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]

The Equifax, Inc. (Equifax) data breach was the second largest
data breach in United States history. Though it was not the largest,
the information stolen made it an unprecedented data breach. The 147
million consumers who lost their information in this breach looked to
the Federal Trade Commission (FTC) to help redress their loses.…[Read more]

In two recent decisions issued by the Attorney General of the
United States, asylum rights have diminished for private actions. The
Attorney General held in In re A-B- that private actions, such as
domestic violence or gang related violence, would almost never
qualify as the basis for asylum relief. Additionally, in In re L-E-A-, the
Attorney…[Read more]

Health care reform is once again in the air. Virtually all
Democrats favor some meaningful expansion of public insurance,
whether through single payer or the creation of a “public option” that
would allow consumers dissatisfied with the private market to buy into
a public program. Republicans, not surprisingly, have pushed back,
not only aga…[Read more]

In this time of high racial tensions, it is worth revisiting the
debate over de facto housing segregation. For more than half a
century, from the Fair Housing Act of 1968 through the recent
Supreme Court decision in Inclusive Communities, law has ostensibly
set a goal of housing integration. How can we assess this goal in an
age when most…[Read more]

Incivility can undermine the legal profession’s work and
effectiveness. However, existing scholarship, focused on explaining
lawyer incivility as an overextension of zealous advocacy, poor
training, or a business-driven model of lawyering, has misconceived
a key facet of incivility. Prevailing wisdom largely neglects that
lawyers use i…[Read more]

After decades of calls for comprehensive consumer privacy laws
in the United States, they are nearly here. The debates surrounding
these laws, however, have paid scant attention to the inevitable First
Amendment challenges. These challenges will occur in the context of
the “deregulatory First Amendment,” the Supreme Court’s decad…[Read more]

Many have accused patent law of impermissibly treating
human beings, and aspects thereof, as property by allowing human
inventions to constitute patentable subject matter, thus contravening
moral and ethic principles and violating laws such as the Thirteenth
Amendment. Although patents have issued claiming human subject
matter, patent law has…[Read more]

Demography affects the ability of countries to manage their debt
levels and to make macroeconomic policy. By the same token, the
demographic attributes of labor influence political decisions among
nations, including international trade policy. In particular, the free
movement of labor is a bedrock principle of the European Union. That
legal…[Read more]