For-profit art galleries are making news for the donations they are providing to
nonprofit art organizations to support exhibitions by artists these galleries represent (part of a broader practice I term “crayola, ” in reference to payola, the word invented to describe a similar practice of paying for airtime on radio and television). Yet…[Read more]

“It is not my fault; it is my brain implant which made me do it.” Some
scholars have argued that this could become a common strategy:
defendants might argue that as the result of a defective brain implant, an
autonomous brain implant, or someone hacking into their implant, they
should not be held responsible, or at least not fully…[Read more]

The lone scientist, toiling away over a Bunsen burner at midnight or
huddled in the comer of his garage with a few tools, has long held a
place in the American psyche. As tempting as this noble image is, the
truth is often much more mundane. Scientists typically work in groups,
with ideas flowing among members of the group in an…[Read more]

The modern agricultural biotechnology industry developed from a small cottage industry based on selective crop breeding into a multi-billion dollar industry based on the isolation and insertion of genes that code for commercially valuable crop
traits. As it grew, the industry relied on patent protection to recoup its investment into new research…[Read more]

The American penal system is racist, degrading, and inefficient.
Nonetheless, we cannot give up on punishment entirely, for social peace
and cooperation depend on the deterrent threat of the criminal
sanction. The question-central to determining the degree to which
punishment is justified-is why society’s need for general deterrence is
an…[Read more]

There are two well-worn arguments against a severe punishment like
long-term incarceration: it is disproportionate to the offender’s wrongdoing
and an inefficient use of state resources. This Article considers a third
response, one which penal reformers and theorists have radically neglected,
even though it is recognized in the law: the…[Read more]

Hundreds of thousands of Americans are serving decades-long prison sentences.
While scholars have established that these sentences are both economically inefficient and destructive of minority communities, a fundamental question remains: Is long term incarceration ever morally permissible? Understandably, the economists and sociologists of prison…[Read more]

This nomination is about more than who occupies one seat on the
Supreme Court. It is about more than the legal status of Roe v. Wade1
and reproductive rights and autonomy,2 the constitutionality of
Obamacare,3 the recognition of LGBTQ+ rights,4 or the future of
unions and the labor rights movement.s It is about more than the
adherence and…[Read more]

Two questions have dominated the intellectual history of the criminal law:
What acts or omissions should the state criminalize? and Why is the state
entitled to punish someone-that is, to intentionally harm them-when they
commit an offense? However, since the decline of the rehabilitative ideal in
the 19 7 0s,I and the subsequent rise of a…[Read more]

This Article inquires into the justification of state punishment. In developing this
question it relies upon two premises. The first premise is that, to justify its extreme
institutional costs, state punishment must deter crime to some sufficient degree.1 The second premise is a moral principle. It is a variation of the prohibition on using…[Read more]

“Limiting retributivists” believe that the vagueness of retributive proportionality
represents a moral opportunity. They maintain that the state can permissibly
harm an offender for the sake ofcrime prevention and other nonretributive goods,
so long as the sentence resides within the broad range of retributively “not
undeserved” punishments.…[Read more]

The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice. I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance…[Read more]

This Article addresses the distributive structure of intellectual
property and innovation policy1 and the foundational role it
plays in distributive justice. Distributive accounts of law are
undergoing a renaissance; an unprecedented paradigm shift away
from the wealth-maximizing approach to law and legal theory
and toward a distributive…[Read more]

This Article calls for recognition under international law of a
conditional peoples’ right to United Nations (U.N.) authorized armed
intervention to stop mass atrocities. The condition is that non-violent
strategies must have failed or must reasonably be expected to fail in
achieving this goal.

If recognized, the new right will for the…[Read more]

2
This Article shines a light on a little noticed phenomenon in American law:
the promulgation of ten state statutes and one state regulation, each requiring
education about genocide in elementary and/or secondary schools. The
mandates, adopted from 1989 through 2018, appear to be only the beginning
inasmuch as in 2017 another nineteen states…[Read more]

An age-old dispute persists over a fundamental problem of jurisprudence: what makes law law at its greatest level of generality (“Law”).’ There have been many schools of thought on the subject. Two of the major ones integral to solving the problem-positive law and natural law theories-have been locked in a battle royal for centuries.2 Disengaging…[Read more]

This Article demonstrates that nuclear weapons are inconsistent with
and destructive of the rule of law. Of course, use of nuclear weapons
would completely abrogate any extant rule of law in regions subject to
nuclear attack. That much is obvious, though hardly ever considered. The
Article’s other theses are much less intuitive and focus on…[Read more]

The phrase, “we are all [legal] realists now,” as Michael Green
notes, has been “so often said that it has become a cliché to call it a
‘cliché.’ ”1 Except when we are not, as the Michigan Supreme Court
indicated in a series of cases beginning with Wilkie v. Auto-Owners
Insurance Co.2 in 2003 and culminating with Rory v. Continental…[Read more]

Given a choice between two systems of contract rules, a court or legislature may
have a normative obligation to adopt the rule that is more susceptible to coding
and automation. This paper explores the ramifications of that normative proposition
through the lens of multiple contract doctrines that traditionally involve “messy”
judgments or…[Read more]

Hill v. Gateway 2000, Inc.1 is a fantastically awful decision. Legally,
Judge Frank Easterbrook’s analysis and reasoning2 either ignore
or grossly mischaracterize the law in several respects. Practically,
Hill (along with its partner-in-crime, ProCD v. Zeidenberg)3 led later
courts to rewrite the law of sales, particularly with respect to c…[Read more]