Does the party that provides the first draft of a merger agreement get better terms as a result? There is considerable lore among transactional lawyers on this question, yet it has never been examined empirically. In this Article, we develop a novel dataset of drafting practices in large M&A transactions involving US public-company targets. First…

The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among…

This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of…

Four months into the convulsive aftermath of the September 11 attacks, the first George W. Bush Administration began to detain “enemy combatant” designees at the American military base in Guantanamo Bay, Cuba (GTMO). With the exception of Yaser Hamdi, a man born in Louisiana but raised in Saudi Arabia, GTMO received only noncitizens…

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Article builds on Dicey by offering a comparative…

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory…

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to…

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second…

What would happen if the City of Chicago, the Chicago Public Schools, and Cook County all became insolvent at the same time? How should policy-makers and courts respond? This Article argues that the pension and budget crises that have left so many local governments deeply in debt have generated another looming problem: the prospect of…

A high-stakes debate has emerged around the legislative expansion of forensic DNA databases, a move that would assist thousands of criminal investigations but also raise profound privacy issues. In Maryland v. King, where the Court upheld the constitutionality of forced DNA sampling of arrestees, Justice Alito described the Court’s 2013 decision as “perhaps the most…

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we…

Regulatory arbitrage—defined as the manipulation of regulatory treatment for the purpose of reducing regulatory costs or increasing statutory earnings—is often seen in heavily regulated industries. An increase in the regulatory nature of copyright, coupled with rapid technological advances and evolving consumer preferences, have led to an unprecedented proliferation of regulatory arbitrage in the…

Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district…

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set…

Forced arbitration has long been controversial. In the 1980s, the Supreme Court expanded the Federal Arbitration Act (FAA), sparking debate about whether private dispute resolution was an elegant alternative to litigation or a rigged system that favors repeat-playing corporations. Recently, these issues have resurfaced, as the Court has decided a rash of cases mandating that…

The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms…

Over the last twenty years, state legislatures have passed a number of laws designed to support and encourage breastfeeding, including laws that protect public breastfeeding and lactating employees in the workplace. Both sides of the political aisle cheered the passage of these laws, and more recent federal laws, as an unqualified positive for women, families…

For decades, scholars have argued that the proper judicial response when democratically enacted laws burden politically powerless minority groups is more aggressive judicial review. This political process approach, however, has fallen on deaf ears at the Supreme Court since the 1970s. Justice Scalia was thus accurate (if not politic) when…

When Congress enacts command-and-control regulation, it chooses between implementation through litigation and courts, through bureaucracy, or through a hybrid regime. Since the late 1960s, the frequency with which Congress has relied on civil litigation for frontline enforcement of statutes grew dramatically, and with it grew rates of federal statutory litigation and the role of courts…

This Article describes and interrogates a phenomenon of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability…