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.

Commercial activities, like selling a car or serving hot coffee, can generate a risk of loss to which multiple individuals are exposed. When burdens and losses are distributed across multiple stakeholders, when should negligence law tolerate or condemn the risky choice? A famous answer at the center of the first-year curriculum invokes the Hand formula: The failure to avoid a risk is negligent when the sum of the burdens of risk-avoidance is less than the sum of the expected losses. This Article argues that the Hand formula should be applied to multiparty cases by, first, disaggregating burdens and losses and comparing them on a pairwise basis, starting with the individual who bears the highest burden and the one who bears the highest expected loss.

Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions.

In debates about the future of work, scholars and policymakers often treat economic efficiency and distributive justice as the principal values at stake. In this Article, I argue that neither a transaction cost-centric analysis of employment nor one focused only on distributive justice or equality fully conceptualizes all that is at stake in the institutional design and legal regulation of how we work. Here, I provide the first in-depth theorization of work as a site of relational transaction benefits, with a specific focus on law’s role in shaping them.

Amid the avalanche of recent important administrative law decisions, one case has received almost no scholarly attention: Corner Post, Inc. v. Board of Governors of the Federal Reserve System. In part, Corner Post expands judicial review for claims that an agency regulation violates the authorizing statute or the Constitution by allowing such substantive claims indefinitely. Congress should implement a six-year time bar for administrative procedure claims that accrues at the time of agency action, so that procedural claims would be allowed only for six years following a rulemaking. Otherwise, a court might invalidate a longstanding regulation because of an agency’s years-old violation of procedural requirements, even if the regulation perfectly implements the authorizing statute and is consistent with the Constitution.

The Pregnant Workers Fairness Act entitles many workers to “reasonable accommodations” for pregnancy-related medical conditions—so long as they do not impose an “undue hardship” on their employer. This Article addresses how the chaotic Americans with Disabilities Act doctrine will impact the PWFA’s implementation. The Article proposes a framework for litigants and courts assessing claims under the PWFA.

Scholars’ framing of Section 1983 as a “constitutional tort” and their focus on the qualified immunity doctrine miss the fundamental issue of Section 1983's transformation into a fault-based tort. This Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’ intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.

Past-due child support debt cannot be forgiven or discharged in bankruptcy. This policy is grounded in the assumption that all child support debt goes to a parent taking care of a child. However, billions of dollars of unpaid child support debt are instead owed to the government. Welfare debt often leads to a cycle of incarceration and criminal fines. This Article argues that for the bankruptcy system to uphold its normative principle of forgiving burdensome debt for the most economically vulnerable individuals, welfare debt must be forgiven.

“Suicide by cop” refers to encounters in which civilians intentionally provoke a lethal response from law enforcement. Police and their advocates have developed suicide by cop into junk science that serves as a broad defense against liability. This Article explores the origins and use of suicide by cop, and argues that police should be required to exercise a higher duty of care to protect people from excessive use of force.

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order.

Most people agree that the institution of contract serves autonomy—or that it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle, such as the authority of the individual will, promissory morality, or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale, and market determination of contract terms—facts to which both the common law and statutory regulation have long adjusted. This Article proposes a different approach to contract theory.

This Article employs recent philosophical advances in action theory and moral responsibility to critically examine the traditional purpose-knowledge-recklessness-negligence (PKRN) mens rea hierarchy of the Model Penal Code. It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm ought to be subject to greater criminal liability than actions that foreseeably result in risk of those same harms. The Article critically rethinks the standard mens rea hierarchy and show how we might amend current homicide doctrine (and the PKRN mens rea regime more generally) to allow more criminal liability for non-intentional police homicides like Derek Chauvin’s killing of George Floyd, relative to reluctant purposeful defendants.

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society. This Article explores the fundamental tension between scraping and privacy law. With the zealous pursuit and astronomical growth of AI, we are in the midst of what we call the “great scrape.” There must now be a great reconciliation.

Environmental law has an animal problem. It lacks an account of whether and how animals’ interests matter. Case in point: The agencies tasked with protecting wild animals cannot stop killing them. The National Oceanic and Atmospheric Administration slays sea lions to reduce predation on endangered salmon. The Fish and Wildlife Service shoots barred owls to curb competition with northern spotted owls. These widespread “removals” reflect a tension between safeguarding ecological collectives, such as species and ecosystems, and protecting individual animals.

“Social justice” is everywhere in public law. Scholars and activists are calling for racial justice, climate justice, and health justice, among other claims. When commentators speak about multiple different social justice claims, it is often through an intersectional lens that views these claims as co-constitutive with one another, such as, “There is no climate justice without racial justice.” These justice claims are important and long overdue. But conflicts between different social justice claims—what this Article calls “justice conflicts”—are inevitable in policymaking. Justice conflicts occur when the multiple social justice claims involved in a policy issue point to opposing outcomes.

Despite ongoing disagreement about how the Constitution allocates powers among the different branches, the two dominant schools of thought in American separation-of-powers debates—formalism and functionalism—agree on three premises: Certain powers inhere in certain government branches, some powers are vested exclusively in one or another branch, and the judiciary is the final arbiter of separation-of-powers disputes. Disagreement is largely about how powers should be parsed and which should be shared. Yet over the long lifespan of our constitutional tradition, momentous doctrinal upheavals are relatively commonplace. This Article describes four tectonic shifts in separation-of-powers doctrine: Founding-era debates about how to define and blend powers, nineteenth-century debates about the constitutionality of the nascent civil service, Lochner-era debates about legislatures’ authority to define and regulate public utilities, and mid-nineteenth-century debates about the sources of international law.

Amazon’s dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention—the Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon’s Brand Registry serves as a shadow trademark system that dramatically affects businesses’ incentives to seek legal registration of their marks. The result has been a surge in the number of applications to register, which has swamped the U.S. Patent and Trademark Office (PTO) and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners.