law article review

Administrative Subordination

I am grateful to Nick Almendares, Sahar Aziz, Monica Bell, Anya Bernstein, Emily Bremer, Emily Chertoff, Charlton Copeland, Blake Emerson, Sheila Foster, Andrew Hammond, Emily Hammond, Chris Havasy, Lisa Heinzerling, Sharon Jacobs, Amy Kapczynski, Joy Milligan, Athena Mutua, Eang Ngov, David Noll, Anne Joseph O’Connell, Nick Parrillo, Eloise Pasachoff, Aziz Rana, Ed Rubin, Fred Smith, David Zaring, and participants in the Yale Law School Administering a Democratic Political Economy Conference; Duke University School of Law Critical Legal Collective Convening; University of Minnesota Administrative Law New Scholarship Roundtable; American Constitution Society Junior Scholars Public Law Workshop; National People of Color Legal Scholarship Conference on Undoing Democracy; Association of American Law Schools Critical Leadership, Accountability, and Justice Within Organizations Panel; Power in the Administrate State Workshop; Critical Approaches to Public Law Workshop; George Washington University Law School Constitutional Law Colloquium; and the Indiana Maurer School of Law Workshop on Administrative Justice. Many thanks to Maxine Hart and Madeleine Kausel for their research assistance. All errors are my own.

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The authors are grateful for helpful feedback and suggestions from Aaron Bruhl, John C. Harrison, Carissa Hessick, Doug Laycock, Jake Linford, Darrell Miller, Caprice Roberts, and the participants in the Notre Dame Remedies Roundtable, the Standing Doctrine Conference at the Constitutional Law Institute at the University of Chicago, the Florida State University (FSU) College of Law Faculty Workshop, and the Remedies Works-in-Progress Session at the 2024 Annual Meeting of the Association of American Law Schools (AALS).

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective litigation, but rather ensure that such cases proceed through the proper channels (i.e., Rule 23) while preventing a range of unnecessary procedural, preclusive, remedial, and other complications.

Much of the scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable and marginalized people as a result of individualized bias or arbitrariness. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article introduces a framework of institutional oppression into the study of administration. This Article’s prescription is for institutional redesign. First, from the top down, Congress could utilize appropriations and pointed procedural interventions to influence how agencies exercise discretion. Second, from the bottom up, the President or agencies themselves could instigate efforts to use more accurate information and more meaningful process. Third, a focus on reviving a government of small, discrete agencies could constrain administrative discretion in ways that encourage agencies to rebalance their priorities.

Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability. This Comment seeks to make sense of how this and similar potential challenges would fare. Using the San Francisco vacancy tax as a concrete example, this Comment evaluates possible arguments that the tax effects a regulatory or physical taking. It contends that even this stringent vacancy tax would not be a taking, and highlights elements of a different vacancy tax or regulation that may tip the scales of this analysis. It explores original understandings of land use (and nonuse) regulations to argue that fines levied on the nonproductive use of property are a background principle of property law that generally precludes the conclusion that vacancy taxes are takings.

I would like to thank Professor Omri Ben-Shahar and the editors and staff of the University of Chicago Law Review for their thoughtful advice and support.

This Comment reviews Section 230 jurisprudence to develop a novel taxonomy for claims against social media platforms. It divides claims against platforms into three categories—content specific, content dependent, and content agnostic—based on the proximity of the alleged injury to user-generated content and the degree of the platform’s participation. This Comment also formalizes a remedies test that courts can use to distinguish legitimate content-agnostic claims from those in name only. Armed with this vocabulary, this Comment turns its attention to a number of cases pending against social platforms. Applying the remedies test, it determines that a handful of pending allegations give rise to legitimate content-agnostic claims. Noting that content-agnostic injuries are material but not yet fully understood, this Comment ultimately argues that an ex ante regulatory regime operationalized by an expert agency is better suited to address social-platform externalities than an ex post liability regime.

I would like to thank Professor Jonathan S. Masur, Tanvi Antoo, and all of the University of Chicago Law Review editors and staff for productive comments and feedback.

AI inventions have taken the world by storm. Many of these inventions are protected by patents. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment asks which AI inventions ought to receive patents. It concludes that AI methods and models should be patent eligible because they are likely to be incentivized by patents and unlikely to chill follow-on innovation. This Comment further argues that both the USPTO’s guidance and much of the Federal Circuit’s recent eligibility case law are inconsistent with finding these inventions patent eligible. However, the Federal Circuit demonstrated an understanding of eligibility that would allow patents for many AI methods and models in its 2016 McRO, Inc. v. Bandai Namco Games America Inc. decision. This Comment concludes by advocating that the Federal Circuit explicitly apply the holding of this case to hold that an AI invention is patent eligible at the first opportunity.

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He thanks the University of Chicago Law Review Online team for their careful feedback.

The legibility of handwriting is on the decline. Thankfully, calligraphy carries low stakes in a digital age. Why write something down when it can be typed instead? Yet, there is still one near-universal fragment of writing that must often be done by hand: the signature. While usually a formality, so long as signatures are done by hand, they can be second-guessed, threatening a generation untrained in cursive. This Essay highlights a recent incident in which a union representation election hinged on the legibility of one employee’s signature.

He thanks the University of Chicago Law Review Online team .

Is it OK for courts to think about race when they decide whether to bar certain arguments from being made, because they think those arguments could rely on stereotypes or otherwise play on the jury’s racial biases? For the Washington Supreme Court, the answer is yes—in fact, courts have a duty to consider race in making these evidentiary decisions. Rather than statements or arguments that are made with a clearly racist intent, the Washington Supreme Court’s idea of “racially biased arguments” is far more capacious: it includes “dog whistles,” or superficially harmless comments that have the effect of operating on a jury’s implicit biases.

Many thanks to Tara Leigh Grove, Eric Fish, and Logan Everett Sawyer for helpful feedback on this project. Maya Lorey, Alexandra Webb, and Erin Yonchak of the University of Chicago Law Review Online provided excellent editorial suggestions and assistance.

Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.

Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.

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The Local Lawmaking Loophole

This Article illustrates how contracts between local governments—interlocal agreements (ILAs)—play a powerful lawmaking function yet lack democratic accountability.  It traces the problem to state statutory schemes, where checks designed to promote transparency are ignored by state officials and cou…

Suing Cities

Current law makes it easy to sue cities. Too easy. While suing federal and state governments is notoriously difficult, various doctrines open courthouse doors to taxpayers, homeowners, and politically favored groups suing  local  governments. These doctrines further strengthen powerful actors, weaken …

The Glaring Gap in Tort Theory

The glaring gap in tort theory is its failure to take adequate account of liability insurance. We explain how to begin filling the gap in tort theory that results from omitting consideration of liability insurance, showing how liability insurance can appropriately figure in both deontic and conseque…

Ghostwriting Federalism

Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated…

Resisting Mass Immigrant Prosecutions

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective lega…

Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power

What is the source of jurisdictional power, or the power to say what the law is and give it force in a territory? This Article examines how this fundamental attribute of sovereignty historically arose, in America, from property and property institutions, especially the local, mundane, overlooked and…

The Unabridged Fifteenth Amendment

The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providin…

Deplatforming

This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American …

In Loco Reipublicae

This Article proposes a new framework for children in constitutional law that recognizes children’s rights as developing citizens and parents’ duties to safeguard those rights. An examination of children’s First Amendment right to access ideas illustrates parents’ duty to ensure children are exposed…

Deciphering the Commander-in-Chief Clause

At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping au…

Originalism-by-Analogy and Second Amendment Adjudication

In  New York State Rifle & Pistol Ass ’ n v. Bruen , the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but  Bruen ’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictabi…

Separation-of-Powers Avoidance

Federal judges are not mere arbiters of the separation of powers. Whenever they adjudicate cases, judicial power is implicated. This Article documents how this phenomenon impacts doctrine concerning the structural constitution and contends that we ought to be wary when this doctrine travels outside …

Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony

This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial manag…

The Modern State and the Rise of the Business Corporation

This Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. Corporate technologies require the support of a powerful state with the geographical reach, administrative power, and legal capacity necessary to enforce the law uniformly among …

The Weaponization of Attorney’s Fees in an Age of Constitutional Warfare

States are using the threat of catastrophic, one-sided fee awards to evade judicial review in controversial areas like abortion and gun control. Litigants challenging such laws—and their attorneys—face liability for the opposing party’s legal fees, while the state and its ideological allies bear no …

The Accountable Bureaucrat

An elected leader’s control may seem essential to bureaucratic accountability. But the administrative state itself better secures accountability’s core values. As this empirical study shows, complementarity between civil servants and political appointees; officials’ scrutiny of each other’s work; an…

Family Law for the One-Hundred-Year Life

Family law is failing older adults, offering neither the family forms older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. This Article responds to these challenges by proposing family law reform …

Equity’s Constitutional Source

This Article uncovers the federal equity power’s constitutional source. It argues that, as originally understood, Article III vests the federal courts with inherent power to grant equitable remedies and to adapt the federal system of equity in ways beyond what the Supreme Court’s current cramped, st…

Coordinated Rulemaking and Cooperative Federalism’s Administrative Law

Distilling patterns across cooperative federalism programs, this Article uncovers the distinctive cross-governmental administrative law—and the unusual rulemaking it facilitates—in our most consequential federal-state collaborations.

The Fourth Amendment and General Law

This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s…

The Antibody Patent Paradox

Shifts in patent law’s enablement and written description requirements make it impractical for patentees of antibody technologies to disclose and claim their inventions. We describe this as a doctrinal paradox and offer a solution that gives patentees the power to claim antibodies without giving the…

General Citizenship Rights

This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older c…

The Perils and Promise of Public Nuisance

Public nuisance is a puzzle: both a medieval action and a contemporary force in large-scale opioid settlements, it has provoked historical, formalist, and institutional objections. Close examination reveals, however, that public nuisance adheres to the common law’s accepted bounds and can play an im…

Interconstitutionalism

Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of consti…

Barbarians Inside the Gates: Raiders, Activists, and the Risk of Mistargeting

This Article argues that the conventional wisdom about corporate raiders and activist hedge funds—lambasting raiders and praising activists—is wrong. The authors explain how activists are more likely than raiders to engage in  mistargeting , implying they are also more likely to destroy value and, ult…

The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State

Scholars have long debated whether the administrative state is a democratic institution. This Article offers a new framework for analyzing this question—one drawn from agonistic democratic theory. It argues that agonism provides new grounding for the legitimacy of administrative agencies while also …

Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly

This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to c…

Navassa: Property, Sovereignty, and the Law of the Territories

The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.

The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories

This Article calls on the Supreme Court to overrule—rather than repurpose—the Insular Cases , and it points to constitutional doctrines beyond their reach that can preserve cultural practices without spawning a crisis of political illegitimacy in the unincorporated territories.

Aurelius ’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories”

The Article questions the wisdom of urging judicial overthrow of the Insular Cases without a rubric for the many doctrinal universes that might emerge from such an intervention. Ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-de…

Indigenous Subjects

Centering on the wide-ranging implications of the Supreme Court’s decision in  Rice v. Cayetano , this Article argues that the Court’s race jurisprudence threatens Indigenous self-determination and land rights in the territories. It concludes by offering several strategies that litigants can use to pr…

The Separation-of-Powers Counterrevolution

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in…

Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs

Benefit programs for families rely on rules to determine which individuals can claim which children. These rules shape who qualifies for a program and who does not. This Article critically assesses the design of child-claiming rules, using as case studies the Child Tax Credit and the Earned Income T…

Free-World Law Behind Bars

In the “free world,” we look to regulatory rather than constitutional law to keep us healthy, safe, and connected. But inside prison walls, regulatory law recedes. This Article considers its failure to protect prisoners; its substantive, procedural, and normative advantages over constitutional law; …

The Antitrust Duty to Deal in the Age of Big Tech

Tech platforms are often accused of refusing to deal with their competitors. But courts have largely killed off antitrust liability for such behavior, citing concerns that it would chill investment in new technologies. This Article argues that antitrust can protect investment without needlessly stif…

The History Wars and Property Law: Conquest and Slavery as Foundational to the Field

The version of American history we adopt matters for our understanding of law. In property law, we overlook how the land system underpinning the American real estate market developed, and how that market grew through racial inequality, if we do not examine conquest and slavery as foundational to the…

Bankruptcy Grifters

Bankruptcy grifters infiltrate the Chapter 11 process, seeking bankruptcy’s benefits for mass-tort defendants without incurring many of its costs. This Article concludes that bankruptcy should not be a procedural panacea for companies facing litigation exposure, and offers a number of potential solu…

The Corporate Governance Gap

This Article offers an empirical account of the differences in governance practices between large- and small-cap companies, resulting in what this Article terms the “Corporate Governance Gap.” Recognizing a disparity in the operation of driving forces that promote governance practices, the Article p…

The Emergence of Neutrality

This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jur…

Disparate Limbo: How Administrative Law Erased Antidiscrimination

Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative…

Rethinking Police Expertise

Judicial reasoning about police expertise has toggled between two distinct conceptions of expertise itself: as a professional virtue or a professional technology . Taking stock of both views offers new strategies in a range of disputes about police misconduct. It also illuminates debates about expert…

Unpacking Third-Party Standing

This Article “unpacks” the doctrine of third-party standing. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interests” concept. Second, it distinguishes among three types of parties invoking third-party sta…

Subordination and Separation of Powers

Liberty, accountability, and other values advanced by separation-of-powers tools such as the “power of the purse” come with real-world costs targeted at marginalized groups. Scholars and courts should account for such skewed impacts by including antisubordination among the values they consider in an…

Antitrust and Platform Monopoly

Large digital platforms often are not winner-take-all markets. As a result, antitrust has a role but breakup is rarely the right solution. Better options include incentivizing competition within the platform or forcing interoperability or information sharing. Current merger policy, however, is poorl…

The Constitutional Right of Self-Government

The Assembly Clause today serves little purpose. But long before the First Amendment ’ s drafting, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This Article argues that this right can be interpreted as a right to meaningfully partic…

A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indic…

Equity as Meta-Law

This Article interprets equity as law about law, or meta-law. Equity specializes in solving complex and uncertain problems, especially those involving multiple parties, conflicting rights, and opportunism. The Article reconstructs this function, diagnoses the ills of current equity, and charts a pat…

Police Reform Through a Power Lens

This Article examines recent social movements efforts to shift power over policing to those most harmed by mass criminalization. This focus on power-shifting—the power lens—opens up reform discussions to first-order questions about how the state should provide safety and security, with or without po…

The Race-Blind Future of Voting Rights

The world of voting rights could soon be turned upside down. A conservative Supreme Court might insist that minority voters' existing representation be compared to the representation they would receive if the redistricting process were race blind. This Article is the first to explore the potential c…

Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality

This Article proposes an innovative approach to addressing political inequality: using law to facilitate organizing by the poor and working class – as workers, tenants, debtors, and welfare beneficiaries. The Article offers a new direction for the literature on political inequality and critical less…

Retroactive Adjudication

This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead t…

Distorted Choice in Corporate Bankruptcy

Two new strategies—restructuring support agreements and deathtrap provisions—distort the voting process in nearly every big Chapter 11 case.  Although they could be banned, this Article, the first comprehensive assessment, calls for a more nuanced approach, outlining four rules of thumb for determin…

Expounding the Constitution

This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary …

The First Amendment and the Right(s) of Publicity

First Amendment analysis in right of publicity cases is notoriously troublesome. To remedy this nettlesome conflict, this Article disaggregates the distinct interests that support publicity laws, and then analyzes how these intersect with First Amendment values. By doing so it offers a navigational …

Commonsense Consent

How do ordinary people understand the concept of consent? This Article documents that laypersons, unlike most legal theorists, believe consent is compatible with fraud. It uses this discovery to revisit the so-called “riddle of rape-by-deception” and to interrogate the relationship between public at…

Federalism by Contract

Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, our domestic governments use written instruments to formally coordinate their activities. This Article analyzes these distinctive contract-like instruments in which both …

Law Within Congress

What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.

Competition Wrongs

Drawing on various forms of business law, this Article argues that misconduct in the marketplace can wrong other market actors even though those actors did not have a right against the misconduct. This argument challenges traditional philosophical and legal assumptions about rights and accountabilit…

Respect, Individualism, and Colorblindness

The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalen…

The Wandering Officer

This Article conducts a systematic investigation of “wandering officers”—law-enforcement officers fired by one department who find work at another agency. It reports on the prevalence, labor mobility, and behavior of these officers. The Article also considers explanations for their continued employm…

Probable Cause Pluralism

According to the Supreme Court, the most important phrase in the Fourth Amendment,  “ probable cause, ”   is not possible  to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement ,  while avo…

The Strategies of Anticompetitive Common Ownership

This Article examines the mechanisms through which anticompetitive effects may arise when institutional investors hold stakes in competing firms. Most mechanisms, including cartel facilitation and passive failures to encourage competition, either lack empirical evidence or else are contrary to the i…

Plessy Preserved: Agencies and the Effective Constitution

Federal officials enforced a “separate but equal” framework for public housing long after  Brown invalidated that principle.   This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that…

The New National Security Challenge to the Economic Order

Changes in national security policy pose a fundamental challenge to international economic law. Security policies worldwide encompass many emerging threats, from cyber vulnerabilities to climate change. This expansion potentially undermines the ability of investment and trade treaties to discipline …

Secret Reason-Giving

The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and polic…

Paid on Both Sides: Quid Pro Quo Exchange and the Doctrine of Consideration

The doctrine of consideration in contract is home to the law’s only substantial account of quid pro quo exchange—one that withers under philosophical scrutiny. By fleshing out the idea that exchange involves reciprocal payments, this Article offers both an original theory of exchange and a reconcept…

Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.  

The Statutory Separation of Powers

Separation of powers operates as an underappreciated structural principle in subconstitutional domains. Using the relationship between federal energy agencies as its primary case study, this Article argues that Congress creates statutory schemes of separation, checks, and balances in its delegations…

The Lessons of Lone Pine

Lone Pine orders have become a prominent fixture of the mass-tort landscape. So far, the orders have been mostly heralded as an inventive way to streamline the resolution of complex cases. Complicating that consensus, this Article analyzes drawbacks associated with this potent device and advocates r…

Sex in Public

This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to sig…

The Claims of Official Reason: Administrative Guidance on Social Inclusion

Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…

Bias In, Bias Out

The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment …

Empire States: The Coming of Dual Federalism

In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quas…

Sexual Privacy

New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy …

Pleading Poverty in Federal Court

Approximately forty million Americans live in poverty. Yet we know little about how they encounter the federal civil justice system. This Article provides the first survey of the in forma pauperis pleading standards of all ninety-four federal district courts. It reveals an inefficient and arbitrary …

Disparate Impact, Unified Law

Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems…

Regulatory Bundling

Administrative agencies can aggregate or disaggregate provisions during a single legislative rulemaking. Such regulatory bundling has been especially prevalent over the last two decades, with agencies including increasingly more subjects in their final rules. This Article explores this phenomenon, t…

The Forgotten History of Metes and Bounds

Property scholarship has long derided metes and bounds systems of land demarcation, largely accepting that standardized boundaries best facilitate economic growth. Through a case study of colonial New Haven, Connecticut, this Article suggests that metes and bounds descriptions actually provided earl…

Innovation Policy Pluralism

Intellectual property is not a monolith. It rewards innovators with temporary exclusive rights to their creations, and it conditions consumers’ access to such goods through proprietary pricing. Using this insight, this Article develops a more accurate framework for analyzing the innovation policy la…

An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing polit…

What Should We Do After Work? Automation and Employment Law

The existing fortress of employment-based rights and benefits is falling apart. The dominant legal responses to fissuring fail to meet, and even exacerbate, the challenge of contemporary automation. The way forward, this Article contends, must begin by separating what workers’ entitlements should be…

Litigating Data Sovereignty

Internet disputes increasingly occur across borders. The key question, this Article contends, is not whether states can exert control over data, but rather the shape their exercises of sovereign power will take. Given this reality, application of sovereign-deference doctrines represents the best hop…

The New Class Blindness

An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present…

Transparency’s Ideological Drift

From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transforma…

First-Person FOIA

This Article reveals that Freedom of Information Act requests at seven federal agencies are dominated by individuals seeking records about themselves, including immigration, investigation, and medical records. Yet FOIA is ill-suited to meet the vital needs of first-person requesters, and these reque…

The Obsolescence of Advertising in the Information Age

Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should …

International Lobbying Law

Consultation rules allow nonstate actors to gain special access to international institutions. While consultation once was understood as a means of  democratizing international institutions, to day, many consultants are industry and trade associations.  This Article reframes these rules as a body of lo…

The New Law of the Child

This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The authors show how the existing legal regime focuses narrowly on state and parental control over children, and they propose a new framework that promotes a broader range of children’s …

Petitioning and the Making of the Administrative State

This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrat…

The Jurisprudence of Mixed Motives

How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in co…

The De Facto Reporter’s Privilege

There is no formal, federal reporter’s privilege against disclosing confidential information. Drawing on new historical sources, this Article shows how all three branches of government have deployed a variety of de facto protections for reporters. These conclusions enrich our understanding of whethe…

Judging Ordinary Meaning

When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. This Article proposes to import those methods into statut…

Dangerous Defendants

Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equall…

Government Hacking

The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have …

Natural Rights and the First Amendment

This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern do…

Stuck! The Law and Economics of Residential Stagnation

America has become a nation of homebodies. This Article advances two central claims. First, declining interstate mobility rates create problems for federal macroeconomic policymaking. Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of leg…

How Qualified Immunity Fails

This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases.

The Nature of Parenthood

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary…

Machine Testimony

Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information—the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects…

Inside the Agency Class Action

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a re…

Why Have We Criminalized Aggressive War?

On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether …

Tort Law Inside Out

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body …

The Origins of Judicial Deference to Executive Interpretation

Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doc…

Localist Administrative Law

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrativ…

The Perils of Experimentation

More than eighty years after Justice Brandeis coined the phrase “laboratories of democracy,” the concept of policy experimentation retains its currency as a leading justification for decentralized governance. This Article examines the downsides of experimentation, and in pa…

Shareholder Proposal Settlements and the Private Ordering of Public Elections

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, s…

The Cycles of Separation-of-Powers Jurisprudence

abstract.The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seem…

The New Labor Law

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining am…

Probate Lending

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibitio…

The President’s Budget as a Source of Agency Policy Control

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely…

Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality

The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however…

Administrative Forbearance

This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Artic…

Governance Reform and the Judicial Role in Municipal Bankruptcy

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and limitations of using the Bankruptcy Code to adjust municipal debt. In this Article, we contend that, to resolve fully the distress of a substantial city, mun…

Professional Speech

Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive a…

The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Rec…

The First Patent Litigation Explosion

The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of toda…

Corporate Control and Idiosyncratic Vision

This Article offers a novel theory of corporate control. It does so by shedding new light on corporate-ownership structures and challenging the prevailing model of controlling shareholders as essentially opportunistic actors who seek to reap private benefits at the expense of minor…

The Un-Territoriality of Data

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorit…

Political Entrenchment and Public Law

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and sch…

Against Immutability

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but…

The President and Immigration Law Redux

In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and en…

The New Corporate Web: Tailored Entity Partitions and Creditors’ Selective Enforcement

Firms have developed sophisticated legal mechanisms that partition assets across some dimensions but not others. The result is a complex web of interconnected affiliates. For example, an asset placed in one legal entity may serve as collateral guaranteeing the debts of anot…

Defining and Punishing Offenses Under Treaties

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particu…

Administrative Severability Clauses

Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules becaus…

The Constitutional Duty To Supervise

The IRS targets Tea Party organizations’ applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsi…

Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment

The built environment is characterized by man-made physical features that make it difficult for certain individuals—often poor people and people of color—to access certain places. Bridges were designed to be so low that buses could not pass under …

Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction

Students of Article III have so far failed to resolve a fundamental tension in the theory of federal adjudication. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom seeks redress for an …

Beyond Diversification: The Pervasive Problem of Excessive Fees and "Dominated Funds" in 401(k) Plans

Notwithstanding ERISA’s fiduciary requirements, a significant portion of 401(k) plans establish investment menus that predictably lead investors to hold high-cost portfolios. Using data from more than 3,500 401(k) plans with more than $120 billion i…

The Uneasy Case for Favoring Long-Term Shareholders

This Article challenges a persistent and pervasive view in corporate law and corporate governance: that a firm’s managers should favor long-term shareholders over short-term shareholders, and maximize long-term shareholders’ returns rather than th…

Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law

The historian Raul Hilberg once observed that we would all be happier if we believed the perpetrators of the Holocaust were crazy. But mass atrocity is never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the madman or the devi…

Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications

Some members of Congress, the D.C. Circuit, and the legal academy are promoting a particular, abstract form of cost-benefit analysis for financial regulation: judicially enforced quantification. How would CBA work in practice, if applied to specific,…

Beyond the Indian Commerce Clause

This Article uses unexamined historical sources to argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. T his history provides a more solid foundation for doctrinal principles derided as incoherent, and suggests more cabi…

Rules Against Rulification

The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a r…

The Limits of Enumeration

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article a…

Agency Enforcement of Spending Clause Statutes: A Defense of the Funding Cut-Off

This Article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agen…

Criminal Attempts

The intuitive idea that failed attempts to complete crimes are often themselves crimes belies the complexity and confusion surrounding the adjudication of criminal attempts. This Article offers an account of the grounds for the criminalization of att…

Self-Help and the Separation of Powers

Self-help doctrines pervade the law. They regulate a legal subject’s attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call count…

Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation

Tracing the racially nativist origins of modern gender-based derivative citizenship law

Legitimacy and Federal Criminal Enforcement Power

The sources of forum disparities in criminal justice reconsidered

The Power to Threaten War

Reframing the war powers debate

The New Minimal Cities

Between 2007 and 2013, twenty-eight urban municipalities declared bankruptcy or entered a state receivership to manage fiscal insolvency. To cut costs and divert revenues to debt payments, these cities have taken dramatic austerity measures—an unwitting experiment wit…

The Separation of Funds and Managers: A Theory of Investment Fund Structure and Regulation

abstract.This Article offers a broad theory of what distinguishes investment funds from ordinary companies, with ramifications for how these funds are understood and regulated. The central claim is that investment funds (i.e., mutual funds, hedge funds, private equity funds, and their …

Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950

A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The result…

The Interpretation-Construction Distinction in Patent Law

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to develop…

The Evolution of Shareholder Voting Rights: Separation of Ownership and Consumption

The nineteenth century saw the standardization and rapid spread of the modern business corporation around the world. Yet those early corporations differed from their contemporary counterparts in important ways. Most obviously, they commonly deviated from the one-share-one…

Ice Cube Bonds: Allocating the Price of Process in Chapter 11 Bankruptcy

In Chrysler’s Chapter 11 bankruptcy, a finding that the debtor was losing $100 million per day justified the hurry-up sale of the company to Fiat. The assertion that a firm is a melting ice cube is frequently offered, soon after a bankruptcy filing, to justify a qui…

Agencies as Litigation Gatekeepers

A central challenge in the modern regulatory state is rationalizing and coordinating multiple, overlapping, and interdependent public and private enforcement mechanisms. To that end, recent years have seen mounting calls to vest administrative agencies with litigation …

Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker

Firearm localism.

This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation. Doing so would protect rural gun culture while permitting cities to address urban gun violence.

City Unplanning

122 Yale L.J. 1670 (2013). Generations of scholarship on the political economy of land use have tried to explain a world in which tony suburbs use zoning to keep out development but big cities allow untrammeled growth because of the political influence of developers. But as demand to live in them has…

Rethinking the Federal Eminent Domain Power

122 Yale L.J. 1738 (2013). It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was t…

The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

122 Yale L.J. 1372 (2013). “Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in vir…

Commandeering and Constitutional Change

122 Yale L.J. 1104 (2013). Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of hi…

Parallel Exclusion

122 Yale L.J. 1182 (2013). Scholars and courts have long debated whether and when “parallel pricing”—adoption of the same price by every firm in a market—should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of “parallel exclusion”—conduct, enga…

Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second

122 Yale L.J. 852 (2013). In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts hav…

Fudging the Nudge: Information Disclosure and Restaurant Grading

122 Yale L.J. 574 (2012). One of the most promising regulatory currents consists of “targeted” disclosure: mandating simplified information disclosure at the time of decisionmaking to “nudge” parties along. Its poster child is restaurant sanitation grading. In principle, a simple posted letter grade …

The Disappearance of Civil Trial in the United States

122 Yale L.J. 522 (2012). Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so ra…

Welfare and Rights Before the Movement: Rights as a Language of the State

122 Yale L.J. 314 (2012).

In conversations about government assistance, rights language often emerges as a danger: when benefits become “rights,” policymakers lose flexibility, taxpayers suffer, and the poor lose their incentive to work. Absent from the discussion is an understanding of how, when, …

Aggregation and Law

122 Yale L.J. 2 (2012). If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent …

A Decision Theory of Statutory Interpretation: Legislative History by the Rules

122 Yale L.J. 70 (2012).

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article ar…

Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?

121 Yale L.J. 2118 (2012) .

We report the results of the first of a series of randomized evaluations of legal assistance programs. This series of evaluations is designed to measure the effect of both an offer of and the actual use of representation, although it was not possible in the first study …

Regulating Opt-Out: An Economic Theory of Altering Rules

121 Yale L.J. 2032 (2012) . Whenever a rule is contractible, the law must establish separate rules governing how private parties can contract around the default legal treatment. To date, contract theorists have not developed satisfying theories for how to set “altering rules,” the rules that establish…

Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments

121 Yale L.J. 1584 (2012) . The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statu…

Rights and Votes

121 Yale L.J. 1286. This Article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). …

Dissolving Cities

121 Yale L.J. 1364.

During the twentieth century, thousands of new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable numb…

What Is Tax Discrimination?

121 Yale L.J. 1014 (2012) . Prohibitions of tax discrimination have long appeared in constitutions, tax treaties, trade treaties, and other sources, but despite their ubiquity, little agreement exists as to how such provisions should be interpreted. Some commentators have concluded that tax discrimina…

Burden of Proof

121 Yale L.J. 738 (2012).

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. I…

Patent Inflation

121 Yale L.J. 470 (2011) . For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular fail…

Outcasting: Enforcement in Domestic and International Law

121 Yale L.J. 252 (2011). This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such …

Prods and Pleas: Limited Government in an Era of Unlimited Harm

121 Yale L.J. 350 (2011).

Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertai…

Misalignments in Tort Law

121 Yale L.J. 82 (2011). In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damages. I call this the “alignment principle.” One objective of this Article is to expose exceptions to the alignment p…

The Architecture of Jurisprudence

121 Yale L.J. 2 (2011). Contemporary jurisprudence has been dominated by an unhelpful interest in taxonomy. A conventional wisdom has grown up around these projects. This Article, the first in a three-part series, identifies two dominant claims of this conventional wisdom in jurisprudence—one substantiv…

Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine

120  Yale L.J.  1898 (2011). 

Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though s…

120 Yale L.J. 1898 (2011). 

The Inducement Standard of Patentability

120 Yale L.J. 1590 (2011). 

In Graham v. John Deere Co. , the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents to only “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that th…

Taxation and Liquidity

120 Yale L.J. 1682 (2011). 

One of the principal determinants of an asset’s return is its liquidity—the ease with which the asset can be bought and sold. Liquid assets yield a lower return than do otherwise comparable illiquid assets. This Article demonstrates that an income tax alters the tradeoff…

From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases

120 Yale L.J. 1278 (2011). 

For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned wi…

Associational Speech

120 Yale L.J. 978 (2011). 

This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a sub…

Allocating Power Within Agencies

120 Yale L.J. 1032 (2011). 

Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental …

Remedies On and Off Contract

120 Yale L.J. 690 (2011). 

Liberal allowance of rescission followed by restitution has, for centuries, unsettled legal authorities who fear it as a threat to commercial order or other normative values. Responding to these fears, authorities have limited the ease with which rescission may be elected…

Discrimination by Comparison

120 Yale L.J. 728 (2011). 

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic fo…

The One and Only Substantive Due Process Clause

120 Yale L.J. 408 (2010). 

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to prote…

Withdrawing from International Custom

120 Yale L.J. 202 (2010). 

Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to…

Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut

120 Yale L.J. 276 (2010). 

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exemp…

Patent Law and the Two Cultures

120 Yale L.J. 2 (2010). 

A half-century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, …

Taking Exit Rights Seriously: Why Governance and Fee Litigation Don’t Work in Mutual Funds

120 Yale L.J. 84 (2010). 

Unlike shareholders of ordinary companies, mutual fund shareholders do not sell their shares—they redeem them from the issuing funds for cash. We argue that this unique form of exit almost completely eliminates mutual fund investors’ incentives to use voting, boards, and f…

The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism

119 Yale L.J. 1750 (2010). 

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of ju…

Federal Administration and Administrative Law in the Gilded Age

119 Yale L.J. 1362 (2010). 

The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding…

Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"

119 Yale L.J. 1474 (2010). 

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough d…

The Politics of Nature: Climate Change, Environmental Law, and Democracy

119 Yale L.J. 1122 (2010). 

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwi…

Strategic Vagueness in Contract Design: The Case of Corporate Acquisitions

119 Yale L.J. 848 (2010). 

The unprecedented and unanticipated economic and financial shocks of the past couple of years have led parties to look for contractual escapes from deals. As the current crisis works its way through our economic system, however, attention will be shifted from the collaps…

Antibankruptcy

119 Yale L.J. 648 (2010). 

In large Chapter 11 cases, the prototypical creditor is no longer a small player holding a claim much like everyone else’s, but rather a distressed debt professional advancing her own agenda. Secured creditors are more pervasive and enjoy much more control than they had e…

Fourth Amendment Seizures of Computer Data

119 Yale L.J. 700 (2010). 

What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the …

Property as Process: How Innovation Markets Select Innovation Regimes

119 Yale L.J. 384 (2009). 

It is commonly asserted that innovation markets suffer from excessive intellectual property protections, which in turn stifle output. But empirical inquiries can neither confirm nor deny this assertion. Under the agnostic assumption that we cannot assess directly whether …

The President and Immigration Law

119 Yale L.J. 458 (2009). 

The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has…

Government in Opposition

119 Yale L.J. 548 (2009).

In the past generation, in countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged in greater numbers, what this Article calls “government in opposition.” After democratic elections are …

Presidential Power over International Law: Restoring the Balance

119 Yale L.J. 140 (2009). 

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm tr…

Proposing a Place for Politics in Arbitrary and Capricious Review

119 Yale L.J. 2 (2009). 

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the no…

In Defense of Property

118 Yale L.J. 1022 (2009).

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of i…

Uncooperative Federalism

118 Yale L.J. 1256 (2009). 

This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outsid…

The Classic Rule of Faith and Credit

118 Yale L.J. 1584 (2009).

Since the late nineteenth century, orthodox doctrine under the Constitution’s Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States was essentially…

The Case for Symmetry in Creditors' Rights

118 Yale L.J. 806 (2009).

Using an original framework for evaluating bankruptcy rules, this Article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor’s assets. Such arrangements, which I classify as asymmetr…

Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages

118 Yale L.J. 392 (2008).

In Philip Morris USA v. Williams , the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, …

Learning Through Policy Variation

118 Yale L.J. 480 (2008).

Rationalist analysis of policymaking, exemplified by cost-benefit analysis, ignores the variance in outcomes associated with policies and seeks to maximize expected outcomes. Burkeans, by contrast, view policy outcome uncertainty negatively. The Burkean approach is echo…

Suspension as an Emergency Power

118 Yale L.J. 600 (2009).

As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand …

The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright

118 Yale L.J. 186 (2008).

The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo…

The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs

118 Yale L.J. 2 (2008).

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balan…

Normative Canons in the Review of Administrative Policymaking

118 Yale L.J. 64 (2008).

Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress—norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separa…

Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861

117 Yale L.J. 1568 (2008).

Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political refor…

Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

117 Yale L.J. 1236 (2008).

Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative…

Just Semantics: The Lost Readings of the Americans with Disabilities Act

117 Yale L.J. 992 (2008).

Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the…

Race and Democratic Contestation

117 Yale L.J. 734 (2008).

As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that…

The Access to Knowledge Mobilization and the New Politics of Intellectual Property

117 Yale L.J. 804 (2008).

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have…

Antislavery Courts and the Dawn of International Human Rights Law

117 Yale L.J. 550 (2008).

Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts …

Consumerism Versus Producerism: A Study in Comparative Law

117 Yale L.J. 340 (2007).

The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) …

The Constitution Outside the Constitution

117 Yale L.J. 408 (2007).

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitu…

The Promise and Pitfalls of the New Voting Rights Act

117 Yale L.J. 174 (2007).

In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glos…

Contracting for Cooperation in Recovery

117 Yale L.J. 2 (2007).

There is a longstanding debate about whether courts should enforce contract terms purporting to limit the parties’ liability for fraud. It is less-often noticed that many contracts are designed to incorporate fraud liability by requiring one party to make representations abo…

Intellectual Property as Property: Delineating Entitlements in Information

This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms o…

Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…

Property and Half-Torts

116 Yale L.J. 1400 (2007)

The idea that a tort can be split analytically into two parts—risk and harm—underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed’s famous entitlement framework. Thus, in discussing an “ent…

Risk Aversion and Rights Accretion in Intellectual Property Law

116 Yale L.J. 882 (2007)

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence ( vel non )…

The Constitutional Foundations of Chenery

116 Yale L.J. 952 (2007)

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review…

Chevron as a Voting Rule

116 Yale L.J. 676 (2007) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…

The Corporate Origins of Judicial Review

116 Yale L.J. 502 (2006) This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continu…

Unpacking the Household: Informal Property Rights Around the Hearth

As Aristotle recognized in The Politics , the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, h…

Education, Equality, and National Citizenship

116 Yale L.J. 330 (2006) For disadvantaged children in substandard schools, the recent success of educational adequacy lawsuits in state courts is a welcome development. But the potential of this legal strategy to advance a national goal of equal educational opportunity is limited by a sobering and l…

How To Remove a Federal Judge

116 Yale L.J. 72 (2006) Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, a…

Criminal Law Comes Home

116 Yale L.J. 2 (2006) Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misd…

Beyond Lawrence : Metaprivacy and Punishment

115 Yale L.J. 1862 (2006) Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty –and communitarian–William Eskridge has described it as the ga…

Good Governance at the Supranational Scale: Globalizing Administrative Law

115 Yale L.J. 1490 (2006) This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…

Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…

Recovering American Administrative Law: Federalist Foundations, 1787-1801

115 Yale L.J. 1256 (2006) By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was mi…

Income Tax Discrimination and the Political and Economic Integration of Europe

115 Yale L.J. 1186 (2006) In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions h…

Managing Transitional Moments in Criminal Cases

115 Yale L.J. 922 (2006) As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court de…

Immoral Purposes: Marriage and the Genus of Illicit Sex

115 Yale L.J. 756 (2006) In Lawrence v. Texas , the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence , however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illi…

Anticipating Litigation in Contract Design

115 Yale L.J. 814 (2006) Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design i…

The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs

115 Yale L.J. 524 (2005) In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional d…

Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes

115 Yale L.J. 356 (2005) This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in tru…

Rethinking Civil Rights Lawyering and Politics in the Era Before Brown

115 Yale L.J. 256 (2005) This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education . That traditional narrative has relied on a legal liberal view of civil r…

Fixing Freezeouts

115 Yale L.J. 2 (2005) Freezeout transactions, in which a controlling shareholder buys out the minority shareholders, have occurred more frequently since the stock market downturn of 2000 and the Sarbanes-Oxley Act of 2002. While freezeouts were historically executed as statutory mergers, recent Dela…

The City and the Poet

114 Yale L.J. 1835 (2005) Although it is a contemporary of law and economics, law and literature has never secured widespread uptake in the legal academy. In this Article, Professor Yoshino explains the relative anemia of the discipline and prescribes a cure. Law has an incentive to distance itself f…

The Sarbanes-Oxley Act and the Making of Quack Corporate Governance

114 Yale L.J. 1521 (2005) This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical …

Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?

114 Yale L.J. 929 (2005) The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries.…

On the Alienability of Legal Claims

114 Yale L.J. 697 (2005) Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales …

The Right To Destroy

114 Yale L.J. 781 (2005) Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy,…

The Defined Contribution Paradigm

114 Yale L.J. 451 (2004) Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. This Article suggests that over the last generation something more fundamental, which can justly be called a paradigm shift, has…

The Federalist Dimension of Regulatory Takings Jurisprudence

114 Yale L.J. 203 (2004) Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in backgro…

The Future of Disability Law

114 Yale L.J. 1 (2004) Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appe…

The Eleventh Amendment and the Reading of Precise Constitutional Texts

113 Yale L.J. 1663 (2004) INTRODUCTION In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their …

The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s

113 Yale L.J. 1341 (2004) The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain inte…

Contract and Collaboration

113 Yale L.J. 1417 (2004) Promises and contracts establish relations among the persons who engage them, and these relations lie at the center of persons' moral and legal experience of one another. But the most prominent accounts of these practices nevertheless remain firmly individualistic, seeking …

The Two Western Cultures of Privacy: Dignity Versus Liberty

113 Yale L.J. 1151 (2004) Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and …

The Integration of Tax and Spending Programs

113 Yale L.J. 955 (2004) This Article provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expe…

Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits

113 Yale L.J. 815 (2004) The 1996 welfare law passed amidst promises to reduce welfare rolls without abandoning needy families. A strong economy, state work support programs, and the efforts of millions of low-income parents brought substantial reductions in the ranks of those eligible for cash assis…

Contract Theory and the Limits of Contract Law

113 Yale L.J. 541 (2003) This Article sets out a normative theory to guide decisionmakers in the regulation of contracts between firms. Commercial law for centuries has drawn a distinction between mercantile contracts and others, but modern scholars have not systematically pursued the normative impli…

Punitive Damages as Societal Damages

113 Yale L.J. 347 (2003) Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under cu…

How To Fix Wall Street: A Voucher Financing Proposal for Securities Intermediaries

113 Yale L.J. 269 (2003) Securities market intermediaries reduce the collective action problem facing investors in the capital markets. Analysts provide securities research. Proxy advisory firms assist investors in determining how to vote their shares. Even shareholders bringing proxy contests can be…

An Old Judicial Role for a New Litigation Era

113 Yale L.J. 27 (2003) Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old …

Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

112 Yale L.J. 1943 (2003) The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…

The Sanitized Workplace

112 Yale L.J. 2061 (2003) One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come …

What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

112 Yale L.J. 1943 (2003) When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…

In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State

112 Yale L.J. 1641 (2003) This Article argues that the law has constructed marriage as an institution capable of regulating the rights and responsibilities of even unmarried women. In various ways, the law has constructed the rights of certain groups of unmarried women "in the shadow of marriage": Th…

Conspiracy Theory

112 Yale L.J. 1307 (2003) Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justificatio…

Piercing the Veil

112 Yale L.J. 1399 (2003) Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, cultur…

Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

112 Yale L.J. 1011 (2003) This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the l…

Why Above-Cost Price Cuts To Drive Out Entrants Are Not Predatory--and the Implications for Defining Costs and Market Power

112 Yale L.J. 681 (2003) Recently, European and U.S. officials have made surprising moves toward restricting firms from using above-cost price cuts to drive out entrants. This Article argues that these legal developments likely reflect the fact that scholarly critiques of cost-based tests of predator…

Coase's Penguin, or, Linux and The Nature of the Firm

112 Yale L.J. 369 (2002) For decades our common understanding of the organization of economic production has been that individuals order their productive activities in one of two ways: either as employees in firms, following the directions of managers, or as individuals in markets, following price si…

Are Police Free To Disregard Miranda?

112 Yale L.J. 447 (2002) This Article contends that the common understanding of Miranda as a direct restraint on custodial interrogation by police is mistaken. Instead, Miranda, like the privilege against compulsory self-incrimination that serves as its constitutional foundation, is a rule of admissi…

The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

112 Yale L.J. 153 (2002) How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of The History of the Countermajoritarian Difficulty. The piece explains that the counter…

The Freedom of Imagination: Copyright's Constitutionality

112 Yale L.J. 1 (2002) In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America. Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic fr…

The Political Economy of School Choice

111 Yale L.J. 2043 (2002) This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not sup…

Do Human Rights Treaties Make a Difference?

111 Yale L.J. 1870 (2002) Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in chan- ging changing states' behavior for the better? This Article addresses these questions through a large-scale quan- titative analysis of the relationship be…

The Law and Economics of Reverse Engineering

111 Yale L.J. 1575 (2002) Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such info…

The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt

111 Yale L.J. 1499 (2002) Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--n…

Framing Transactions in Constitutional Law

111 Yale L.J. 1311 (2002) Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the foc…

Waging War, Deciding Guilt: Trying the Military Tribunals

111 Yale L.J. 1259 (2002) In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today…

The Anti-Antidiscrimination Agenda

111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …

Architecture as Crime Control

111 Yale L.J. 1039 (2002) Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cybersp…

111 Yale L.J. 769 (2002) In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory…

111 Yale L.J. 547 (2001) Givings-government acts that enhance property value-are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical…

Corporations and Human Rights: A Theory of Legal Responsibility

111 Yale L.J. 443 (2001) The path of international law over the last century has been one of increasing both the breadth and the depth of its coverage. Its breadth has grown through the addition of new areas for regulation, whether the environment, telecommunications, health, or human rights; and its…

The Executive Power over Foreign Affairs

111 Yale L.J. 231 (2001) This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the United States government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitut…

A Dilution Mechanism for Valuing Corporations in Bankruptcy

111 Yale L.J. 83 (2001) This Article proposes a new mechanism for valuing firms in bankruptcy. Under the "senior dilution" mechanism, a court would dilute the reorganized stock issued to senior claimants by issuing additional shares to junior claimants until there was no excess demand for the stock a…

The Rise of Dispersed Ownership The Roles of Law and the State in the Separation of Ownership and Control

111 Yale L.J. 1 (2001) Deep and liquid securities markets appear to be an exception to a worldwide pattern in which concentrated ownership dominates dispersed ownership. Recent commentary has argued that a dispersed shareholder base is unlikely to develop in civil-law countries and transitional econo…

Currency Policies and Legal Development in Colonial New England

110 Yale L.J. 1303 (2001) This Article presents a new interpretation of the relation of law to economic development in colonial New England. Prior legal historical scholarship has focused almost exclusively on judicial decisionmaking, emphasizing judges' role in adapting the law in some optimal way …

Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

110 Yale L.J. 1097 (2001) Last June, in Apprendi v. New Jersey , the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that…

Federal Regulation of State Court Procedures

110 Yale L.J. 947 (2001) May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitution…

Rethinking the Puzzle of Escalating Penalties for Repeat Offenders

110 Yale L.J. 733 (2001) The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabi…

The Liberal Commons

110 Yale L.J. 549 (2001) Must we choose between the benefits of cooperative use of scarce resources and our liberal commitments to autonomy and exit? No. Well-tailored law can mediate between community and liberty, between commons and private property. Our theory of the liberal commons provides a fra…

The Essential Role of Organizational Law

110 Yale L.J. 387 (2000) In every developed market economy, the law provides for a set of standard-form legal entities. In the United States, these entities include, among others, the business corporation, the cooperative corporation, the nonprofit corporation, the municipal corporation, the limited …

A Liberal Theory of Social Welfare: Fairness, Utility, and the Pareto Principle

110 Yale L.J. 173 (2000) Amartya Sen shows how liberal rights can produce outcomes that everyone would prefer to avoid, thereby violating the Pareto principle. Similarly, Louis Kaplow and Steven Shavell identify potential conflicts between the Pareto principle and notions of "fairness," which give we…

Optimal Standardization in the Law of Property: The Numerus Clausus Principle

110 Yale L.J. 1 (2000) In all postfeudal legal systems, the basic ways of owning property are limited in number and standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invok…

Announcing the First-Year Editors of Volume 134

Announcing the second annual academic summer grants program, volume 133’s emerging scholar of the year: robyn powell, featured content, lock them™ up: holding transnational corporate human-rights abusers accountable, administrative law at a turning point, law and movements: clinical perspectives.

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Volume 76, in memoriam: justice sandra day o’connor, august 2024, introduction, justice sandra day o’connor, looking back and looking forward, by   bella m. ryb, eulogy for justice sandra day o’connor, washington national cathedral, december 19, 2023, by   chief justice john g. roberts, jr., “help others along the way”, justice sandra day o’connor’s life lessons, by   ivan fong, why you should hire sandra day, in her own words, by   michelle t. friedland, being an icon, reflections on sandra day o’connor, by   lisa kern griffin, the bridge builder, by   bradley w. joondeph, the many sides of sandra day o’connor, by   larry kramer, lessons i learned from soc on life, law, decency, and the public good, by   crystal nix-hines, justice o’connor’s religion clauses legacy, by   eugene volokh, view current & past print volumes, recent online essays, california, an island, by lincoln l. davies, stephanie lenhart.

Lincoln L. Davies and Stephanie Lenhart warn that the energy future of the Western United States will be determined by the choices California makes over the next two years. Davies and Lenhart urge California to move towards a regional western electricity market to improve energy efficiency, reliability, and sustainability, and to avoid isolating California’s electricity market.

The Pardon Power and Federal Sentence-Reduction Motions: A Response to Yost and Flowers

By jaden m. lessnick.

In his response to Ohio Attorney General Dave Yost and former Ohio Solicitor General Benjamin Flowers, Jaden Lessnick argues that the federal sentence-reduction statute (18 U.S.C. § 3582(c)(1)(A)) is not preempted by the presidential pardon power. Lessnick contends that the statute does not offend the traditional separation-of-powers principle, and preemption is not justified under the unitary executive theory.

Alternative Action After SFFA

By kim forde-mazrui.

Prof. Kim Forde-Mazrui of the University of Virginia responds to Sonja Starr’s print Article, The Magnet School Wars and the Future of Colorblindness . Forde-Mazrui argues that even if courts adopt the “ends-colorblindness” framework described by Starr, “alternative action” policies meant to promote diversity may still be constitutionally permissible.

The Making of the A2J Crisis

By nora freeman engstrom & david freeman engstrom.

Access to justice has become a defining legal and political issue. In this Essay, Nora Freeman Engstrom and David Freeman Engstrom work to identify the cause of the Access to Justice Crisis.

The Criminally Complicated Copyright Questions about Trump’s Mugshot

By cathay y. n. smith.

The mugshot taken of Donald Trump in connection with his Georgia criminal prosecution has become one of the defining political images of the time. In this Essay, Cathay Y. N. Smith discusses who owns the copyright to this iconic photo.

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Artificial Intelligence and the Law

Legal scholars on the potential for innovation and upheaval.

• December 5, 2023
• Tomas Weber
• Illustrations by Joan Wong | Photography by Timothy Archibald
• Fall 2023 – Issue 109
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Earlier this year, in Belgium, a young father of two ended his life after a conversation with an AI-powered chatbot. He had, apparently, been talking to the large language model regularly and had become emotionally dependent on it. When the system encouraged him to commit suicide, he did. “Without these conversations with the chatbot,” his widow told a Brussels newspaper, “my husband would still be here.”

A devastating tragedy, but one that experts predict could become a lot more common.

As the use of generative AI expands, so does the capacity of large language models to cause serious harm. Mark Lemley (BA ’88), the William H. Neukom Professor of Law, worries about a future in which AI provides advice on committing acts of terrorism, recipes for poisons or explosives, or disinformation that can ruin reputations or incite violence.

The question is who, if anybody, will be held accountable for these harms?

“We don’t have case law yet,” Lemley says. “The company that runs the AI is not doing anything deliberate. They don’t necessarily know what the AI is going to say in response to any given prompt.” So, who’s liable? “The correct answer, right now, might be nobody. And that’s something we will probably want to change.”

Generative AI is developing at a stunning speed, creating new and thorny problems in well-established legal areas, disrupting long-standing regimes of civil liability—and outpacing the necessary frameworks, both legal and regulatory, that can ensure the risks are anticipated and accounted for.

To keep up with the flood of new,  large language models like ChatGPT, judges and lawmakers will need to grapple, for the first time, with a host of complex questions. For starters, how should the law govern harmful speech that is not created by human beings with rights under the First Amendment? How must criminal statutes and prosecutions change to address the role of bots in the commission of crimes? As growing numbers of people seek legal advice from chatbots, what does that mean for the regulation of legal services? With large language models capable of authoring novels and AI video generators churning out movies, how can existing copyright law be made current?

Hanging over this urgent list of questions is yet another: Are politicians, administrators, judges, and lawyers ready for the upheaval AI has triggered?

ARTIFICIAL AGENTS, CRIMINAL INTENT

Did ChatGPT defame Professor Lemley?

In 2023, when Lemley asked the chatbot GPT-4 to provide information about himself, it said he had been accused of a crime: namely, the misappropriation of trade secrets. Director of the Stanford Program in Law, Science and Technology , Lemley had done no such thing. His area of research, it seems, had caused the chatbot to hallucinate criminal offenses.

More recently, while researching a paper on AI and liability, Lemley and his team asked Google for information on how to prevent seizures. The search engine responded with a link titled “Had a seizure, now what?” and Lemley clicked. Among the answers: “put something in someone’s mouth” and “hold the person down.” Something was very wrong. Google’s algorithm, it turned out, had sourced content from a webpage explaining precisely what not to do. The error could have caused serious injury. (This advice is no longer included in search results.)

Lemley says it is not clear AI companies will be held liable for errors like these. The law, he says, needs to evolve to plug the gaps. But Lemley is also concerned about an even broader problem: how to deal with AI models that cause harm but that have impenetrable technical details locked inside a black box.

Take defamation. Establishing liability, Lemley explains, requires a plaintiff to prove mens rea: an intent to deceive. When the author of an allegedly defamatory statement is a chatbot, though, the question of intent becomes murky and will likely turn on the model’s technical details: how exactly it was trained and optimized.

To guard against possible exposure, Lemley fears, developers will make their models less transparent. Turning an AI into a black box, after all, makes it harder for plaintiffs to argue that it had the requisite “intent.” At the same time, it makes models more difficult to regulate.

How, then, should we change the law? What’s needed, says Lemley, is a legal framework that incentivizes developers to focus less on avoiding liability and more on encouraging companies to create systems that reflect our preferences. We’d like systems to be open and comprehensible, he says. We’d prefer AIs that do not lie and do not cause harm. But that doesn’t mean they should only say nice things about people simply to avoid liability. We expect them to be genuinely informative.

In light of these competing interests, judges and policymakers should take a fine-grained approach to AI cases, asking what, exactly, we should be seeking to incentivize. As a starting point, suggests Lemley, we should dump the mens rea requirement in AI defamation cases now that we’ve entered an era when dangerous content can so easily be generated by machines that lack intent.

Lemley’s point extends to AI speech that contributes to criminal conduct. Imagine, he says, a chatbot generating a list of instructions for becoming a hit man or making a deadly toxin. There is precedent for finding human beings liable for these things. But when it comes to AI, once again accountability is made difficult by the machine’s lack of intent.

“We want AI to avoid persuading people to hurt themselves, facilitating crimes, and telling falsehoods about people,” Lemley writes in “Where’s the Liability in Harmful AI Speech?” So instead of liability resting on intent, which AIs lack, Lemley suggests an AI company should be held liable for harms in cases where it was designed without taking standard actions to mitigate risk.

“It is deploying AI to help prosecutors make decisions that are not conditioned on race. Because that’s what the law requires.”

Julian Nyarko, associate professor of law, on the algorithm he developed

At the same time, Lemley worries that holding AI companies liable when ordinary humans wouldn’t be, may inappropriately discourage development of the technology. He and his co-authors argue that we need a set of best practices for safe AI. Companies that follow the best practices would be immune from suit for harms that result from their technology while companies that ignore best practices would be held responsible when their AIs are found to have contributed to a resulting harm.

HELPING TO CLOSE THE ACCESS TO JUSTICE GAP 

As AI threatens to disrupt criminal law, lawyers themselves are facing major disruptions. The technology has empowered individuals who cannot find or pay an attorney to turn to AI-powered legal help. In a civil justice system awash in unmet legal need, that could be a game changer.

“It’s hard to believe,” says David Freeman Engstrom , JD ’02, Stanford’s LSVF Professor in Law and co-director of the Deborah L. Rhode Center on the Legal Profession , “but the majority of civil cases in the American legal system—that’s millions of cases each year—are debt collections, evictions, or family law matters.” Most pit a represented institutional plaintiff (a bank, landlord, or government agency) against an unrepresented individual. AI-powered legal help could profoundly shift the legal services marketplace while opening courthouse doors wider for all.

“Up until now,” says Engstrom, “my view was that AI wasn’t powerful enough to move the dial on access to justice.” That view was front and center in a book Engstrom published earlier this year, Legal Tech and the Future of Civil Justice . Then ChatGPT roared onto the scene—a “lightning-bolt moment,” as he puts it. The technology has advanced so fast that Engstrom now sees rich potential for large language models to translate back and forth between plain language and legalese, parsing an individual’s description of a problem and responding with clear legal options and actions.

“We need to make more room for new tools to serve people who currently don’t have lawyers,” says Engstrom, whose Rhode Center has worked with multiple state supreme courts on how to responsibly relax their unauthorized practice of law and related rules. As part of that work, a groundbreaking Rhode Center study offered the first rigorous evidence on legal innovation in Utah and Arizona, the first two states to implement significant reforms.

But there are signs of trouble on the horizon. This summer, a New York judge sanctioned an attorney for filing a motion that cited phantom precedents. The lawyer, it turns out, relied on ChatGPT for legal research, never imagining the chatbot might hallucinate fake law.

How worried should we be about AI-powered legal tech leading lay people—or even attorneys—astray? Margaret Hagan , JD ’13, lecturer in law, is trying to walk a fine line between techno-optimism and pessimism.

“I can see the point of view of both camps,” says Hagan, who is also the executive director of the Legal Design Lab , which is researching how AI can increase access to justice, as well as designing and evaluating new tools. “The lab tries to steer between those two viewpoints and not be guided by either optimistic anecdotes or scary stories.”

To that end, Hagan is studying how individuals are using AI tools to solve legal problems. Beginning in June, she gave volunteers fictional legal scenarios, such as receiving an eviction notice, and watched as they consulted Google Bard. “People were asking, ‘Do I have any rights if my landlord sends me a notice?’ and ‘Can I really be evicted if I pay my rent on time?’” says Hagan.

Bard “provided them with very clear and seemingly authoritative information,” she says, including correct statutes and ordinances. It also offered up imaginary case law and phone numbers of nonexistent legal aid groups.

In her policy lab class, AI for Legal Help , which began last autumn, Hagan’s students are continuing that work by interviewing members of the public about how they might use AI to help them with legal problems. As a future lawyer, Jessica Shin, JD ’25, a participant in Hagan’s class, is concerned about vulnerable people placing too much faith in these tools.

“I’m worried that if a chatbot isn’t dotting the i’s and crossing the t’s, key things can and will be missed—like  statute of limitation deadlines or other procedural steps that will make or break their cases,” she says.

“Government cannot govern AI, if government doesn’t understand AI.”

Daniel Ho, William Benjamin Scott and Luna M. Scott Professor of Law

Given all this promise and peril, courts need guidance, and SLS is providing it. Engstrom was just tapped by the American Law Institute to lead a multiyear project to advise courts on “high-volume” dockets, including debt, eviction, and family cases. Technology will be a pivotal part, as will examining how courts can leverage AI. Two years ago, Engstrom and Hagan teamed up with Mark Chandler, JD ’81, former Cisco chief legal officer now at the Rhode Center, to launch the Filing Fairness Project . They’ve partnered with courts in seven states, from Alaska to Texas, to make it easier for tech providers to serve litigants using AI-based tools. Their latest collaboration will work with the Los Angeles Superior Court, the nation’s largest, to design new digital pathways that better serve court users.

CAN MACHINES PROMOTE COMPLIANCE WITH THE LAW?

The hope that AI can be harnessed to help foster fairness and efficiency extends to the work of government too. Take criminal justice. It’s supposed to be blind, but the system all too often can be discriminatory—especially when it comes to race. When deciding whether to charge or dismiss a case, a prosecutor is prohibited by the Constitution from taking a suspect’s race into account. There is real concern, though, that these decisions might be shaped by racial bias—whether implicit or explicit.

Enter AI. Julian Nyarko , associate professor of law, has developed an algorithm to mask race-related information from felony reports. He then implemented the algorithm in a district attorney’s office, erasing racially identifying details before the reports reached the prosecutor’s desk. Nyarko believes his algorithm will help ensure lawful prosecutorial decisions.

“The work uses AI tools to increase compliance with the law,” he says. “It is deploying AI to help prosecutors make decisions that are not conditioned on race. Because that’s what the law requires.”

GOVERNING AI

While the legal profession evaluates how it might integrate this new technology, the government has been catching up on how to grapple with the AI revolution. According to Daniel Ho , the William Benjamin Scott and Luna M. Scott Professor of Law and a senior fellow at Stanford’s Institute for Human-Centered AI, one of the core challenges for the public sector is a dearth of expertise.

Very few specialists in AI choose to work in the public sector. According to a recent survey, less than 1 percent of recent AI PhD graduates took positions in government—compared with some 60 percent who chose industry jobs. A lack of the right people, and an ailing government digital infrastructure, means the public sector is missing the expertise to craft law and policy and effectively use these tools to improve governance. “Government cannot govern AI,” says Ho, “if government doesn’t understand AI.”

Ho, who also advises the White House as an appointed member of the National AI Advisory Committee (NAIAC), is concerned policymakers and administrators lack sufficient knowledge to separate speculative from concrete risks posed by the technology.

Evelyn Douek , a Stanford Law assistant professor, agrees. There is a lack of available information about how commonly used AI tools work—information the government could use to guide its regulatory approach, she says. The outcome? An epidemic of what Douek calls “magical thinking” on the part of the public sector about what is possible.

The information gap between the public and private sectors motivated a large research team from Stanford Law School’s Regulation, Evaluation, and Governance Lab (RegLab) to assess the feasibility of recent proposals for AI regulation. The team, which included Tino Cuéllar (MA ’96, PhD ’00), former SLS professor and president of the Carnegie Endowment for International Peace; Colleen Honigsberg , professor of law; and Ho, concluded that one important step is for the government to collect and investigate events in which AI systems seriously malfunction or cause harm, such as with bioweapons risk.

“If you look at other complex products, like cars and pharmaceuticals, the government has a database of information that details the factors that led to accidents and harms,” says Neel Guha, JD/PhD ’24 (BA ’18), a PhD student in computer science and co-author of a forthcoming paper that explores this topic. The NAIAC formally adopted this recommendation for such a reporting system in November.

“Our full understanding of how these systems are being used and where they might fail is still in flux,” says Guha. “An adverse-event-reporting system is a necessary prerequisite for more effective governance.”

MODERNIZING GOVERNMENT

While the latest AI models demand new regulatory tools and frameworks, they also require that we rethink existing ones—a challenge when the various stakeholders often operate in separate silos.

“Policymakers might propose something that is technically impossible. Engineers might propose a technical solution that is flatly illegal.” Ho says. “What you need are people with an understanding of both dimensions.”

Last year, Ho, Christie Lawrence, JD ’24, and Isaac Cui, JD ’25, documented extensive challenges the federal government faced in implementing AI legal requirements in an article. This led Ho to testify before the U.S. Senate on a range of reforms. And this work is driving change. The landmark White House executive order on AI adopted these recommendations, and the proposed AI Leadership to Enable Accountable Deployment (AI LEAD) Act would further codify recommendations, such as the creation of a chief AI officer, agency AI governance boards, and agency strategic planning. These requirements would help ensure the government is able to properly use and govern the technology.

“If generative AI technologies continue on their present trajectory, it seems likely that they will upend many of our assumptions about a copyright system.”

Paul Goldstein, Stella W. and Ira S. Lillick Professor of Law

Ho, as faculty director of RegLab, is also building bridges with local and federal agencies to develop high-impact demonstration projects of machine learning and data science in the public sector.

The RegLab is working with the Internal Revenue Service to modernize the tax-collection system with AI. It is collaborating with the Environmental Protection Agency to develop machine-learning technology to improve environmental compliance. And during the pandemic, it partnered with Santa Clara County to improve the public health department’s wide range of pandemic response programs.

“AI has real potential to transform parts of the public sector,” says Ho. “Our demonstration projects with government agencies help to envision an affirmative view of responsible technology to serve Americans.”

In a sign of an encouraging shift, Ho has observed an increasing number of computer scientists gravitating toward public policy, eager to participate in shaping laws and policy to respond to rapidly advancing AI, as well as law students with deep interests in technology. Alumni of the RegLab have been snapped up to serve in the IRS and the U.S. Digital Service, the technical arm of the executive branch. Ho himself serves as senior advisor on responsible AI to the U.S. Department of Labor. And the law school and the RegLab are front and center in training a new generation of lawyers and technologists to shape this future.

AI GOES TO HOLLYWOOD 

Swaths of books and movies have been made about humans threatened by artificial intelligence, but what happens when the technology becomes a menace to the entertainment industry itself? It’s still early days for generative AI-created novels, films, and other content, but it’s beginning to look like Hollywood has been cast in its own science fiction tale—and the law has a role to play.

“If generative AI technologies continue on their present trajectory,” says the Stella W. and Ira S. Lillick Professor of Law Paul Goldstein , “it seems likely that they will upend many of our assumptions about a copyright system.”

There are two main assumptions behind intellectual property law that AI is on track to disrupt. From feature films and video games with multimillion-dollar budgets to a book whose author took five years to complete, the presumption has been that copyright law is necessary to incentivize costly investments. Now AI has upended that logic.

“When a video game that today requires a $100 million investment can be produced by generative AI at a cost that is one or two orders of magnitude lower,” says Goldstein, “the argument for copyright as an incentive to investment will weaken significantly across popular culture.”

The second assumption, resting on the consumer side of the equation, is no more stable. Copyright, a system designed in part to protect the creators of original works, has also long been justified as maximizing consumer choice. However, in an era of AI-powered recommendation engines, individual choice becomes less and less important, and the argument will only weaken as streaming services “get a lot better at figuring out what suits your tastes and making decisions for you,” says Goldstein.

If these bedrock assumptions behind copyright are both going to be rendered “increasingly irrelevant” by AI, what then is the necessary response? Goldstein says we need to find legal frameworks that will better safeguard human authors.

“I believe that authorship and autonomy are independent values that deserve to be protected,” he says. Goldstein foresees a framework in which AI-produced works are clearly labeled as such to guarantee consumers have accurate information.

The labeling approach may have the advantage of simplicity, but on its own it is not enough. At a moment of unprecedented disruption, Goldstein argues, lawmakers should be looking for additional ways to support human creators who will find themselves competing with AIs that can generate works faster and for a fraction of the cost. The solution, he suggests, might involve looking to practices in countries that have traditionally given greater thought to supporting artists, such as those in Europe.

“There will always be an appetite for authenticity, a taste for the real thing,” Goldstein says. “How else do you explain why someone will pay $2,000 to watch Taylor Swift from a distant balcony, when they could stream the same songs in their living room for pennies?” In the case of intellectual property law, catching up with the technology may mean heeding our human impulse—and taking the necessary steps to facilitate the deeply rooted urge to make and share authentic works of art.  SL

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Have you thought about trying to publish in a law review or journal?  This guide contains a variety of resources to help you in that process.  

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Comparing Law Journal Impact Factor/Prestige

Over the years, many ranking systems for law journals have evolved, incorporating a variety of methodologies and factors, including frequency of citation, prominence of author, etc..  Although such rankings can be useful for getting an idea of the prestige or "impact factor" of a journal, they should be taken with a grain of salt and in consideration of other factors that might be important to you.  Ranking of journals is frequently a subject of articles and blog postings.  Play close attention to how the data was compiled---e.g. through database searches, opinions of experts in the field, etc..

Law Journal Submissions and Ranking The Washington & Lee Law School Library produces this site that lists law journals by subject, country and other factors, and allows users to rank journals by impact factor or immediacy index. (Both are based on citation counts more or less, see ranking methodology ). Provides contact and submission information.

Allen Rostron & Nancy Levit,   I nformation for Submitting Articles to Law Reviews & Journals .

Bridget J. Crawford,  Information for Submitting to Online Law Review Companions .

Michael Goodyear,  Information for Submitting Articles to Specialty & Non-Flagship Law Journals .

Nancy Levit et al,  Submission of Law Student Articles for Publication .

Clarivate Journal Citation Reports (Harvard ID and PIN required) Ranks journals in a wide range of disciplines including about 100 law journals. Rankings are based on citation counts in thousands of journals in the sciences and social sciences. From the home page, click Categories , then click  Social Sciences, General.  From the expanded menu, click  Law.

Most Cited Journals on HeinOnline This top 100 list is based on HeinOnline's citator feature called ScholarCheck. You can also use ScholarCheck to create your own metric. They also have a collection of most-cited law journals .

Eigenfactor This system ranks journals as Google ranks websites (mapping relationship structures). The coverage of law is not comprehensive, but it is useful for looking at journals in the context of the social sciences generally.

Google Scholar Metrics Google Scholar provides five-year h-index and h-median numbers for ranking purposes.

Bryce Clayton Newell, Law Journal Meta-Ranking 2023 Edition

Measuring Quality - Writing for and Publishing in Law Reviews (Choosing Where to Submit and Publish)   A great guide compiled by the Gallagher Library at the University of Washington Law School, explaining the most common ranking factors, including important an extensive selection of articles and surveys.

Brian T. Detweiler, May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals

Accessibility of the Content

Is the journal available in places where scholars will find, and hopefully cite to, its contents? Some considerations include:

Is it open access or freely available? Do you encounter a paywall when trying to read an article's full-text? Check the journal's website for contents and the journal's policy. You can also check the  Directory of Open Access Journals , but the coverage for law is not extensive. 

Is it in Westlaw, Lexis, and other subscription databases? 

Is it indexed by Legaltrac (a.k.a Legal Resource Index)? See title list  (downloads as an Excel file).

Is it indexed by Index to Legal Periodicals and Books? See title list .

Is it included in Tables of Contents Services, such as Current Index to Legal Periodicals? See title list  on HeinOnline (Harvard Key required).

Selected Directories of Law Journals

In addition to Washington and Lee's Law Review Submissions and Ranking website , there are several directories that can be used to find out more information about law journals that are currently being published.

• Ulrich's Periodicals Not specific to law, Ulrich's describes periodicals in all disciplines, worldwide. Most comprehensive source for finding law-related serial publications. Includes newspapers, bar journals, and trades. Usually provides a description, contact information, circulation figures, abstracting and indexing services, and links to publishers' sites. Use Advanced Search to find appropriate journals. At minimum, you may want to limit Country of Publication to United States, Subject to law, Status to Active, and Serial Type to Academic/Scholarly.
• Directory for Successful Publishing in Legal Periodicals Call Number: Reference K 36.J69 1997x A bit out of date but still useful. Covers about 500 major law journals. Describes the journal's particular focus, preferred manuscript style; acceptance rates, details about the review process, and occasionally explains factors in manuscript rejections.

Short-Form Publishing

Many law reviews now have blogs and websites that accept shorter submissions. See Information for Submitting to Online Law Review Companions by Bridget J. Crawford . Washington & Lee also lists selected ones on its   Law Journals: Submissions and Ranking website .

Scholastica

Hls student scholastica funding.

The Harvard Law School subsidizes Scholastica journal submissions for current students with publishable academic work. 

Eligibility

To access this support, you must receive sign-off from your faculty supervisor that your work is ready for submission to law reviews and journals.

Before we activate your account, we ask you to complete a tutorial and quiz about submission strategy. You may also want to set up an appointment with a librarian to discuss strategy and how to select journals for submission. We encourage you to review the  Law Library’s Guide to Publishing in Law Reviews and Journals.

How to Participate

Send a request using your Harvard email to [email protected] . Include or separately forward the approval from your faculty supervisor. Your name must be in the body of the email from your faculty supervisor. 

How it Works

When you contact us, we will send you a link to an online tutorial and quiz. Once you have completed the quiz, and we receive your request and faculty approval,  Library staff will add you to our Scholastica account. Once you acknowledge our invitation, you will be free to begin your submissions. Your account will remain active until you reach your maximum number of submissions or expiration after 10 months past your graduation date, whichever comes first.

Submission Levels

• SJD– up to 50 submissions per academic year during your time at HLS. Unused submissions will roll over to the next year. 
• LLMs – up to 50 submissions  total during your year at HLS.
• JDs – up to 50 submissions total during your three years at HLS.
• Submissions may be used up to 10 months after graduation.

Note:  Please keep track of your journal submissions and notify us when you reach 50, as Scholastica does not limit them automatically. 

JOURNAL POLICIES FOR SUBMISSION

Sherpa Services  is a searchable database of publisher's general policies regarding copyright and the self-archiving of journal articles on the web and in Open Access repositories.  Each entry provides a summary of the publisher's policy, including what version of an article can be deposited, where it can be deposited, and any conditions that are attached to that deposit. 

How You Can Submit an Article

Journals have different policies for receiving submissions.  Your best starting place is to check the journal's website, which usually provides details about its policy.  We have collected on this page some potential resources that you can use for submitting an article.

Learn about Author Rights

If you do get an acceptance for publication, you might be asked to sign an author agreement/contract with the publisher.  Some standard agreements require things such as transferring copyright or prohibiting what you can do with your own work.  See Benjamin J. Keele,  Advising Faculty on Law Journal Publication Agreements  for a brief basic review of terms to consider.

SPARC Author Rights

• Author Rights and the SPARC Author Addendum

Scholar's Copyright Addendum Engine

Hosted by Science Commons, you can enter the article information and choose the rights you want to retain and generate a standard addendum on pdf  to provide for the publisher's consideration.  http://scholars.sciencecommons.org/  

Keep Your Copyrights

Developed by the Kernochan Center for Law, Media, and the Arts and the Program on Law & Technology at Columbia Law School, this website provides a good introduction to author rights and sample publication agreements categorized by level of creator-friendliness.

• https://kernochan.law.columbia.edu/content/keep-your-copyrights

Creative Commons Licenses

Creative Commons (CC)  provides creators with standardized licenses that describe, in plain language, what actions are and are not allowed with their content.

• Read more about the various licenses on the CC website .
• The CC License Chooser tool can help you pick a license that's right for you and your work.

Resources to Learn about Journal Copyright and Self-Archiving Policies

Journal publication agreements vary widely, but there are some resources that help authors get an idea of what a journal's standard policy has typically been.  While the journal publication agreement itself must always be reviewed, looking at these resources at the time of submission can be helpful, particularly if it is important for you to retain certain rights in your work.  Regardless of what a publisher's standard agreement states, you can always try to negotiate different terms. If the publisher is unwilling to budge from its position, you then need to decide how important it is to you to publish in that particular journal.

• Sherpa Services This website lists contains summaries of permissions that are normally given as part of each publisher's agreement.
• Benjamin Keele, Copyright Provisions in Law Journal Publication Agreements
• Dan Hunter, Walled Gardens
• Brian Frye, Christopher Ryan, Franklin Runge, An Empirical Study of Law Journal Copyright Practices

Working papers and self-archiving

Regardless of your plans for formal publication of your work, you are encouraged to deposit your student papers with the university's open access repository, DASH . Doing so will enable you to share your work with other members of the Harvard community, as well as the world at large.  If you are concerned about making your content available open on the Internet, you also have the option of submitting only the metadata (e.g. title, your name). See HLS Student Papers Series in DASH for details.

You might also want to deposit your paper (or its metadata) in SSRN or another working paper repository to associate yourself with the work and make it available for feedback from others in the field.  Scholars frequently make their "working papers" or drafts available for early feedback and reaction from colleagues.

The SSRN Legal Scholarship Network hosts research paper series for academic and other research organizations such as the  Harvard Law School, Public Law & Legal Theory Research Paper Series .  Scholars can publish their work in a large number of law-related e-journals within SSRN's Legal Scholarship Network's four areas including Law  & Economics, Public Law & Legal Theory, Legal Studies and Law Research Center Papers. 

Author Identification

Giving the proper author credit for research is the goal of Open Researcher and Contributor ID ( ORCID ) iDs. ORCID is a non-profit, community-driven, Open Access effort to create a registry of unique researcher identifiers.

“ORCID provides a persistent digital identifier that distinguishes you from every other researcher and, through integration in key research workflows such as manuscript and grant submission, supports automated linkages between you and your professional activities ensuring that your work is recognized.”

You can create a new ORCID or link your existing ORCID using Harvard ORCID Connect , HarvardKey required.

Research Profile Services

• Scholars@Harvard
• Google Scholar Citations
• Academia.edu

Conference Alerts

• Conference Alerts This resource tracks academic conferences worldwide, including ones concerning law. E-mail alerts are available.
• All Conference Alert Lists conferences for a variety of disciplines, including law. Can filter conference list by location and month.

Selected books

Other Guides

• Writing for and Publishing in Law Reviews (Gallagher Law Library, University of Washington School of Law) This very extensive guide covers various aspects of publishing.
• Brian D. Galle, The Law Review Submission Process: A Guide for (and by) the Perplexed
• Scholastica Resources Run by the submission service Scholastica, there are various resources/tips (written from the perspective of a service provider) including their blogs .

Blogs/Current Awareness

• Brian Leiter Law School Reports
• PrawfsBlawg
• Faculty Lounge

HLS also offers many prizes for its students papers generally. See Harvard Law School Writing Prizes for more information.

The American Bar Association (ABA) offers a number of writing competitions for young lawyers and law students, view the full list on their website . 

See also the American University Pence Law Library guide to writing competitions for further resources. 

• Tutorial and quiz to obtain Scholastica account (HarvardKey required)

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• Last Updated: Jul 19, 2024 4:36 PM
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Generative AI Has an Intellectual Property Problem

• Juliana Neelbauer,
• David A. Schweidel

Strategies to help companies mitigate the legal risk and ensure they’re in compliance with the law.

Generative AI, which uses data lakes and question snippets to recover patterns and relationships, is becoming more prevalent in creative industries. However, the legal implications of using generative AI are still unclear, particularly in relation to copyright infringement, ownership of AI-generated works, and unlicensed content in training data. Courts are currently trying to establish how intellectual property laws should be applied to generative AI, and several cases have already been filed. To protect themselves from these risks, companies that use generative AI need to ensure that they are in compliance with the law and take steps to mitigate potential risks, such as ensuring they use training data free from unlicensed content and developing ways to show provenance of generated content.

Generative AI can seem like magic. Image generators such as Stable Diffusion, Midjourney, or DALL·E 2 can produce remarkable visuals in styles from aged photographs and water colors to pencil drawings and Pointillism. The resulting products can be fascinating — both quality and speed of creation are elevated compared to average human performance. The Museum of Modern Art in New York hosted an AI-generated installation generated from the museum’s own collection, and the Mauritshuis in The Hague hung an AI variant of Vermeer’s Girl with a Pearl Earring while the original was away on loan.

• GA Gil Appel is an Assistant Professor of Marketing at the GW School of Business.  His research uncovers insights driven by consumer interactions with digital technologies, such as big data, social media, NFTs, and AI.
• JN Juliana Neelbauer is a partner at Fox Rothschild LLP in the corporate, intellectual property, emerging markets, and entertainment and sports law groups. She is a lecturer at the University of Maryland and Georgetown University regarding securities law, negotiations, digital assets, and business law.
• DS David A. Schweidel is Rebecca Cheney McGreevy Endowed Chair and Professor of Marketing at Emory University’s Goizueta Business School. His research focuses on consumer interactions with technology, and how this shapes marketing practice.

Partner Center

Read Full Article (PDF)

Legal academia’s system of utilizing student-run journals for publication has its downsides. Professors and students both have shared frustrations in the editing process. While editorial processes differ by journal, often there are issues with lack of mutual understanding in the scope of what should be edited, the role of the student in the editing process, and what level of deference should be provided to author discretion. 

To remedy these downsides, this article proposes a framework which is borrowed from the world of appellate procedure, based on the proposition that the relationship between trial judges and appellate judges resembles the relationship between authors and student editors. Specifically, this article suggests that student editors should use standards of review, similar to those used by appellate judges when reviewing trial judges’ decisions, to guide their editorial decisions. Implementing additional tools—specifically, burdens of proof and reasoned explanations—could further improve the editorial process by guiding student editors to fewer but more helpful edits.

Dora W. Klein *

* Professor of Law, St. Mary’s University School of Law.

Professor Mark Kubisch's Article, "ESG, Public Pensions, and Compelled Speech," Cited in Committee on Capital Markets Regulation Report

Professor Mark Kubisch 's law review article, "ESG, Public Pensions, and Compelled Speech," ( SSRN ) 11 Tex. A&M L. Rev. 71 (2023) , is cited in a report released by the Committee on Capital Markets Regulation.  The committee provides U.S. and global policymakers with intellectual leadership on the most critical financial regulatory policy issues.  The committee’s membership includes thirty seven leaders drawn from across the financial sector, including banks, broker-dealers, asset managers, private funds and insurance, as well as academics.  The committee co-chairs are R. Glenn Hubbard, dean emeritus of Columbia Business School, and John L. Thornton, former chairman of the Brookings Institution. The committee’s president is Hal S. Scott, emeritus Nomura Professor of International Financial Systems at Harvard Law School and president of the Program on International Financial Systems. 

Founded in 2006, the committee undertook its first major report on the U.S. capital markets at the request of U.S. Secretary of the Treasury, Henry M. Paulson. Over fifteen years later, the committee continues to develop and promote policy reforms that would enhance opportunities for U.S. investors and promote economic growth.

Professor Kubisch's article is cited repeatedly in the committee's October 2024 report, titled "An Analysis of the Constitutionality of State ESG Laws."

The report may be found at Committee on Capital Markets Regulation

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Medical marijuana: Medical necessity versus political agenda

Peter a clark, kevin capuzzi, cameron fick.

• Author information
• Article notes
• Copyright and License information

Peter A. Clark, Jesuit Community, St. Joseph’s University, 5600 City Avenue, Philadelphia, Pennsylvania 19131, U.S.A., e-mail [email protected]

Received 2011 Nov 26; Accepted 2011 Nov 26; Collection date 2011.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

Marijuana is classified by the Drug Enforcement Agency (DEA) as an illegal Schedule I drug which has no accepted medical use. However, recent studies have shown that medical marijuana is effective in controlling chronic non-cancer pain, alleviating nausea and vomiting associated with chemotherapy, treating wasting syndrome associated with AIDS, and controlling muscle spasms due to multiple sclerosis. These studies state that the alleviating benefits of marijuana outweigh the negative effects of the drug, and recommend that marijuana be administered to patients who have failed to respond to other therapies. Despite supporting evidence, the DEA refuses to reclassify marijuana as a Schedule II drug, which would allow physicians to prescribe marijuana to suffering patients. The use of medical marijuana has continued to gain support among states, and is currently legal in 16 states and the District of Columbia. This is in stark contrast to the federal government’s stance of zero-tolerance, which has led to a heated legal debate in the United States. After reviewing relevant scientific data and grounding the issue in ethical principles like beneficence and nonmaleficence, there is a strong argument for allowing physicians to prescribe marijuana. Patients have a right to all beneficial treatments and to deny them this right violates their basic human rights.

Keywords: marijuana, medical, cancer, human rights, ethics, legal

Debate about medical marijuana is challenging the basic foundations of the accepted practice in the medical, legal and ethical communities. A major criticism of alternative therapies like medical marijuana is they have not been scientifically tested, leading many to question their safety and efficacy [ 1 ]. However, proponents in the medical community argue for medical marijuana use based on its effectiveness in managing debilitating pain, nausea and vomiting associated with chemotherapy, as well as its efficacy in treating severe weight loss commonly experienced by AIDS sufferers. Medical marijuana can be used as a stand-alone treatment for these conditions or as a complement to conventional ones in order to help patients better withstand the conventional treatments’ effects and thereby obtain the full benefit, whether a cure or improvement of their condition [ 2 ]. In recognition and acceptance of the effectiveness of medical marijuana, sixteen states have approved initiatives to make marijuana legal for medicinal purposes [ 3 ], including Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia. However, the leading opponent to legalization is the federal government, which has continued to trump state law rights by threatening patients and physicians with criminal prosecution and closing or obstructing dispensaries in states with medical marijuana legislation in place.

The history of marijuana use for medicinal purposes extends back through millennia. The medical use of marijuana can be traced back to 2737 B.C., when Emperor Shen Neng was prescribing marijuana tea to treat gout, rheumatism, malaria, and even poor memory [ 4 ]. The drug’s popularity spread throughout Asia to the Middle East and into Africa, and many ancient physicians prescribed marijuana for numerous ailments, from pain relief to childbirth [ 5 ]. In Western medicine, between 1840 and 1900, more than 100 articles citing marijuana’s therapeutic qualities were published in American and European medical journals. These early American medical journals were recommending hemp seeds and roots for conditions including inflamed skin, incontinence and venereal disease, and in 1851, the United States Pharmacopoeia included hemp in its catalog of medicines. Marijuana was routinely prescribed by American physicians and enjoyed legal status in the United States until 1937 when U.S. legislature passed the first federal law against marijuana – the Marihuana Tax Act. This Act imposed a $1 per ounce tax on marijuana purchased for medical intention [ 6 ]. Later, in the 1950s, Congress passed the Boggs Act and the Narcotics Control Act, which outlined mandatory sentences for drug offenders, including marijuana possessors and distributors [ 4 ]. Eventually, the 1970 Uniform Controlled Substance Act classified marijuana as a Schedule I drug, thus making possession of a Schedule I drug like marijuana, heroin, ecstasy, LSD, GHB and peyote illegal [ 6 ]. Under this Act, there are five schedules of drugs – Schedule I, II, III, IV, and V. A Schedule I drug has a high potential for abuse, and has no accepted medical use in treatment due to a lack of accepted safety for use of the drug. A Schedule II drug has a high potential for abuse like a Schedule I drug, but it has an accepted medical use for treatment. Schedule III, IV, and V drugs have a low potential for abuse and are accepted for medical treatment. The federal government’s basis for threatening prosecution is due to the 1970 classification of marijuana as a Schedule I drug [ 7 ].

While the subject of medical marijuana is becoming an increasingly heated medical issue, it also continues to stir the embers of legal arguments. Advocates on both sides continue to battle at federal and state government levels. One such state where legal battles have raged is Montana. Montana’s state legislature legalized the medical use of marijuana in 2004 [ 8 ], but in the past year, Montana residents have seen increased legal opposition to this ruling. The issue of medical marijuana is now firmly encased in the halls of the judicial system in states like Montana and California. In California, there are now certain cities like Anaheim that have taken their case to ban marijuana dispensaries to the local courts. In August 2011, an Orange County Superior Court Judge ruled that the restriction of distribution of medical-marijuana in Anaheim was not a contradiction to state law. The judge supported his ruling by saying that state legislature allows local laws to “fill in the gaps that exist in state medical-marijuana law” [ 9 ].

As certain states seem to be backtracking, other states like Delaware, Pennsylvania, and nine others (Alabama, Connecticut, Idaho, Illinois, Massachusetts, New Hampshire, New York, North Carolina, Ohio) [ 10 ] are striving to create a future environment where medical marijuana is legal. Delaware, the most recent state to legalize medical marijuana, signed a bill into law on May 13, 2011 [ 11 ]. Pennsylvania has not yet voted on the issue, but in 2009, it proposed a bill for medical marijuana legalization [ 12 ].

The ethical dilemma at the core of this debate is whether the federal ban on the use of medical marijuana violates the physician-patient relationship. The argument can be framed by the ethical principles of autonomy and beneficence. Patients have the right to expect full disclosure and discussion of all available treatment options from their physicians. Denying a patient knowledge of and access to a therapy that relieves pain and suffering, especially when the patient has a terminal disease, violates the basic duty of a physician. As a result, physicians find themselves at the center of this controversy, searching for a compromise between medical necessity and government restrictions.

The main objection to the medical use of marijuana by the federal government is largely attributable today to a national policy of zero-tolerance toward illicit drugs. This objection is extended to include a prohibition on legalizing marijuana for medical purposes as well, and is underscored by three suppositions initially outlined during the Clinton Administration. First, marijuana is an illegal drug that remains unproven in terms of safety or efficacy. Second, it is argued that marijuana is a “gateway drug” that leads to more serious drug use. Third, any legalization of marijuana for medical purposes will send the wrong message to the public, and in particular to our children, namely that marijuana is acceptable for recreational use and even beneficial [ 13 ].

With regard to documenting the effectiveness of medical marijuana, the most comprehensive analysis to date in medical literature was issued on March 17, 1999, by a White House-commissioned committee of 11 independent scientists appointed by the Institute of Medicine. The researchers concluded that, “the benefits of smoking marijuana were limited by the toxic effects of the smoke, but nonetheless recommended that the drug be given under close supervision to patients who do not respond to other therapies” [ 14 ]. The report continues that, “there was no evidence that giving the drug to sick people would increase illicit drug use in the general population. Nor is marijuana a ‘gateway drug’ that prompts patients to use harder drugs like cocaine and heroin” [ 15 ]. This government-sponsored study presented solid scientific data that indicates the potential therapeutic value of marijuana in controlling some forms of pain, alleviating nausea and vomiting, treating wasting due to AIDS, and combating muscle spasms associated with multiple sclerosis (MS). Neither does it increase drug usage or lead to harder drugs [ 16 ]. Despite their own findings, the federal government continues to prohibit this effective drug from being prescribed by physicians for patients suffering from specific treatment side-effects, which have lead to strong objections to the government’s stance by medical researchers, physicians, legal experts, and ethicists, not to mention the patients that rely on marijuana to improve their medical condition.

Attempts to reassign marijuana to a Schedule II drug classification have been rejected by the Drug Enforcement Administration (DEA). The basis for rejection is the assertion that, “there was no scientific evidence showing that marijuana was better than other approved drugs for any specific medical condition” [ 17 ]. The federal government’s argument is further asserted to have logical grounding, to wit: marijuana is an illegal drug; no one should ever use illegal drugs; therefore, no one should ever use marijuana for any reason [ 13 ]. Other opponents of the legalization of medical marijuana, such as certain members of the medical community and anti-marijuana organizations, assert that marijuana is too dangerous for medical use, it lacks FDA approval, and that several legal drugs make marijuana use unnecessary [ 18 ]. Today, the DEA maintains this position outlined under the Clinton Administration and, in July 2011, ruled that marijuana has “no accepted medical use” and should therefore remain illegal under federal law, in spite of differing state legislation allowing medical marijuana [ 19 ]. However, with scientific evidence pointing to the contrary, some perceive the government’s treatment of this issue as more of a political matter than a medical issue.

The purpose of this article, therefore, is fourfold: first, to explore the medical aspect of marijuana by examining pertinent scientific research; second, to study the legal issues related to medical marijuana legalization; third, to provide an ethical analysis of the arguments for and against medical marijuana legalization; and fourth, to conclude with specific recommendations.

Medical Perspective

Marijuana is taken from the leaves and flowering tops of the hemp plant, Cannabis sativa , which grows in most regions of the world. C. sativa contains over 460 known compounds, of which 60 are cannabinoids, or compounds unique to cannabis. The main psychoactive compound of marijuana is delta-9-tetrahydrocannabinol (THC) [ 20 ].

The harmful effects of marijuana include rapid heartbeat, some loss of coordination, and impaired immediate memory. In addition, the drug can adversely affect one’s critical skills, including those skills necessary to operate vehicles safely, such as judgment of distance and reaction time [ 21 ]. As reported by a 2010 Harvard Medical Study, marijuana seems to induce psychotic symptoms and worsen conditions in patients already diagnosed with schizophrenia or other psychotic disorders. One such study of more than 50,000 young Swedish soldiers found that those who had smoked marijuana at least once were more than twice as likely to develop schizophrenia as those nonsmokers. For those who said they had used marijuana more than 50 times, research showed that they were six times more likely to develop schizophrenia as the nonsmokers. More evidence is being gathered demonstrating early or heavy marijuana use might not only trigger psychosis in people who are already susceptible, but might also cause psychosis in some people who might not otherwise have developed it; however, direct cause and effect cannot be asserted with absolute certainty from that individual study [ 22 ].

Further risks associated with marijuana found in the 2010 study include addiction, anxiety and mood disorders. Observational studies suggest that every one out of nine people who regularly smoke marijuana become dependent on it, especially when smoked for an extended amount of time. One such contributing factor may be the THC concentration in the herbal form of marijuana. In the United States, as well as Europe, THC concentration in marijuana sold used to range from 1% to 4%, but it appears that this number has risen to 7%. Even though many marijuana users state that marijuana calms them down, for others, this is not the case. The most commonly reported side effects of smoking marijuana are intense anxiety and panic attacks. Studies show that 20% to 30% of marijuana users experience said side effects, and that a higher dose of THC has also proven to increase anxiety episodes. Marijuana may also induce manic episodes and increase rapid cycling between manic and depressive moods in patients with bipolar disorder, but it is not fully understood if marijuana users are at an increased risk of developing bipolar disorder. Several observational studies have also revealed that, for some users, marijuana may increase symptoms of depression and increase the risk of developing depression. Also, the government’s assertion that marijuana is a gateway drug that may lead to harder drugs has not been proven and is less conclusive than any of the above mentioned medical risks [ 22 ].

There are also a number of other medical risks associated with marijuana. First, it is difficult to determine the effective dosage of smoked marijuana, since the concentration of the active ingredient, THC, varies according to the particular plant and how it is grown. Second, nonconclusive studies have shown that THC both suppresses macrophages and human T-lymphocytes and enhances macrophage secretion of interleukin-I [ 23 ]. These are critical components of the immune system and could seriously jeopardize AIDS patients who use marijuana. Other studies emphasize the potential for toxic compounds in marijuana smoke, which include harmful cannabinoids, gases, and other particulates. Studies have shown that marijuana tar contains 50% more phenols than tobacco tar [ 24 ]. Finally, marijuana can also be contaminated by microorganisms and fungi, which can cause possible infections by pathogenic organisms. There have been reported cases of marijuana smokers contracting pulmonary fungal infections. In addition, adulterants such as pesticides and fertilizers can compromise the purity of the marijuana [ 25 ]. To combat these risks, various methods, such as filtering marijuana in water pipes and vaporizing the marijuana, have been shown to remove certain toxins and to deliver a higher cannabinoid-to-tar ratio than do cigarettes or pipes. Also, sterilizing the marijuana by dry heat (300°F) kills spores and fungi [ 26 ]. These risks can be minimized further if the supply of marijuana is grown under government-regulated conditions rather than illicit sources.

Although there are some medical concerns, from a clinical standpoint, in controlled situations such as ones being recommended by proponents of medical use, the positive effects would seem to greatly outweigh the negative ones. Several clinical findings have documented marijuana’s efficacy in treating pain, neurological and movement disorders, nausea of patients undergoing chemotherapy for cancer, loss of appetite and weight (cachexia) related to AIDS, and glaucoma [ 27 ]. Despite clinical findings in support of medical marijuana, the DEA has classified marijuana as an illegal Schedule I drug which has “no accepted medical use.” The DEA will not reschedule marijuana without an official determination of the safety and efficacy from the Food and Drug Administration (FDA).

In order to reschedule marijuana, the FDA requires controlled, double-blind clinical trials. However, there is a major obstacle preventing these trials. Like all other herbal medicines, marijuana faces a major roadblock that inhibits conducting sophisticated clinical trials: a lack of patentable product [ 28 ]. Without the financial incentive of being able to patent the substance as a commercial product, few have pursued the path of carrying out research using the sophisticated, difficult, and expensive procedures proscribed by best practice.

Another federal restriction is the requirement that clinical studies be funded from scarce grant money controlled by the National Institutes of Health (NIH) [ 28 ]. These restrictions have discouraged researchers from studying the medical benefits of marijuana. For example, the 2012 estimate for clinical research on cancer accounts for approximately six billion dollars of the NIH budget, which totals 31.2 billion dollars [ 29 ]. The 2011 NIH budget allocated the following funds available for marijuana research for qualified organizations: $2 million in 4–5 awards. According to NIH Grant guidelines on marijuana, applicants may request budgets with direct costs up to $500,000 per year for a maximum period of 5 years. Therefore, the total budget would be $10 million over the 5 year period [ 30 ]. Of the yearly NIH budget of approximately $31.2 billion, the $2 million going toward marijuana research can be calculated as comprising 0.006% of the yearly budget, thus illustrating how marijuana research is vastly underfunded.

Controlled clinical studies would need to manage medical testing of marijuana and its various forms. Today, smoked marijuana is not the only form in circulation. There are a number of forms of marijuana that are used for medical purposes, including a synthetic form, Marinol (dronabinol), which is taken orally [ 31 ]. Marinol, manufactured by Unimed Pharmaceuticals, Inc., is a Schedule III prescription drug [ 19 ], approved by the FDA in 1985 for treatment of nausea and vomiting of cancer chemotherapy patients who have not responded to the conventional antiemetic therapy. In 1992, the FDA also approved it for use in loss of appetite and weight loss related to AIDS. However, there are three major concerns associated with Marinol [ 32 ]. First, some patients complained that the effects of the pill were too strong at first, and then wore off quickly [ 33 ]. Second, it is very expensive, costing patients anywhere from $200–$800 monthly [ 34 ]. Third, Marinol can be difficult for nauseous patients to consume; some patients fail to keep the pill down long enough for it to be effective [ 35 ].

Another synthetic marijuana-based drug is Nabilone, a Schedule II drug, similar to Marinol, used to treat nausea and vomiting. Nabilone uses a moderately different preparation of synthetic THC, which makes it more completely absorbed into the bloodstream as compared to Marinol [ 22 ]. Nabilone is now a controlled drug; however, Nabilone is perceived to produce more undesirable side effects, have a longer onset of action and to be more expensive than smoked cannabis [ 36 ]. The cost associated with Nabilone is $20 for a 1-mg capsule, and the estimated cost per year is $4000 [ 37 ].

Another form used in Canada is a spray alternative called Sativex [ 38 ]. In 2006, the Food and Drug Administration (FDA) issued an investigational new drug (IND) application for Sativex. The IND allows a drug to be studied with the goal of approving it for marketing if it is deemed safe and effective [ 19 ]. More recently, in 2010, the efficacy of Sativex for bladder dysfunction as a symptom of multiple sclerosis (MS) was tested. It was a 10 week, double-blind, randomized, placebo-controlled, parallel-group trial in 135 subjects with MS and overactive bladder. Researchers concluded that Sativex did have an impact on MS patients with overactive bladder, citing some improvement in symptoms associated with the patients’ bladder dysfunction [ 39 ]. Sativex is now a controlled drug, and has recently been licensed for managing MS [ 40 ]. One of the biggest problems with Sativex is the cost. A vial of Sativex that lasts 10 days costs $124.95 in Canada, which amounts to about $375 monthly [ 38 ]. More recently legalized in Britain, a 10 milliliter vial (enough for 11 days) costs £125 [ 41 ], or approximately 205 U.S. dollars.

In relation to smoked marijuana, all of these alternatives are just that – alternatives, and are not necessarily as effective. It has been argued that smoked marijuana is substantially more effective than these alternatives. The THC in the inhaled smoke is absorbed within seconds and is delivered to the brain rapidly and efficiently, as would be expected of a highly lipid-soluble drug. Maximum blood concentrations are reached about the time smoking is finished and then rapidly dissipate. Psychopharmacologic effects peak at 30 to 60 minutes. The clear advantage of smoked marijuana is the rapid onset and dissipation of effects, because the patient is able to self-titrate the dose. In addition, the plant contains many other compounds (including about 60 cannabinoids) that may produce some additional benefits [ 42 ].

Looking to the future, there may be safer alternatives on the horizon, including a medical marijuana patch. Medical Marijuana Delivery Systems (MMDS) LLC announced in February 2011 that it had obtained U.S. patent rights to a medical marijuana patch. MMDS will market the patch under the name Tetracan, and is hopeful that the patch will be available at dispensaries in approved states across the US by the end of 2011. The company continues to work on other delivery systems like creams, gels and oils [ 43 ]. Another alternative to smoking marijuana is ingesting the drug directly. Baking marijuana directly into foods is another way to reap the benefits of marijuana while avoiding the toxic effects of smoking the drug.

Oncologists were among the first medical professionals to advocate for the medical use of smoked marijuana. Reacting to a DEA suggestion that only a “fringe group” of oncologists accepted marijuana as an antiemetic agent, a random survey of the members of the American Society of Oncology was conducted in 1990. More than 1000 oncologists responded to the survey; 44% reported that they had recommended marijuana to at least one patient. Smoked marijuana was believed to be more effective than oral Marinol by the respondents. Of those who believed they had sufficient information to compare the two drugs directly, 44% believed smoked marijuana was more effective and 13% that Marinol was more effective [ 44 ]. In addition, the cost of smoked marijuana is considerably cheaper. “The cost of producing cannabis is about a dollar an ounce, and medical distribution would add at most a few more dollars. There are about 60 marijuana cigarettes in an ounce, and the average dose is one cigarette or less” [ 45 ].

A 2003 survey of 400 physicians, both general practitioners and specialists in the Netherlands, was performed just before the legal introduction of medicinal cannabis. Only 6% said that, under no condition, were they willing to prescribe medicinal marijuana, while 60% to 70% regarded medicinal cannabis sufficiently socially accepted and would prescribe it if asked for by a patient [ 46 ].

Scientific research on the medical effects of marijuana has been limited due to the stipulation that all studies must be funded by the National Institutes of Health. However, since 1978, the federal government has provided 20 patients with medical marijuana under a compassionate investigation new drug program. The Institute of Drug Abuse pays the University of Mississippi to grow a consistent, reliable source of research-grade cannabis. This is a pure (unadulterated and standardized) form of marijuana without contaminants or pesticides. A North Carolina manufacturer receives $62,000 a year from the federal government to roll the marijuana cigarettes and ship them in sealed tins of 300 cigarettes, to the patients’ doctors and pharmacists. Each participant was given a letter from the FDA authorizing them to use this illegal substance that can bring a federal prison term of five years. In 1991, the federal government terminated this program, which was the only legal way to obtain access to marijuana. This program was terminated because, in the government’s opinion, too many people became aware of the program and were asking for access to medical marijuana supplies. Twelve individuals were receiving marijuana cigarettes in 1991 and they were “grandfathered” when the program was terminated. Since that time, four individuals have died from AIDS and the remaining eight continue to receive their supply of marijuana cigarettes [ 47 ]. While the federal government at one time appeared to be moving toward acceptance and perhaps legalization of medical marijuana, it has instead decided to allow this program to disappear through attrition.

In February 1997, the National Institutes of Health released its report on the results of an expert panel that was convened to investigate the therapeutic potential of marijuana and to identify future research avenues that would be most productive. The panel of experts identified five areas where there was at least a suggestion of therapeutic value of marijuana and for which further study was indicated. The five areas were: (1) stimulates appetite and alleviates cachexia (severe weight loss), (2) controls nausea and vomiting associated with cancer chemotherapy, (3) decreases intraocular pressure for those suffering from glaucoma, (4) analgesia (pain reliever), and (5) neurologic and movement disorders are relieved. The group also concluded that more extensive studies were needed to fully evaluate the potential of marijuana as supportive care for cancer patients. Suggested areas of study were a smoke-free delivery system of marijuana’s active ingredient THC, effects of marijuana on the lungs and immune system, and the dangerous byproducts of smoked marijuana [ 48 ].

On March 17, 1999, a panel of 11 independent experts at the Institute of Medicine released an extensive analysis of the medical uses of marijuana. This two-year study was ordered and financed by the White House Office of National Drug Control Policy. The report cautioned that the benefits of smoking marijuana were limited because the smoke in itself is so toxic. Yet at the same time, the panel of experts recommended that marijuana be given, on a short-term basis under close supervision, to patients who did not respond to other therapies. The panel believed that because of the toxicity of the smoke, the true benefits of marijuana would only be realized when alternative methods like capsules, patches and bronchial inhalers were developed to deliver more active components, called cannabinoids, without the harmful carcinogens of the smoke. The researchers recommended that the government should take the lead in developing more effective cannabinoid drugs. However, realizing this would take years to develop, the panel recommended that people, who do not respond to other therapy, be permitted to smoke marijuana in the interim. In addition to these recommendations, the report also contained new findings about the effects of marijuana on various medical conditions. In addition to the usefulness of medical marijuana in treating pain, nausea, and weight loss associated with AIDS, the report concluded that despite popular belief, marijuana was not useful in treating glaucoma. Marijuana does reduce some eye pressure associated with glaucoma; however, the effects were short-term, and did not outweigh the long-term hazards of using the drug. In addition, the study found there was little evidence that marijuana had any effect on movement disorders such as Parkinson’s disease or Huntington’s disease, but it was effective in combating the muscle spasms associated with MS [ 49 ].

Following the release of the Institute of Medicine’s report on medical marijuana in 1999, evidence supporting medical marijuana has increased. In the last three years, cannabinoids have been found to help kill breast cancer cells [ 50 ], fight liver cancer [ 51 ], reduce inflammation [ 52 ], have antipsychotic effects [ 53 ] and even potentially help stave off the development of Alzheimer’s disease [ 54 ] and reduce progression of Huntington’s disease [ 55 ].

Most recently in 2011, cannabinoids’ treatment of chronic non-cancer pain was examined using a randomized controlled trial. The cannabinoids studied were smoked cannabis, oromucosal extracts of cannabis based medicine, nabilone, Marinol and a novel THC analog. The non-cancer pain conditions were neuropathic pain, fibromyalgia, rheumatoid arthritis, and mixed chronic pain. Of the eighteen trials, fifteen showed a significant analgesic effect of cannabinoid compared to the placebo, and more importantly, there were no serious adverse effects. The overall results of the study stated that cannabinoids are safe and modestly effective in the treatment of the above mentioned non-cancer pain [ 56 ].

In October of 2009, the Office of the Deputy U.S. Attorney General issued a memorandum titled, “Investigation and Prosecutions in States Authorizing the Medical Use of Marijuana.” The memorandum stated that the federal government would abstain from prosecuting individuals who are in compliance with state laws that allowed for the medical use of marijuana, but clearly stated that the government did not “legalize marijuana or provide a legal defense to a violation of federal law” [ 57 ].

However, once again, the government seems to be contradicting itself. While states increased regulation to protect and improve the structure of the medical marijuana industry in their states, despite guidelines set forth in the memorandum, federal prosecutors continued to assert themselves in these states, with acts like raids and strongly worded letters to governors. As of May 2011, letters have been sent to governors in Arizona, Colorado, Montana, Rhode Island, Vermont and Washington, which has made some states like Rhode Island, Montana and Washington revise or shift away from their plans to make a more mainstream medical marijuana industry. In Washington, Governor Christine Gregoire responded to a letter she received on the matter by asking for clarification from Washington’s two United States attorneys. They responded to the governor’s request by stating that the government would prosecute “vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law” [ 58 ]. Supporters of medical marijuana believe that the federal government is sending mixed signals, but as a spokeswoman for the Justice Department said, “This is not a change in policy. It’s a reiteration of the guidance that was handed down in 2009 by the deputy attorney general” [ 58 ].

The original state to legalize medical marijuana, California, has seen its share of crackdowns in the past few years. As federal enforcement was relaxed in 2009, the number of dispensaries skyrocketed. Cities like San Diego, San Francisco, and Los Angeles have now begun to raid and close several dispensaries. In Los Angeles, for example, one series of raids closed approximately 40 dispensaries [ 59 ].

As stated earlier, the DEA ruled in July 2011 that marijuana has “no accepted medical use” and should therefore remain illegal under federal law [ 12 ]. This ruling came in response to a 2002 petition filed by medical marijuana advocates asking for a reclassification of marijuana as a Schedule III, IV, or V drug. This may seem like a setback to advocates, however, it may in fact be an advance. The petition was filed in 2002, and after much delay, the government has finally ruled, which now allows advocates to appeal the government’s ruling in federal court. This is not the first time a petition to reclassify marijuana has been rejected. Twice before has such a petition been rejected – the first in 1972 (denied 17 years later) and the second in 1995 (denied six years later) [ 60 ]. Both decisions were appealed by advocates, but the courts upheld the rejections and sided with the federal government.

As a result of this medical research, 16 states, as well as the District of Columbia, have approved ballot initiatives making marijuana legal for medical purposes [ 3 ]. One of the first states to do so was Arizona. In the November 1996 elections, Arizona voters passed Proposition 200 by a vote of 65% to 35%. Arizona law mandated that the prescribing physician must: document that scientific research exists which supports the use of a Schedule I substance for this purpose, receive written consent from the patient, and obtain the written opinion of a second medical doctor that the prescription is appropriate. The major concern of the Arizona proposition was that it allowed physicians to prescribe any Schedule I drug. To rectify this, the Arizona legislature amended the law to apply to only FDA-approved drugs in April 1997 [ 61 ]. A more recent state to approve medical marijuana was New Jersey in 2010. This legislation easily passed in both houses: 48-14 in the General Assembly and 25-13 in the State Senate [ 62 ]. New Jersey is one of the few states on the East Coast to approve legislation for medical marijuana, and has implemented more restrictive measures than original states like Arizona and California. According to New Jersey law, doctors are only allowed to prescribe marijuana for a set list of serious illnesses. Patients are forbidden from growing marijuana and using it in public, and are limited to two ounces of marijuana per month. These restrictive laws have attempted to eliminate the loopholes seen in other states where marijuana crackdowns have occurred. Ever since the implementation of the guidelines set forth by states like Arizona and California, there has been a movement toward increasingly strict laws. As more states continue to legalize the medicinal use of marijuana, it would appear that the issue has become less about the medical issues, and more about the political implications.

Legal Perspective

While a strong case may be made for the medical and ethical bases in support of the legalization of medical marijuana, the United States’ strong anti-drug stance [ 63 ] makes it impossible to view the issue without considering its legal effects. The legalization of medical marijuana invokes various fields of law. First and perhaps most obviously, is criminal law. As a Schedule I drug [ 64 ], the most serious classification under the current federal regime, marijuana is heavily regulated at the federal, state, and local levels. Second, issues of administrative law are raised by the rights of states to engage in rulemaking and pass legislation that is adverse to well-established federal criminal law precedent. Finally, health law is implicated. While overshadowed by the criminal and administrative law effects, medical marijuana raises important issues concerning doctors’ and patients’ rights, specifically medical autonomy, as well as medical malpractice issues such as overuse by patients, over-prescription by doctors for monetary gain, and use by non-patients, including second-hand consumption.

At its core, the legalization of medical marijuana presents a centuries-old struggle between federal and state rights. As explored in considerable detail herein, since the founding of this Nation, states have sought to govern their residents in a manner appropriate to the circumstances of that particular state and without interference from the federal government. For example, recollecting the discontent that ultimately gave rise to the Civil War, the southern states felt that the federal government was out of touch with their mainly agriculturally-based society compared to the northern states’ mainly industrially-based society, and therefore believed that they ought to be able to govern themselves.

Even today, the distinction exists. Take for instance, Delaware and its pro-corporate laws which attract countless Fortune 500 companies to incorporate there [ 65 ]. While all but a few of the companies are headquartered in other states, they come to Delaware for its generous tax structure and well-established corporate case law. If Congress were to federalize corporate law, Delaware would certainly argue that the government was infringing on its rights as a state. Similarly, more than a dozen states have to some extent passed legislation legalizing medical marijuana, arguing in part that the individual medical needs of their residents is separate and distinct right from the federal government’s right to regulate the use of marijuana.

To date, sixteen states and the District of Columbia have passed legislation legalizing medical marijuana; however, marijuana is a Schedule I drug under the Controlled Substances Act (CSA), 21 U.S.C. § 801, et seq. Congress, in enacting the CSA, recognized that although many controlled substances have a beneficial medical purpose, such purpose does not outweigh the important societal concern of conquering drug abuse and the legitimate and illegitimate trafficking of controlled substances. In particular, Congress made the following finding: “Many of the drugs included within [the CSA] have a useful and legitimate medicinal purpose and are necessary to maintain the health and general welfare of the American people.” 21 U.S.C. § 801(1). So how are states permitted to enact legislation that so clearly runs afoul of established federal law? The answer to that question is complex and developed herein.

The United States Supreme Court, the final arbiter of legal matters in the Nation, has taken on the issue of medical marijuana only once. In 2005, the case of Gonzalez v. Raich (referred to herein as “ Raich ”) dealt directly with whether the federal government could criminalize the use of medical marijuana that was legal under California’s medical marijuana laws [ 66 ]. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996 [ 67 ], to “create an exemption from criminal prosecution for physicians, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation of approval of a physician” [ 68 ].

Angel Raich and another woman named Diane Monson were California residents who were prescribed marijuana by their licensed, board-certified family practitioners to alleviate pain associated with a myriad of medical conditions. Monson grew her own marijuana, while Raich relied on caregivers to provide hers. In 2002, county sheriffs and federal agents from the Drug Enforcement Agency came to Monson’s home. After a three-hour standoff, county officials determined that Monson’s marijuana use and cultivation was entirely lawful. Nonetheless, federal agents seized and destroyed all six of her marijuana plants as a violation of the CSA.

Monson joined with Raich to bring an action against the Attorney General of the United States [ 69 ] prohibiting the enforcement of the CSA for personal medicinal use provided by state law. At the District Court level [ 70 ], the District Court denied their motion for an injunction (a legal action effectively halting, in this case, government conduct). Raich and Monson appealed to the Federal Court of Appeals for the Ninth Circuit [ 71 ]. The Ninth Circuit reversed the District Court’s ruling, holding that the use of medical marijuana pursuant to the Compassionate Use Act is a “separate and distinct” activity and sufficiently “different in kind from drug trafficking” prohibited by the CSA. The Department of Justice, on behalf of the Attorney General, then appealed the Ninth Circuit’s decision to the Supreme Court.

The Supreme Court, in a divided 6-3 decision, reversed the Ninth Circuit and held that the federal government is acting squarely within its rights to criminalize the manufacture and possession of marijuana even where states approve its use for medicinal purposes. In support of its position, the Supreme Court cited an enumerate power of the Constitution, adopted in 1787, which provides that the federal government may “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” [ 72 ]. That power is known as the Commerce Clause.

Raich and Monson argued that the Commerce Clause was intended to apply only to the regulation of interstate commerce, not intrastate commerce, especially when done in the privacy of one’s own home. The Supreme Court, citing a 1942 opinion [ 73 ], held that the federal government may regulate any activity that has a substantial effect on interstate commerce. The Supreme Court acknowledged that the federal government had to satisfy only the most-minimal burden of proof to determine that an activity has a substantial effect on interstate commerce. In the case of medical marijuana, the Supreme Court held that difficulties in distinguishing locally-cultivated and marijuana grown elsewhere, coupled with concerns of diversion into illicit channels, that the federal government met its burden for believing that the failure to regulate the intrastate manufacture and possession of marijuana would frustrate the Congressional intent of the CSA. Finally, the Supreme Court made clear that the fact that Raich and Monson used marijuana medicinally made no difference. Citing to what is known as the Constitution’s Supremacy Clause [ 74 ], the Supreme Court unambiguously stated that when there is a conflict between federal and state law, federal law prevails.

The Supreme Court’s ruling in Raich would seem to effectively abolish all state laws legalizing the use of medical marijuana. Nonetheless, states continue to pass such laws. Thus, the tension between state and federal rights is ever-apparent. What many people do not realize, and it is unclear to what extent even prescribing physicians are aware, while a state law may legalize medical marijuana within a particular state, federal regulations – including criminal and civil penalties – still apply. Moreover, prescribing physicians must be cognizant of patients who reside, or even frequently travel to, a state other than that in which the physician practices or is licensed.

Further complicating this legal quagmire of state versus federal rights concerning the legalization of medical marijuana is that in October 2009, Attorney General Eric Holder issued a memorandum that the Department of Justice would stop enforcing the federal marijuana ban under the CSA against people who act in compliance with state medical marijuana laws. While this may at first appear as a victory for state rights, it should be carefully noted that a government memorandum has absolutely no legal precedence and would certainly not trump the Supreme Court’s holding in Raich . The practical effect of the memorandum is only to delay the unresolved tension between state and federal rights in this area, as absent enforcement, the Supreme Court will not have another attempt to further develop its holding in Raich . In other words, it is just another hurdle in clearing the way to a decisive legal position in the matter.

Finally, the dispute between state and federal governments is not the only obstacle to a clear understanding of the legal status of medical marijuana. As discussed in the previous section, some local governments (cities, counties, etc.) in states that have legalized medical marijuana, now seek to impose their own regulations. Such is the case in the City of Anaheim, California, where on August 15, 2011 the Superior Court ruled in the case Qualified Patients Association (QPA) v. City of Anaheim that the City has the legal right to ban all medical marijuana dispensaries within the boundaries of the City. In short, the Court upheld a City Ordinance (Ordinance No. 6067), banning medical marijuana dispensaries as a public nuisance. The Court’s decision, however, does not affect the use of medical marijuana or distribution through other legal means.

The Court in QPA v. Anaheim noted that Art. IX, § 7 of the California Constitution provides that “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws” of California. One such permitted ordinance is that which abates a public nuisance.” California law defines a public nuisance as “one which affects at the same time an entire community or neighborhood, or a considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” The Court reasoned that mass distribution of medical marijuana through dispensaries, which are become largely unregulated, constitutes a public nuisance.

It is important to note that this is a decision at the trial court level which has no precedential value on anyone except the parties involved. It is likely that the proponents of the dispensaries will appeal to the appellate court and, if necessary, supreme court, where a decision would have a more widespread effect. Nonetheless, the decision is significant as indicative of another avenue in which governments can use legal measures to defeat what was otherwise thought to be a “legal” state action.

From a health law perspective, physicians must carefully balance their medical and ethical responsibilities to their patients, with their own moral and legal responsibilities in following the law of the land. Although plausible after Raich , it is currently unclear to what extent a prescribing physician could be criminally charged with drug trafficking under the CSA or to what extent medical malpractice is implicated if a physician prescribes medical marijuana to a patient without explaining the possible legal consequences. Further, while that may not be the prescribing physician’s legal duty to convey such information, it may be his or her medical or ethical duty in obtaining a patient’s informed consent. If this analysis has shown anything, it is the paramount importance that prescribing physicians and patients alike are aware that the legal status of medical marijuana, despite the laws of sixteen states and the District of Columbia, is entirely unresolved.

Ethical Perspective

Society, in general, has always recognized that in our complex world there is the possibility that we may be faced with a situation that has two consequences – one good and the other evil. The time-honored ethical principle that has been applied to these situations is called the principle of double effect. As the name itself implies, the human action has two distinct effects. One effect is the intended good; the other is unintended evil. As an ethical principle, it was never intended to be an inflexible rule or a mathematical formula, but rather it is to be used as an efficient guide to prudent moral judgment in solving difficult moral dilemmas [ 75 ]. The principle of double effect specifies four conditions which must be fulfilled for an action with both a good and an evil effect to be ethically justified:

The action, considered by itself and independently of its effects, must not be morally evil. The object of the action must be good or indifferent.

The evil effect must not be the means of producing the good effect.

The evil effect is sincerely not intended, but merely tolerated.

There must be a proportionate reason for performing the action, in spite of the evil consequences [ 76 ].

The principle of double effect is applicable to the issue of whether it is ethical for a physician to prescribe marijuana for medical reasons because it has two effects, one good and the other evil. The good effect is that smoked marijuana is more effective than conventional therapies in helping patients withstand the effects of accepted, traditional treatments which can bring about a cure or the amelioration of their condition. The evil effect is that marijuana smoke has toxic effects and as a Schedule I illegal drug it has been argued it could lead to more serious drug abuse and send a wrong message that illegal drug use is safe and even condoned. To determine if it is ethical for physicians to prescribe medical marijuana for patients as a medical therapy, this issue will be examined in light of the four conditions of the principle of double effect.

The first condition allows for the medical use of marijuana because the object of the action, in and of itself, is good. The moral object is the precise good that is freely willed in this action. The moral good of this action is to help treat pain, nausea, severe weight loss associated with AIDS and to combat muscle spasms associated with multiple sclerosis that cannot be treated adequately by traditional medicines. The immediate goal is not to endorse, encourage or promote illegal drug use. Rather, the direct goal is to relieve patients of their unnecessary pain and suffering [ 77 ]. The second condition permits the medical use of marijuana because the good effect of relieving pain and suffering is not produced by means of the evil effect. The two effects happen simultaneously and independently. The third condition is met because the direct intention of medical marijuana is to give patients suffering from life-threatening illnesses relief from the effects of accepted treatments that could cure their medical condition. Recent studies have shown that medical marijuana is more effective in controlling pain and nausea from chemotherapy treatments and in boosting the appetites of AIDS patients so as to combat wasting than any of the traditional FDA approved medications. To deny a physician the right to discuss, recommend, and prescribe marijuana to patients is a direct violation of the physician-patient relationship. To make an informed decision about their treatment, patients have the right to expect full disclosure and discussion of all available treatment options from their physicians. Failure to do this violates the patient’s right of informed consent [ 78 ].

The hypothesized foreseen but unintended consequences of legalizing medical marijuana are two-fold. First, the smoke from marijuana is highly toxic and can cause lung damage. The intention of smoked marijuana is not to cause more health problems but to remedy the effects of existing treatments. Second, some members of the federal government believe that legalizing medical marijuana may lead to harder drug usage and may be seen as condoning and encouraging recreational drug use. Nevertheless, this has not been proven to be true. The March 17, 1999 report by the Institute of Medicine found no evidence that the medical use of marijuana would increase illicit use in the general population, nor was it a “gateway drug” that would lead to the use of harder drugs like cocaine or heroin [ 49 ]. According to bioethicist William Stempsey, M.D., the government’s belief that “the availability of drugs on the street is a function of the availability of prescription drugs is wrong. Morphine and other narcotics are available at present only by prescription, and there is no widespread abuse of these drugs” [ 79 ]. In addition, a 1994 survey in The New York Times found that 17% of current marijuana users said they had tried cocaine, and only 0.2% of those who had not used marijuana had tried cocaine. Ethicist George Annas points out that there are two ways to interpret this study. One way is to conclude that those who smoke marijuana are 85 times as likely as others to try cocaine; another way is that 83% of pot smokers, or five out of six, never try cocaine [ 80 ]. A 2003 study by Jan van Ours of Tilburg University in the Netherlands, cannabis users typically start using the drug between the ages of 18 and 20, while cocaine use usually starts between 20 and 25. But it concludes that cannabis is not a stepping stone to using cocaine or heroin. Four surveys, covering nearly 17,000 people, were carried out in Amsterdam in 1987, 1990, 1994 and 1997. The study found that there was little difference in the probability of an individual taking up cocaine as to whether or not he or she had used cannabis. Although significant numbers of people in the survey did use soft and hard drugs, this was linked with personal characteristics and a predilection to experimentation [ 81 ]. If officials in the federal government are worried that the legalization of medical marijuana will send the wrong message to our children about drugs, then Boston Globe columnist Ellen Goodman asks a good question: “What is the infamous signal being sent to [children]… if you hurry up and get cancer, you, too, can get high?” [ 82 ]. Will some people view the legalization of medical marijuana as the condoning and encouraging of marijuana for recreational drug use? The answer is “yes.” But this is not the direct intention of legalizing medical marijuana. The direct intention is to relieve pain and suffering that cannot be relieved by presently approved medications. This misinterpretation of the legalization of medical marijuana can be corrected through public education. Finally, the argument for the ethical justification of marijuana for medical use by the principle of double effect focuses on whether there is a proportionately grave reason for allowing the foreseen but unintended possible consequences. Proportionate reason is the linchpin that holds this complex moral principle together.

Proportionate reason refers to a specific value and its relation to all elements (including premoral evils) in the action [ 83 ]. The specific value in legalizing medical marijuana is to relieve pain and suffering associated with treatment for life-threatening illnesses. The premoral evil, which can come about by trying to achieve this value, is the foreseen but unintended possibility of the potential harmful effects of the smoke and the possibility that some may view this as condoning and even encouraging illegal drug use. The ethical question is: does the value of relieving pain and suffering outweigh the premoral evil of the potential harmful effects of the smoke and the possibility of scandal? To determine if a proper relationship exists between the specific value and the other elements of the act, ethicist Richard McCormick proposes three criteria for the establishment of proportionate reason:

The means used will not cause more harm than necessary to achieve the value.

No less harmful way exists to protect the value.

The means used to achieve the value will not undermine it. [ 84 ]

The application of McCormick’s criteria to the legalization of medical marijuana supports the argument that there is a proportionate reason for allowing physicians to prescribe marijuana. First, the most comprehensive scientific analysis to date by the Institute of Medicine cautioned that the benefits of smoking marijuana were limited because the smoke itself is toxic, but recommended that it be given, on a short-term basis under close supervision, to patients who do not respond to other therapies. The possible damage to an individual’s lungs is a legitimate health concern; however, the patients who would benefit from smoked marijuana are suffering from cancer, AIDS, MS, etc. Many of these conditions are terminal and the treatments they are undergoing also have toxic effects – chemotherapy, radiation, the AIDS cocktail, etc. The point is that the benefit of the treatments outweighs the burdens. The focus should be on encouraging the federal government to direct its research resources toward the development of alternative methods of delivering cannabinoids in the form of patches, capsules and bronchial inhalers. In this way the toxicity could be eliminated. The Institute of Medicine study also reported that there was no evidence that prescribing medical marijuana would increase illicit drug use or that it is a “gateway drug” that prompts patients to use harder drugs like cocaine or heroin. Second, at present, there does not seem to be an alternative medication that is as effective as smoked marijuana. Thousands of patients who have smoked marijuana illegally for medical purposes have attested to its effectiveness. Those patients who were and are involved in the government sponsored compassionate care program also attest to smoked marijuana’s effectiveness. In addition, scientific studies have shown that Marinol, Nabilone and Sativex are less effective, more difficult for nauseous patients to consume, and more expensive than smoked marijuana. There are also other approved antiemetic drugs or combinations of these drugs which have been shown to be effective in relieving pain and suffering in some cancer patients [ 85 ]. However, for others these medications have proven ineffective. To date, the only therapy that relieves their nausea and vomiting is smoking marijuana. Third, smoking marijuana for medical reasons does not undermine the value, which is the relief of pain and suffering. Many of the patients who would use medical marijuana are suffering from terminal conditions and are undergoing therapies that have serious side-effects. Since this seems to be the only therapy to date that relieves the pain and suffering of these patients, one can argue convincingly that it is a medical necessity. The federal government’s concern that legalizing medical marijuana could lead to the possibility of the slippery slope in regards to drug use is a real fear. But, this has not occurred with other prescription psychoactive drugs (e.g., morphine, codeine, cocaine, etc.) and there is no evidence it would occur with marijuana. Therefore, it is ethically justified under the principle of double effect for the federal government to legalize marijuana for patients who do not respond to traditional therapies. Seriously ill patients have the right to effective therapies. To deny them access to such therapies is to deny them the dignity and respect all persons deserve. The greater good is promoted in spite of the potential evil consequences.

Conclusions

After reviewing pertinent scientific data, it is evident that there is ample evidence to warrant the Obama Administration to authorize the DEA to reclassify marijuana as a Schedule II drug, which would allow the drug to be used for medical purposes. As a candidate, President Obama promised to maintain a hands-off approach in the this matter and Attorney General Eric Holder also stated that federal prosecutors would not prosecute patients or providers in accordance with state law; however, recent crackdowns suggest otherwise [ 86 ]. In order to ensure the proper regulation of medical marijuana and the issues currently surrounding the topic, the following recommendations are proposed:

1. Government rescheduling of marijuana

The top priority of the government, in regards to medical marijuana, should be to reclassify the drug as a Schedule II drug. This would enable dispensaries, clinics, pharmacies and physicians to provide patients with standardized, unadulterated forms of marijuana. If marijuana continues to be unregulated, patients will be forced to seek black-market marijuana, and risk possible legal repercussions to alleviate their condition. This argument is grounded in harm reduction, both legally and medically. Utilizing the proper legal and medical controls can provide an effective strategy to identify and reduce health hazards associated with smoked marijuana, as well as help to reduce legal prosecution faced with unregulated marijuana. [ 87 ]

2. FDA regulation of medical marijuana growth

Marijuana contains over 460 known compounds, sixty of which are cannabinoids. There are also a number of carcinogens present in smoked marijuana. The main psychoactive compound in the drug is THC, which controls the strength or potency. THC concentration in black-market marijuana can vary greatly, which can lead to adverse effects for patients who may seek alleviating effects for their condition. To minimize such health risks, the federal government, specifically the FDA, must monitor marijuana produced for medical purposes. Recently, there have been numerous crackdowns on people who grow marijuana for medical uses. This problem is therefore two-fold, with medical and legal aspects. If the FDA was to intervene and oversee the production of marijuana, this would reduce the number of questions surrounding the growing of marijuana and the arrests that follow, as well as control the hazardous aspects of marijuana. If FDA regulation is present in medical marijuana production, the THC concentration and concentration of other hazardous compounds in marijuana can be controlled, thus reducing the harmful effects that impact the health of numerous patients.

3. Advance research into more pure forms of smoked marijuana and cost effective alternatives

The medical community has provided studies proving the efficacy of marijuana in treatment of patients who have not responded to other treatments. Specifically, these studies have shown the therapeutic value of marijuana in controlling pain, alleviating nausea and vomiting, as well as alleviating symptoms of multiple sclerosis (MS) and AIDS. In 2011, a randomized controlled trial of cannabinoids’ treatment of chronic non-cancer pain also demonstrated positive outcomes [ 56 ]. Significant analgesic effects were seen in treating neuropathic pain, fibromyalgia, and rheumatoid arthritis. The most effective cannabinoid available to patients is smoked marijuana, however due to varying THC concentrations and the fact that the mode of ingestion is inhaled smoke, there are also adverse effects. Two options that may help to reduce these adverse effects are more pure forms of smoked marijuana and cost effective alternatives. A more pure form of smoked marijuana (i.e. less toxic compounds) would reduce the harmful effects of smoked marijuana, and therefore increase the benefits. Cannabinoid alternatives reduce the amount of these harmful compounds in marijuana. Such alternatives like Marinol, Nabilone, and Sativex do exist, however the two concerns that these alternatives pose are efficacy and cost. Smoked marijuana continues to be substantially more effective than these alternatives, and the cost of smoked marijuana is significantly less. In order to improve these alternatives and create new options, more research is needed.

4. Increased funding enabling agencies to accomplish this research

Medical marijuana research is contingent upon National Institutes of Health (NIH) funding. For 2011, the NIH has allocated only $2 million in the form of 4–5 grants for research in marijuana [ 30 ]. In order to properly research safer and cost effective alternatives, more NIH funding is necessary, and must be done to provide suffering patients with a beneficial treatment.

5. Increased pharmaceutical research into new medical marijuana alternatives (i.e. marijuana patch, inhaler, etc.)

To advance the development of new marijuana treatment alternatives, pharmaceutical companies should be given incentives to continue to explore new avenues for suffering patients. One such company that has begun development on a medical marijuana patch is Medical Marijuana Delivery Systems (MMDS) LLC. In February 2011, MMDS announced that they had acquired United States Patent rights to develop a marijuana patch for medical use. Walter Cristobal, the patch inventor, is working with MMDS to develop the patch-based delivery, as well as other delivery systems like creams and gels [ 43 ]. Another recent development in the marijuana industry has come from the pharmaceutical company Medicinal Genomics. As of August 2011, the company has successfully sequenced the entire genome of the cannabis plant, a breakthrough which has the potential to grow the number of treatment options available to patients [ 89 ].

Ethically speaking, denying physicians the right to prescribe a therapy that relieves pain and suffering to their patients is a violation of the physician-patient relationship. Patients are entitled to full disclosure of all possible treatment options from their physician in order to make an informed medical decision regarding their health. It is the medical responsibility of a physician to offer adequate relief from pain for their patients so that the patient may have an acceptable quality of life. Failure to provide an available therapy that has been proven effective would violate the basic ethical principle of beneficence, which is the obligation of physicians to seek the well-being or benefit of the patient. Under beneficence, a physician’s duties include preventing and removing harm, as well as promoting the good of their patient. To allow a patient to suffer when an effective treatment is available is to directly harm the patient, and therefore a violation of beneficence. Scientific research has shown that the benefits of medical marijuana greatly outweigh the burdens.

Overall, all people, especially in the federal government and the medical field, should be concerned over the quality of life of those suffering from neurological and movement disorders, cancer, wasting syndrome attributable to AIDS, etc. A 2010 Gallup poll of Americans has shown significant support for making marijuana legally available for doctors to prescribe for patients. The poll found that seventy percent of Americans are in favor, as negative feelings continue to decline [ 89 ]. Medical marijuana has proven invaluable in the battle against terminal illnesses; however, unless the federal government publically acknowledges this fact, numerous terminal patients will continue to suffer needlessly.

The fight against drug abuse is important because may lives are lost to drug addiction, but the effects of devastating illnesses impacts a substantially greater number of Americans. Medical marijuana can be an important treatment for physicians to confront the challenges of patients’ pain and suffering. The apparent political motivations present in the federal government must be eliminated because the quality of numerous American lives hangs in the balance. The dignity and respect of all persons must be a priority for the Obama Administration. It is time to voice support for the most vulnerable and reclassify medical marijuana as a Schedule II drug, because for many patients it is truly a medical necessity.

Source of support: Self financing

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On May 24, 2024, Minnesota’s governor signed an omnibus bill,  HF4757  which included the new Consumer Data Privacy Act. The state joins Kentucky, Minnesota, Nebraska, New Hampshire, New Jersey, and Rhode Island in passing consumer data privacy laws this year.

Minnesota’s law takes effect July 31, 2025, except that postsecondary institutions and nonprofit corporations governed by Minnesota Statutes, chapter 317A, are not required to comply until July 31, 2029.

To Whom does the law apply?

The law applies to legal entities that conduct business in the state of Minnesota or that provide products or services that are targeted to residents of the state and that during the preceding calendar year did any of the following:

• Controls or processes personal data of 100,00 consumers or more, excluding personal data controlled or processed solely for the purpose of completing a payment transaction, or,
• Derives over 25 percent of gross revenue from the sale of personal data and processes or controls personal data of 25,000 consumers or more.

Companies that are deemed a “small business” as defined by the United States Small Business Administration under the Code of Federal Regulations, title 13, part 121, are exempt from compliance with the exception that they must not sell a consumer’s sensitive data without the consumer’s prior consent.

Who is protected by the law?

Consumer means an individual who is a resident of the State of Minnesota. The definition of consumer does not include an individual acting in a commercial or employment context.

What data is protected by the law?

The law protects personal data, which is defined as any information that is linked or reasonably linked to an identified or identifiable individual. Personal data excludes de-identified data and publicly available information.

The Consumer Data Privacy Act contains numerous exceptions for specific types of data including data that meets the definition of protected health information under HIPAA, personal data collected, processed, sold, or disclosed pursuant to the federal Gramm-Leach-Bliley Act, and personal data regulated by the federal Family Educations Rights and Privacy Act.

The law also provides heightened protection for sensitive data, which means personal data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis, sexual orientation, or citizenship or immigration status; the processing of biometric data or genetic information for the purpose of uniquely identifying an individual; the personal data of a known child; or specific geolocation data.

What are the rights of consumers?

Under the law, consumers have the following rights:

• Confirm whether a controller is processing their personal data
• Access to personal data a controller is processing
• Correct inaccuracies in data a controller is processing
• Have personal data deleted unless the retention of the personal data is required by law
• Obtain a list of the categories of third parties to which the controller discloses personal data.
• Port personal data
• Opt out of the processing of personal data for targeted advertising, the sale of personal data, or profiling in furtherance of automated decisions that produce legal effects concerning a consumer or similarly significant effects concerning a consumer.

What obligations do controllers have?

Controllers under Minnesota’s law have the following obligations:

• Provide consumers with a reasonably accessible, clear, and meaningful privacy notice.
• Limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which the data are processed.
• Establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect, the confidentiality, integrity, and accessibility of personal data.
• Document and maintain a description of the policies and procedures to comply with the law.
• Conduct and document a data privacy and protection assessment for high-risk processing activities.
• Contractually obligate service providers who will process personal data on behalf of the organization to adhere to specific data protection obligations including ensuring the security of the processing.

How is the law enforced?

The statute will be enforced by Minnesota’s attorney general. Prior to filing an enforcement action, the attorney general must provide the controller or processor with a warning letter identifying the specific provisions alleged to be violated. If after 30 days of issuance of the letter the attorney general believes the violation has not been cured, an enforcement action may be filed. The right to cure sunsets on January 31, 2026.

The statute specifies that it does not create a private right of action.

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Texas’ junk science law is getting another look over Robert Roberson’s case

Dani Allen, center left with microphone, an anti-death penalty advocate, speaks during a protest outside the prison where Robert Roberson is scheduled for execution at the Huntsville Unit of the Texas State Penitentiary, Thursday, Oct. 17, 2024, in Huntsville, Texas. (AP Photo/Michael Wyke)

Thomas Roberson, older brother of condemned prisoner Robert Roberson, protests with others outside the prison where Roberson is scheduled for execution at the Huntsville Unit of the Texas State Penitentiary, Thursday, Oct. 17, 2024, in Huntsville, Texas. (AP Photo/Michael Wyke)

FILE - Texas lawmakers meet with Robert Roberson at a prison in Livingston, Texas, Sept. 27, 2024. (Criminal Justice Reform Caucus via AP, File)

Texas State Rep. John Bucy III speaks to reporters on the pending execution of Robert Roberson during an impromptu press conference outside of the Huntsville Unit of the Texas State Penitentiary, Thursday, Oct. 17, 2024, in Huntsville, Texas. (AP Photo/Michael Wyke)

Prison staff gather at the main entrance of the building housing the execution chamber as Robert Roberson awaits his execution, at the Huntsville Unit of the Texas State Penitentiary, Thursday, Oct. 17, 2024, in Huntsville, Texas. (AP Photo/Michael Wyke)

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AUSTIN, Texas (AP) — When Robert Roberson’s execution was abruptly halted in Texas, it was due to a subpoena ordering him to testify over a legal backstop that both Republicans and Democrats say should had saved him long ago: Texas’ junk science law.

The 2013 law allows a person convicted of a crime to seek relief if the evidence used against them is no longer credible. At the time, it was hailed by the Legislature as a uniquely future-proof solution to wrongful convictions based on faulty science. But Roberson’s supporters say his case points to faults in the judicial system where the law has been weakened by deliberate misinterpretation from the state’s highest criminal court.

On Monday, Roberson is scheduled to testify to members of a state House committee, four days after he had been scheduled to die by lethal injection .

“He’s seen how the prosecution has really stood in the way of bringing new science forward,” Democratic state Rep. John Bucy told The Associated Press. “I think his first hand account will be helpful for that.”

Roberson, 57, was convicted of murder the 2002 death of his 2-year-old daughter, Nikki Curtis, in Palestine, Texas. Prosecutors alleged that he violently shook his daughter back and forth, causing fatal head trauma. A bipartisan group of lawmakers, medical experts and the former lead prosecutor on the case have thrown their support behind Roberson, stating that his conviction is based on flawed science.

In his clemency petition to Republican Gov. Greg Abbott, several medical professionals wrote that Roberson’s conviction is based on outdated scientific evidence and that Curtis likely died from complications with severe pneumonia.

Shaken baby syndrome — now referred to as abusive head trauma — was a popular misdiagnosis at the time that has largely been debunked, according to Roberson’s attorneys.

Courts have rejected numerous attempts by his attorneys to hear new evidence in the case, and Texas’ parole board voted to not recommend Roberson clemency, a necessary step for Abbott to stay the execution. The governor has not commented on Roberson’s case.

No one facing execution has had their sentence overturned since the junk science law was enacted in 2013, according to a report by civil rights group Texas Defender Service.

In the last 10 years, 74 applications have been filed and ruled on under the junk science law. A third of applications were submitted by people facing the death penalty. All of them were unsuccessful.

Of the applications that led to relief, nearly three-quarters were for convictions related to DNA evidence despite making up less than half of all applications.

Legal experts suggest the reason for this is the Texas Criminal Court of Appeals misinterpreting the law and assessing applicants based on their innocence rather than the evidence.

“In practice, the CCA is applying a much higher standard than what the legislators wrote,” said Burke Butler, executive director for Texas Defender Service. “It (proving innocence) is a virtually impossible bar for anyone to meet,” she said, adding that DNA claims are likely more successful because the court can point to another perpetrator.

A House committee is set to discuss how the junk science law has failed to work as intended. In their subpoena to block the court’s execution warrant, lawmakers argued that Roberson’s testimony is vital to understanding its ineffectiveness.

Prosecutors have stated that the evidence in Roberson’s case has not changed significantly since his conviction. The Anderson County District Attorney Office did not respond to phone calls and voice messages Friday from The Associated Press.

Texas’ junk science law was the first of its kind in 2013 and a model for other states across the country, according to legal experts. California, Connecticut, Michigan, Nevada and Wyoming have similar “junk science” statutes, but it has not been studied how successful they are at overturning death penalty convictions.

There are many instances when prosecutors rely on inconsistent or faulty evidence during trial, and junk science laws can be a necessary tool to combat wrongful convictions, according to Jim Hilbert, a professor at the Mitchell Hamline School of Law.

“The Roberson case is a classic case that the Texas law was meant to address,” Hilbert, who has written about discredited science used in criminal trials, said.

“It has had a positive impact, but in such a limited way. There is so much more it can do.”

A previous version of this story incorrectly described Jim Hilbert as a professor at the University of Oklahoma. He is a professor at the Mitchell Hamline School of Law.

Lathan is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.

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Benami law: Supreme Court recalls 2022 judgment that declared amendments unconstitutional 

The bench, headed by chief justice of india d.y. chandrachud, referred the case for fresh adjudication.

Updated - October 18, 2024 01:34 pm IST - NEW DELHI:

A view of the Supreme Court of India. File | Photo Credit: The Hindu

A Special Bench of the Supreme Court on Friday (October 18, 2024) recalled its August 23, 2022 judgment which declared provisions and amendments made in the benami property law “unconstitutional and manifestly arbitrary.”

The Bench, headed by Chief Justice of India D.Y. Chandrachud, referred the case for fresh adjudication.

The amendments, introduced in 2016, had applied retrospectively and could send a person to prison for three years. It had empowered the Centre to confiscate “any property” subject to a benami transaction.

The decision to recall and have a re-look at the issue was based on review petitions filed by the Union Government and Deputy Commissioner of Income Tax (Benami Prohibition). The government was represented by Solicitor General Tushar Mehta.

The top law officer argued that the 2022 judgment had “unsettled 40 years of jurisprudence”.

Mr. Mehta said the short legal question raised before the apex court was whether the Prohibition of Benami Property Transactions Act, 1988, as amended by the Benami Transactions (Prohibition) Amendment Act of 2016, had a prospective effect.

However, the 2022 judgment traversed beyond the ambit of the question raised, to declare Section 3(2) of the unamended 1988 Act “unconstitutional for being manifestly arbitrary.”

The verdict under question had found Section 3(2) of the 2016 Act violative of Article 20(1) of the Constitution, which prohibits retrospective punishment.

The judgment had further found Section 5 allowing in rem forfeiture [a general seizure of property by the Government] of the unamended Act of 1988, prior to the 2016 Amendment Act, unconstitutional and manifestly arbitrary.

The Review Bench on Friday (October 18, 2024) said the parties were free to argue on the constitutionality of the benami law provisions before the appropriate Bench to be constituted by the Chief Justice of India in his administrative capacity.

The court made it clear that the arguments which led to the 2022 verdict had not squarely addressed the issue of the constitutional validity of Sections 3(2) and 5.

“It is trite law that a challenge to the constitutional validity of a statutory provisions cannot be adjudicated upon in the absence of a live lis [legal action] and contest between the parties. In the present case, the constitutional validity was not squarely addressed. We accordingly allow the review petition and recall the judgment,” the Review Bench recorded in its short order which restored the case back on the court’s board.

The Benami Transactions (Prohibition) Amendment Act of 2016 had amended the 1988 Act, expanding the statute to 72 Sections from a mere nine Sections.

Section 3(2) mandates punishment of three years’ imprisonment for those who had entered into benami transactions between September 5, 1988 to October 25, 2016. That is, a person can be sent behind bars for a benami transaction entered into 28 years before the Section even came into existence.

Section 5 of the 2016 Amendment Act had said that “any property, which is subject matter of benami transaction, shall be liable to be confiscated by the Central Government”.

The judgment had dismissed the government’s version that forfeiture, acquisition and confiscation of property under the 2016 Act was not in the nature of prosecution and cannot be restricted under Article 20.

The court had observed that the 2016 Act condemned not only transactions which were traditionally denominated as ‘benami’ but rather a “new class of fictitious and sham transactions”. The court said the intention of the Parliament was to condemn property acquired from ill-gotten wealth. “These proceedings cannot be equated as enforcing civil obligations,” Chief Justice (now retired) N.V. Ramana, who authored the 2022 judgment, had noted.

The court had explained that the “ in­ rem forfeiture ” extended the taint of entering into a benami transaction to the asset itself”.

“When such a taint is being created not on the individual, but on the property itself, a retroactive law would characterise itself as punitive for condemning the proceeds of sale which may also involve legitimate means of addition of wealth,” the judgment said.

The court had criticised how the Act granted extensive powers of discovery, inspection, compelling attendance, compelling production of documents to officials. It had empowered authorities to take the assistance of police officers, custom officers, income tax officers, etc, for furnishing information.

Published - October 18, 2024 11:30 am IST

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