Across the post-Dobbs United States, reports of pregnant people battling infections as severe as sepsis, experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news. Because of state abortion bans’ lack of clarity about medical exceptions and the overall chilling effect on abortion care, many patients are being denied the emergency care that they need or are being forced to wait until they are knocking on death’s door before medical staff can treat them. Healthcare professionals who work in states with criminal abortion bans face an impossible scenario that scholars have termed the “double abortion bind”: the impossible choice between, on the one hand, providing patients with emergency lifesaving abortions and facing potential criminal liability for violating their state’s abortion ban and, on the other hand, not providing emergency abortions and potentially losing their patients and facing medical malpractice claims for violating the standard of care. Litigators nationwide are fighting in state courts to clarify the medical exceptions in abortion bans. This Note asks what role tort claims—specifically, medical malpractice suits—can play in the area of emergency abortion access. Can torts realistically provide useful legal recourse for impacted patients and apply new pressure on healthcare industry actors to widen emergency abortion access?

Across the United States, immigrants held in for-profit detention centers participate, willingly or through degrees of coercion, in a work program that pays one dollar per day. For decades, the courts affirmed the legality of this practice and swiftly dismissed claims that participants in the program qualified for worker protections. But in the past decade, litigators, advocates, and academics have partnered with detained workers to successfully challenge the legality of these labor schemes, most recently scoring a unanimous victory at the Supreme Court. This Note outlines the various causes of action to claim workers’ rights in private immigration detention, particularly the under-researched but successful state law claims. Drawing on lessons learned from litigation across the country, this Note identifies obstacles to and opportunities for ending the exploitation of detained workers.

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim’s personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity—that is, making themselves and their information harder to find. This Article exposes privacy law’s complicity in this phenomenon of “brokered abuse.” Today, victims seeking obscurity can ask data brokers to remove their online information. But a web of privacy laws props up a fragmented and opaque system that forces victims to navigate potentially hundreds of distinct opt-out processes, wait months for their information to be removed, and then repeat this process continuously to ensure their information doesn’t resurface. In response, this Article proposes a new regulatory regime premised on a transformative reallocation of responsibility. In short, it proposes a techno-legal system that would enable victims to obscure their information across all data brokers with a single request, redistributing the burden away from victims and onto brokers. Such a system is justified, feasible, and constitutional.

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

This Article provides the first comprehensive account of the reconstruction of energy tax law that has occurred in the 2020s. In the past, federal energy policy offered carrots and sticks aimed selectively at specific sources of emissions (e.g., power plants) and specific green alternatives (e.g., solar and wind), even as academics urged the use of universal sticks like a carbon tax. But Congress has now charted a new path: performance-based carrots, or tax credits for any zero-emission energy technology (subject to certain politically driven exclusions). The only way to implement universal, performance-based carrots is to estimate the carbon intensity of every subsidy applicant. This is the task of carbon accounting. The Article makes two main arguments about the emergence of carbon accounting inside tax law. First, carbon accounting is surprisingly well suited to tax law because it will be informed by tax law’s experience with parallel normative and analytical principles, including a comprehensive tax base, additionality, liability shifting, and rate blending. But second, just as the income tax is susceptible to “tax shelters,” so too will firms develop “carbon shelters” that qualify for green subsidies while covertly making use of high-emission energy. Because of the difficulty of anticipating every carbon shelter in advance, an antishelter strategy needs deliberately over-broad anti-abuse rules, including some modeled on similar rules from tax law. If policymakers are to avoid inadvertently subsidizing unlimited emissions, they must be prepared to compromise on the principle of technology neutrality that motivates performance-based carrots in the first place.

To comply with the colorblind impulses of American antidiscrimination law, computer programmers tend to exclude race as a data input when constructing a machine learning algorithm. Yet scholars and advocates consistently argue that even these formally race-blind algorithms can racially discriminate by relying on so-called “proxies for race,” or variables that have a strong correlation with race, such as zip code, income, or prior criminal arrest. While a programmer wishing to respond to this argument might attempt to remove both race and all racial proxies from input data, their task is complicated by a key dilemma: The definition of a racial proxy is far from obvious. This Article examines the myriad definitions of a racial proxy proffered by courts, scholars, and state and private actors to demonstrate how race and racial assumptions become embedded in the machine learning algorithms that increasingly structure human life. Ultimately, what is at stake in the ability to define a racial proxy is a novel form of algorithmically driven racial construction, which permits the production of new and meaningful classes of individuals that can later be exposed to differing resources, opportunities, subordination, and privilege.