Federal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical scrutiny. In this Essay, we introduce the SCALES project: a new data-gathering and data-organizing initiative to right this wrong. SCALES is an online platform that we built to assemble federal court records, systematically organize them and extract key information, and—most importantly—make them freely available to the public. The database currently covers all federal cases initiated in 2016 and 2017, and we intend to expand this coverage to all years. This Essay explains the shortcomings of existing systems (such as the federal government’s PACER platform), how we built SCALES to overcome these inadequacies, and how anyone can use SCALES to empirically analyze the operations of the federal courts. We offer a series of exploratory findings to showcase the depth and breadth of the SCALES platform. Our goal is for SCALES to serve as a public resource where practitioners, policymakers, and scholars can conduct empirical legal research and improve the operations of the federal courts. For more information, visit www.scales-okn.org.

Family law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life. Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined. This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth. Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time. Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent amily with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental responsibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental relationship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition.

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments. The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional–executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them. Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways. After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

The Columbia Law Review launched its Karl Llewellyn Lecture series on March 19, 2024, celebrating pioneers in the law who have innovated and challenged legal theory. The inaugural Lecture was delivered by Judge Guido Calabresi who spoke on the promise and peril of "Law and . . ." disciplines, such as Law and Economics, Law and Philosophy, and Law and History. A transcript of Judge Calabresi's Lecture is published in this Issue.

James Boyd White’s work is ultimately about language, in its many forms and multifarious instantiations. Given the breadth of his writing – from Augustine,1 to George Herbert,2 to the power of speech3 and the limits of language4 – his work and its impact extends far beyond the law. As lawyers and legal scholars, however, we should pay homage to his particular contribution to legal education, which is probably the most meaningful to our field, and in many cases to us personally.5 In this paper, I therefore wish to highlight one of White’s most important contributions to legal thought—that learning the language of the law has distinct costs for us—and consider some of its implications. I argue that perhaps the greatest and most significant loss we experience in learning the language of the law is the ability to encounter text simply as a reader. Instead, lawyers learn a reading style that is utilitarian, extractive, narrow, and entirely purpose driven. It is useful in legal argument and practice to read this way, but it is limiting—so limiting, indeed, that it risks us losing touch entirely with the open, curiosity-based, humanistic reading of texts that we did before our lives in the law. I argue that White’s scholarship lets us see and diagnose this problem, and—in its creative, broad, and humanistic engagement with a variety of texts—helps us reengage with text as a reader rather than only as a lawyer. In other words, White brings the human back, and shows us how to live as lawyers who are still deeply connected to the human world we practice in, and that is shaped by our practice.

Legal speech and prophetic speech are commonly configured as diametrically opposed to each other. A lawyer stands graceful and impeccably groomed, calmly proffering measured arguments. A prophet stands unkempt and askew, spewing wild denunciations. Prophets hotly condemn the law and the legal system, while lawyers coldly dismiss prophetic accusations as unhinged and impractical. This view of the respective roles of law and prophetic discourse is entrenched in Anglo-American social criticism. The great nineteenth-century British critic Matthew Arnold distinguished between the rhetorical styles of Hellenism and Hebraism, the language of “sweetness and light” and the language of “fire and strength,” respectively.1 The former is the objective and precise language of rational analysis, the language of the courtroom; the latter is the ardent articulation of protest and resistance, the language of the soapbox.

James Boyd White’s The Legal Imagination has been with me since I first read it when I was working on my dissertation in the early 1990s. Perhaps this opening sentence does not augur well for an impartial reflection on the impact of The Legal Imagination on the study and practice of law that the editors of this special issue envisage. To justify it, I add that while I then thought that as an academic I understood the book theoretically, it wasn’t until I became a judge that I understood its lessons for legal, and more specifically judicial practice. That is why, by way of introduction, I indulge in a small archeological and archival exercise, privileged as I have been to have had many conversations with the man himself when writing my dissertation. For one trained in a continental European civil law jurisdiction with an emphasis in legal education on codified law, The Legal Imagination seemed odd to say the least. As one Dutch reviewer remarked, “This is the most unusual book in our field that I have ever had in my hands . . . The title does not explain anything, the subtitle not much more, and the rather detailed ‘Preface’ and ‘Introduction to the Student’ do not provide a clear presentation.”3 To me, The Legal Imagination seemed to me a rich but daunting Pandora’s Box of suggestions for making a life for oneself in and with law.

The contestation between a humanist, ethical law and a dehumanizing, profit-exalting law animates the plot and is dramatically embodied in the principal characters of Barry Unsworth’s Sacred Hunger.1 In the process, the novel illuminates the three intertwined concerns central to James Boyd White’s The Legal Imagination: how language constitutes cultures, communities, and selves; how politics and ethics are encoded in different ways of talking about other people (as objects or “means to an end” rather than “centers of autonomy and value”); and how forms of inherited speech and expression both constrain and enliven the imagination.2 The fact that Sacred Hunger is a historical novel about Britain’s role in the slave trade—a literature of realities—adds layers of complexity to its legal imaginations.

James Boyd White’s 1972 book The Legal Imagination announced that law and literature are disciplines that share imaginative and intellectual commitments. He also presented them as good, if quarrelsome, partners in legal education and the development of a humane legal system. Inspired by White’s vision and audacity, I set forth an extended literary analysis of a 1997 California death penalty case. This exercise contemplates the relationship between the legal opinion and the essay, considering them not only cousins but also antagonists whose differences consist in their relative abilities to wander. The rules that limit the legal opinion do not fetter the essayist, and here I take that opportunity to more fully imagine the scenes and arrogations that led to the murder of a seventeen-year-old boy in the mid-1990s and to contemplate that killing’s presence in a larger political and ecological landscape. The most pressing and literally questing inquiries this essay divulges concern the roles that the oil and pesticide industries played in a young man’s death, another man’s life sentence, and the criminal justice system generally.