—has led to non-amendment reform at key moments throughout the United Nations’ history. Learning a lesson from the past, today’s advocates of change should channel their efforts towards non-amendment reform to enable the United Nations to meet the challenges of the moment. This article outlines four current opportunities to do just that.
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  Farm Until It's Gone: Industrial Animal Agriculture and the Limits of Law

  Kysar, Douglas (DePaul Law Review, 2025)

  The way meat is produced today in the United States poses interesting challenges for law. A review of the harmful social and environmental impacts of contemporary meat production, when placed alongside the legal protections simultaneously enjoyed by the meat industry, suggests important missing elements from influential theoretical frameworks for analyzing social and environmental externalities. Industrial meat producers appear to be “law makers” more than they are “law takers,” complicating attempts to understand law merely as a precursor to bargaining over legally-endowed entitlements toward socially desirable outcomes.
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  Overruling Chevron Without a Coherent Theory of Statutory Interpretation and the Court-Congress Relationship

  Gluck, Abbe R. (Harvard Journal on Legislation, 2025)

  The article explores the significance of the U.S. Supreme Court decision in the administrative law-related case Loper Bright Enterprises v. Raimondo to the Court's continued lack of a coherent theory of the U.S. Congress and statutory interpretation. Topics include the author's view on the Court's overruling of the decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. and arguments on the Court's denouncement of the Chevron case as a judicial invention and a fiction.
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  The Enduring Relevance of Congress Despite the Court's Shift to" Ordinary Reader" Statutory Interpretation.

  Gluck, Abbe R.; Robbins, Laila M. (Journal of Law & Policy, 2024)

  Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court's new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism's perspective, from an "insider" perspective focused on Congress 's textual choices, to an "outsider" perspective based on how "ordinary people" read statutes. The Court's self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars--including first-generation textualists--had for a century focused on legislative supremacy and Congress 's practices and intentions, today, a majority of the Court claims its role is something entirely different. Rather than serve as a "junior partner" of the legislature, the Court says its role is to enforce a populist conception of how regular people encounter statutes, as well as the value of fair notice. But as it turns out, divorcing statutory meaning from Congress is not as simple as it looks. Our review of statutory interpretation cases over the past six Terms illustrates that, despite their protests, even the most ardent textualists' opinions that purport to turn on ordinary meaning are in fact riddled with implicit--and sometimes explicit--assumptions about congressional intent and how Congress drafts, including surreptitious uses of legislative history. This Essay explores the Court's rhetorical shift and why it has not been complete in doctrinal implementation. The congressional perspective in fact remains ubiquitous in the Court's interpretive work, even as the Court disavows it.
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  The Pet Fish Canon

  Eskridge, William N. (Journal of Law & Policy, 2024)

  Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a "pet fish" canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as the dictionary, associated words, and negative implication canons. The pet fish canon reveals surprising power in cases involving criminal statutes, as it proves to be a useful tool for thinking about ordinary meaning (i.e., that meaning of federal criminal law that would be accessible to all of us ordinary speakers of the language).
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  We Are All Cafeteria Originalists Now (and We Always Have Been)

  Balkin, Jack M. (William & Mary Bill of Rights Journal, 2024)

  Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be.
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  Shorting Your Rivals: Negative Ownership as an Antitrust Remedy

  Hemphill, C. Scott; Ayres, Ian; Wickelgren, Abraham L. (Antitrust Law Journal, 2024)

  The article proposes a unique antitrust remedy of negative ownership positions in remaining rivals as an alternative to divestiture in mergers. This remedy aims to restore competition levels by counteracting anticompetitive effects of mergers through various implementations like compensation based on relative performance and derivative contracts. The text explores the concept of negative ownership in antitrust enforcement, discussing its benefits in maintaining pre-merger competitive incentives and potentially allowing procompetitive transactions. It also delves into scenarios of asymmetry among firms, impact on innovation, and a detailed model of the JetBlue/Spirit merger to illustrate how negative ownership can influence pricing decisions, offering a versatile tool for antitrust enforcement.
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  Commodity's Propriety

  Rose, Carol M. (Brigham-Kanner Property Rights Journal, 2024)

  I have known Greg Alexander for a very long time. Indeed, except for members of his family, I may have known Greg longer than anyone else at this conference celebrating Greg and his work. Since the beginning of this long friendship, we have had three notable encounters, and I would like to begin this Comment with those. The first encounter was at the University of Chicago Law School in the early 1970s. I was a student there at the time, and Greg was a Bigelow Fellow, one of the Law School’s much-sought-after year-long positions as legal writing instructors. I was already in my second year by then, so there was no chance that I would have had Greg as my Bigelow teacher, but somehow Greg and I and a fellow student and good friend, Martha Fineman, all gravitated together. Martha is now a very distinguished legal academic, holding a Woodruff Chair at Emory University School of Law. But even back then, both she and Greg were determined to go into law teaching. I, on the other hand, was not. I had just jettisoned a history teaching career to go to law school, and I had resolved to steer clear of anything like an academic career. But under Greg’s and Martha’s influence, I weakened. In that sense, Greg’s and Martha’s long-ago example explains why I now have the opportunity to say anything at all about Greg’s voluminous academic work.
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  Principles for just and rational policing

  Meares, Tracey; Friedman, Barry; Harmon, Rachel; Levi, David (Judicature, 2024)

  Police reform has long been a topic of heated debate in the United States. But it assumed new urgency and political significance during the past decade, as national news has carried story after story about the killing of unarmed Black men and women at the hands of law enforcement officials. In 2015, not long after the death of Michael Brown in Ferguson, Mo., the American Law Institute (ALI) launched its Principles of the Law, Policing project to address pressing questions about law enforcement failures and to provide a written framework for building just and rational policing laws, policies, and practices — a framework that police agencies and police reform advocates alike might agree on.
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  Administering a Democratic Industrial Policy

  Kapczynski, Amy; Michaels, Joel (Harvard Law & Policy Review, 2024)

  In Washington today, we are witnessing what many call the "return of industrial policy." Some argue that a new political economic paradigm is emerging, departing from the neoliberal order of the last several decades. High-stakes questions about how to administer industrial policy have followed, for good reason: industrial policy necessarily involves a great deal of administrative discretion. Yet we have no adequate literature discussing how that discretion should be deployed. Administrative law scholarship has largely ignored the distinctive tools of industrial policy, such as grantmaking, lending, government contracts and ownership stakes. These tools require flexibility and discretion, and often cannot be--and are not--constrained by conventional administrative law tools like notice-and-comment rulemaking or judicial review. The literature on industrial policy argues for bureaucratic autonomy and flexibility, but also has little account of how this power can be accountable in a democracy. This Article seeks to address this gap. We argue that we should view industrial policy as a developmental practice: it involves deliberate attempts to shape sectors of the economy to meet public aims writ broadly, rather than to serve values of wealth-maximation or national competitiveness. In order to be both effective and legitimate, we argue, industrial policy today requires concerted efforts to build administrative power sufficient to enable effective governance of the economy, including by experimenting with new kinds of conditionalities and public ownership structures. It must also build countervailing power to allow disorganized and marginalized groups to exercise influence over both the government and subsidy recipients. We map administrative tools that can help achieve these aims, arguing that by using them, we can help build industrial policy that does not merely subsidize particular sectors but advances shared goals for democratic development.
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  McMarriage Equality

  Eskridge, William (University of the Pacific Law Review, 2024)

  The article provides a detailed account of the marriage equality debates in California from 2004 to 2008, highlighting key events such as the Winter of Love in 2004 and the Marriage Cases of 2005-08. It discusses legal battles, including the California Supreme Court's ruling that invalidated the exclusion of same-sex couples from marriage. Various legal arguments were presented, with Attorney General Lockyer and Proposition 22 defenders taking different approaches. The article also mentions the launch of ProtectMarriage.com in 2005 to support a constitutional Super-DOMA ballot initiative and the successful campaign for Proposition 8 in 2008, which defined marriage as between a man and a woman.
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  The Coming Crisis of Student Speech

  Driver, Justin (Stanford Law Review, 2024)

  Debates involving free speech on America's college campuses have recently ignited a firestorm of disputation, dominating newspaper headlines in a fashion not witnessed in several decades. The First Amendment's import as appearing in the nation's elementary and secondary schools has, however, received comparatively little public scrutiny. This relative paucity of attention is lamentable, as our public school system is the foremost government entity that shapes Americans' everyday lives. This Essay explores three twenty-first century doctrinal developments that fuse to portend an emerging crisis for student speech. First, it examines Mahanoy Area School District v. B. L ex rel Levy and contends that the opinion unwisely authorizes educators to punish an especially critical form of off-campus speech. Second, the Essay demonstrates how a long-dormant aspect of Tinker v. Des Moines Independent Community School Districtinvolving speech that 'collid[es] with the rights of others"-recently awoke from its slumber and now poses a grave threat to student speech. Third, it contends that the Supreme Court's embrace of adolescent neuroscience in the Eighth Amendment context could spell doom if imported into the student speech setting. This Essay aims to increase awareness of the storm clouds quickly gathering on the First Amendment horizon and encourages jurists to redouble their commitment to protecting student expression. Rather than protecting unpopular statements of students, as judges have long aspired, courts today seem increasingly poised to protect students from unpopular statements.
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  The Lawyer's Quandary: Client-Centered Lawyering in the Treatment Paradigm.

  Orihuela, Marisol (North Carolina Law Review, 2024)

  Client-centered criminal defense attorneys endeavor to maximize their client's autonomy, using their expertise to counsel their client through the criminal process. Indeed, the criminal system relies on defense counsel to ensure fairness and, in turn, help legitimize the system. What does it mean for the system if the client-centered lawyer can't fulfill their goals?. This Article argues that, because today's criminal system uses a treatment paradigm reliant on mandated treatment for defendants with mental disabilities, defense attorneys must then confront a lawyering quandary. It does so by exploring the challenges client-centered lawyers face in representing clients with mental health conditions categorized as personality "disorders," who are likely to struggle completing mandated treatment programs, in turn complicating their path for lowering imprisonment exposure and accessing care. Through a discussion of the obstacles lawyers face on behalf of clients with personality conditions, this Article illuminates deeper systemic failures in how the criminal system handles mental health issues.
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  Reconstructing Critical Legal Studies.

  Moyn, Samuel (Yale Law Journal, 2024)

  It is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random--in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law--parameters we should reclaim critical legal studies for helping establish--apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law-and-political economy movement. The law-and-political-economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it to better identify its core principles. Had critical legal studies never existed, it would have to be invented today.
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  Introduction to Yale Journal on Regulation Symposium on Financial Regulation.

  Macey, Jonathan R. (Yale Journal on Regulation, 2024)

  An introduction to the journal is presented which discusses various reports within the issue about regulatory environment of banks, including how the Federal Home Loan Bank system works, public banking, and deposit insurance.
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  Abortion, Full Faith and Credit, and the" Judicial Power" Under Article III: Does Article IV of the US Constitution Require Sister-State Enforcement of Anti-Abortion Damages Awards?

  Brilmayer, Lea (Columbia Journal of Gender and Law, 2024)

  Interstate judgments enforcement is governed by the Full Faith and Credit Clause of Article IV of the Constitution, together with its implementing statute, 28 U.S.C. 1738. Although a highly technical area of the law, interstate judgments enforcement has important social repercussions for some very modern problems of great cultural significance. One of the currently significant applications is the interstate enforcement of judgments rendered in civil suits based on state anti-abortion laws. For example, Texas statute S.B. 8 gives anyone who wishes to sue a civil cause of action against persons who facilitate abortions. Even complete strangers to the abortion can decide to become a plaintiff in such an action and can sue for money “damages” despite having suffered no injury. Non-experts seem to have the impression that the Full Faith and Credit Clause presents an ironclad requirement that judgments of sister states must always be enforced. If that were the case, states that recognize reproductive freedom would be obliged to enforce judgments entered into in states like Texas, despite their strong public policy against such actions. This Article shows why this impression is mistaken. First, the full faith and credit principle has for centuries been subject to exceptions, several of which are potentially relevant in the reproductive freedom context. These include lack of subject matter jurisdiction, the public policy exception, and the penal law exception. In addition, a uniform law adopted in forty-eight states (the Uniform Enforcement of Foreign Judgments Act) permits the state enforcing the judgment to apply its own judgments law to an interstate enforcement proceeding. The enforcing state will therefore apply to foreign state judgments any exceptions to judgments enforcement law that it has as a general matter for its own domestic judgments. Second, and more importantly, the Clause and statute both contain an important qualification: they apply only to “judicial” actions. This exception prevents a state from requiring sister-state enforcement of decisions that do not meet the usual tests for a judicial “case or controversy” (as defined in Article III of the Constitution). Article III and Article IV both use the word “judicial” to specify the standard necessary for the exercise of federal power. These two neighboring constitutional provisions are supported by a common historical origin (they were drafted at the same time and by some of the same people at the constitutional drafting convention) and fulfill comparable functions. If the two constitutional provisions are treated the same, judgments under statutes like Texas S.B. 8 would not be given mandatory force in other states because such cases would not meet the standing requirement imposed by Article III.

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