The doctrinal landscape of internet-based personal jurisdiction is increasingly incoherent. Rules designed for a world of print and physical presence struggle to account for the realities of digital communication. Courts have treated virality and even conversational tagging, such as an @-mention of a forum resident, as evidence that a speaker purposefully directed their speech into that state. When speech alone is treated as the jurisdictional contact, nonresident defendants can be haled into distant courts they never expected, and lawful expression is chilled. By connecting personal jurisdiction fairness principles to First Amendment “chilling effect” principles, this Note offers a new framework for jurisdiction in the digital age—one that reflects the realities of online interaction and guards against litigation being used as a tool to silence critics.

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 concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.

Professor David Strauss attributes the U.S. Supreme Court’s reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper “victims” of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Under such elite “polarization,” Strauss worries the jurisprudential approach that emerged from Carolene Products allows for judicial intervention on behalf of groups loaded with political power. Even then, he insists on the classic liberal defense of the courts: that courts serve as an important if imperfect check against the majoritarian domination of minorities. But critical to such defenses is the unstated conjecture that elites are more enlightened than popular majorities.

In Dobbs v. Jackson Women’s Health Organization and Obergefell v. Hodges, the Justices who attack substantive due process law equate it with Lochner. Today, crying “Lochner” has so much force that it is often unclear what the objection itself entails. “Lochner” warns federal judges to defer to a legislature’s judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases do not concern such legislation. In this Essay, we supply an answer to the Lochner objection by demonstrating how judicial review of substantive due process claims can be democracy-promoting.

Among law students, lawyers, jurists, and legal academics, the reasoning contained in Supreme Court opinions forms the indispensable object of examination. The centrality of those opinions is instilled from the very first moments of law school, as professors direct their students to scrutinize this key paragraph, that critical sentence, even the odd momentous footnote. The rationales undergirding various Supreme Court opinions receive not mere study, but valorization, worship, and occasionally even ridicule. However, this Essay contends that such claims wildly exaggerate the actual significance of judicial opinions.

Once upon a time, not that long ago, we had a pretty good explanation for why judicial review exists. The premise is that, for the most part, important decisions in a nation like ours should be made by politically accountable officials, not by courts. Unavoidably, though, there will be defects in the democratic political process. The role of the courts is to correct those defects, to the extent they can. One such defect is that some groups may not have their fair share of political power. If that is true, then the courts should intervene to protect that group. But this account is not quite right, and it is incorrect in a way that suggests a deep problem with judicial review today.