Criminal Lying, Prosecutorial Power, and Social Meaning

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It offers a conceptual framework for violations of 18 U.S.C. § 1001 and related false statement charges by drawing distinctions between harmful deception and the typical investigative interaction and describing the range of lies that fall within the wide margins of […]

What’s Wrong with Victims’ Rights in Juvenile Court: Retributive versus Rehabilitative Systems of Justice

There has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the […]

Judging Journalism: The Turn toward Privacy and Judicial Regulation of the Press

Courts, John Marshall famously declared, must “say what the law is.” Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized […]

Courting Genocide: The Unintended Effects of Humanitarian Intervention

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting […]

Constitutional Constraints

The main ambition of “Constitutional Constraints” is to open up the subject of constitutional constraints on government officials, including Presidents and Supreme Court Justices, as a topic for discussion within the field of Constitutional Theory. The subject has so far received little comprehensive discussion in the law reviews, in part because of a division between […]

Ideology and Exceptionalism in Intellectual Property: En Empirical Study

This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, the authors show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely […]

A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights

This article challenges the standard narrative of the Lochner era by challenging one of its most basic assumptions: that the idea of right existing at the beginning of the twentieth century was the modern notion of right-as-trump. Precisely the opposite view prevailed during the first two decades of the century: rights could easily be trumped […]

Out of the Shadows: Preventive Detention, Suspected Terrorists, and War

Unlike many other developed (and developing) nations, the United States does not have a statute authorizing preventive detention without charges. U.S. law has no formal statutory mechanism by which such a person could be detained. Some have suggested that this is a potentially profound defect in our national security armature. Indeed, had a rational preventive […]

Yellow by Law

Over the past decade, scholars have paid increasing attention to Japanese-American constitutional history. For the most part, this literature focuses on the government’s decision during World War II to intern people of Japanese ancestry. But the trope of the Japanese as perpetual foreigners predates internment. My aim in this Article is to explore another historical […]

Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations

The article reveals a deep ambivalence in the law about the role of individual dissent within public and private settings and offers a way to reconcile the conflicting demands of organizational loyalty and legal compliance. It describes the vast inconsistencies that currently exist in the laws of private sector wrongful discharge, public employee First Amendment […]