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Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law’s shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of cases, however, we found evidence of persistent bias regarding the gender identity and expression of the transgender parent—which we refer to as transition, contagion, and volition related concerns—that underscores the courts’ analysis. Normatively, this Article calls for a deeper interrogation of the ways in which family equality can be expanded—and even reoriented—to better protect the interests of transgender parents within the family law system. As a solution, we propose a way to balance courts’ broad discretion with the disproportionate risk that bias will infect the decisionmaking, resulting in irreparable harm to both the child and the parent.

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case? The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether two courts of appeals have decided the same issue differently, the Court looks to whether two fields of law conflict over the application of the same transsubstantive doctrine. Such “field splits” are unusual candidates for Supreme Court attention. After all, the Court’s interest in circuit splits is motivated by a desire for geographic uniformity in federal law. But field splits, unlike circuit splits, do not give rise to forum shopping concerns, do not undermine the predictability of the law, nor otherwise implicate the legal values that counsel in favor of uniformity. Instead, the Supreme Court’s attention to field splits may suggest that legal universality—consistency across substantive fields of law—is an important (but unstated) priority in certiorari decisionmaking. The exercise of this universality interest through certiorari decisions in patent cases has several consequences for the Supreme Court’s agenda. The Court must better explain why field splits merit review, and we must better understand how to distinguish those field splits that implicate the Court’s universality- related concerns from those that do not.

Forty odd years ago, the student editors of the Michigan Law Review had a problem: they had too few editors on staff, they were having 'trouble getting first-rate articles,' and [...]

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans with negative equity in their homes. Until the Supreme Court's 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, however, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a three-toone split of circuits in favor of the minority view that debtors could not modify even the unsecured portions of the mortgages on their principal residences. Courts and commentators have since assumed that modifying home mortgages in bankruptcy is impossible. This Article presents a legal strategy for modifying home mortgages despite Nobelman. The strategy requires that debtors move out of their houses, lease the houses for one year, file bankruptcy, and propose mortgage modification plans that pay mortgage holders the full current values of the houses. This Article argues that despite the artificiality of a move-out with the intention to return, bankruptcy judges will approve the modification plans. The judges will do so because existing precedent requires approval and because the modification plans will be in the best interests of not only the debtors but also the mortgage holders and the American economy. The strategy will enable hundreds of thousands of homeowners to retain homes they would otherwise have lost to foreclosure.

In today's economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters- they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy's Edge®, the new Disney Star Wars immersive theme park opening in 2019. Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning "merchandising rights" appurtenant to copyrights and trademarks that give fantasy owners exclusive rights to supply our fantasy worlds with everything from goods to a good time. But are there any limits? Do merchandising rights extend to fan activity, from fantasy-themed birthday parties and summer camps to real world Quidditch leagues? This Article challenges the conventional account, arguing that as the economic value of fantasy merchandising increases in the emergent "experience economy," intellectual property owners may prove less keen on tolerating uncompensated uses of their creations. In fact, from Amazon's Kindle Worlds granting licenses for fan fiction, to crackdowns on sales of fan art sold on internet sites like Etsy, to algorithms taking down fan videos from YouTube, the holders of intellectual property in popular fantasies are seeking to create a world requiring licenses to make, do, and play. This Article turns to social and cultural theories of art as experience, learning by doing, tacit knowledge, and performance to demonstrate that fan activity, from discussion sites to live-action role-playing fosters learning, creativity, and sociability. Law must be attentive to the profound effects these laws have on human imagination and knowledge creation. I apply the insights of these theories to limit merchandising rights in imaginative play through fair use, the force in the legal galaxy intended to bring balance to intellectual property law. [ABSTRACT FROM AUTHOR]

In 2015, a federal court held for the first time that the Environmental Protection Agency ("EPA") may regulate runoff manure as a "solid waste" under the Resource Conservation and Recovery Act ("RCRA"). The holding of Community Ass'n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation's primary toxic waste statute. This Comment argues that, once classified as a "solid waste," runoff manure fits RCRA's definition of "hazardous waste" as well. This reclassification would expand EPA's authority to monitor and respond to the nation's tragically common groundwater-contamination emergencies. [ABSTRACT FROM AUTHOR]

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it "has gone too far," giving rise to the intractable inquiry into "how much is too much." But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking. The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a new approach focused on legitimate state interest and partisan purpose, building on a constitutional norm against government partisanship. The importance of consolidating and reifying this norm, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime. [ABSTRACT FROM AUTHOR]

Scholars and practicing lawyers alike consider legal entities to be essential. Who can imagine running a large business without using a business organization, such as a corporation or partnership? This Article challenges conventional wisdom by showing that vast enterprises—with millions of customers paying trillions of dollars—often operate without any meaningful use of entities. This Article introduces the reciprocal exchange, a type of insurance company that operates without any meaningful use of a legal entity. Instead of obtaining insurance from a common nexus of contract, customers directly insure one another through a dense web of bilateral agreements. While often overlooked or conflated with mutual insurance companies, reciprocal exchanges include some of America’s largest and best-known insurance enterprises. This Article explores how it is possible to run an international conglomerate with essentially no recourse to organizational law as it is normally conceived, and it then draws out the important implications of these findings. The viability of reciprocal exchanges stands as a powerful foil to the academic consensus that legal entities are somehow essential, while nevertheless validating the underlying logic that led scholars to elevate entities in the first place. [ABSTRACT FROM AUTHOR]

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when deciding whether to prosecute noncorporate, as well as corporate, defendants and that the Department of Justice adopt departmental guidelines to ensure compliance with this goal. [ABSTRACT FROM AUTHOR]

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction. But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations of their federal rights. And unlike the more commonly invoked cause and prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves. Procedural adequacy doctrine can therefore catalyze reform in a way that cause and prejudice cannot. For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect. Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules. Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights. Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions. Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths. [ABSTRACT FROM AUTHOR]

In Smith v. Doe, the Supreme Court held that Alaska's sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed the issue. This Note argues that the Court should suspend the presumption of constitutionality when conducting its ex post facto inquiry for laws that burden juvenile offenders. The Court should do so because the very rationales that underlie the presumption are inapplicable in both the case of juvenile offenders and the ex post facto context. In lieu of rational basis review, this Note proposes a new framework under which the Court may evaluate laws that burden juvenile offenders. Under this new framework, a law is automatically punitive when it activates one or more of three triggers. These triggers are activated when a sanction is (1) irrevocable for life, (2) substantially likely to cause severe psychological trauma, or (3) grossly disproportionate to the culpability of the offender. [ABSTRACT FROM AUTHOR]

This Article examines a characteristic of property entitlements fundamental to the structure of property systems that has received scant academic attention, a characteristic referred to as the mutual exclusivity principle. According to this principle, a property system does not allow for the existence of incompatible rights. Two people cannot separately be the owners of the same resource, for instance. By contrast, two people can each hold valid but contradictory contract rights to the resource. Although the existing property literature has stressed the “exclusive” nature of property, the various ways in which property is imagined to be exclusive, such as by conferring “rights to exclude,” fail to capture the essence of property as a distinct legal institution. Unlike these alternative conceptions of exclusiveness, the mutual exclusivity principle holds true across the range of different types of property entitlements, including not just fee simple ownership but also security interests and servitudes, and across the range of assets subject to property law, including not just land and physical objects but also intangibles like intellectual property and corporate shares. Recognizing the role of the mutual exclusivity principle yields a number of practical insights. It helps explain various institutional features of property law, such as the system of future interests, the use of possession-based rules, the role of recording systems, and the negative, thing-based structure of property entitlements. It illuminates connections between property and other fields like corporations law and it calls into question aspects of existing doctrine, such as the preferred status of exclusion rights under the U.S. Constitution’s Takings Clause. It also modifies the influential theory that property law is heavily shaped by problems of high information costs: while existing accounts seem to suppose that property law entails relatively high information costs because it imposes a relatively broad set of duties on others, many of the information cost problems identified in the literature actually result from the mutual exclusivity problem, rather than from the breadth of property duties. At a more general level, understanding the centrality of the mutual exclusivity principle suggests some change in direction is called for within the wider property literature. American property scholarship has been preoccupied with questions about the scope and strength of property rights, overlooking the separate problem of ascertaining who happens to hold a given right, a problem distinctive to property law. Property, this Article argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain. [ABSTRACT FROM AUTHOR]

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record ("criminal noncitizens"). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense "when the alien is released" from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read "when the alien is released" to mean "any time after the alien is released," allowing the government to detain and deport criminal noncitizens years or decades after their release from criminal custody. A majority of district courts as well as the First Circuit, however, have interpreted the clause to mean "immediately upon the alien's release." Under this construction, immigration enforcement can detain a criminal noncitizen for deportation and detention only shortly after her release from criminal custody. This Note argues that in light of recent legal and policy changes, the latter interpretation of section 1226(c) offers the correct understanding of the statute. It further contends that a universal one-year time bar should be implemented for detentions occurring under section 1226(c) to respect due process concerns. [ABSTRACT FROM AUTHOR]

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals' incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered" a new fraud-fighting tool. They've started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity- while tort reform advocates have applauded these efforts and exhorted more "courageous" companies to follow suit. Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO's use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system's operation and integrity. [ABSTRACT FROM AUTHOR]

Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as a whole. Given their costs, arrests should be used only when they serve an important state interest; yet, they often happen even when no such interest exists. Governments have allowed constitutional law to become the primary constraint on arrest practices, and it has proved a poor proxy for good policy analysis. The Fourth Amendment permits arrests whenever an officer has probable cause: it has no mechanism for ensuring that the state has any interest in making an arrest--as opposed to starting the criminal process in another way. More broadly, traditional arguments for arrests cannot justify existing arrest practice. Arrests are usually unnecessary to start the criminal process effectively, to maintain order, to collect evidence, or to deter crime. In most cases, reasonable, less intrusive, alternative means exist or could exist for achieving these ends. Even arrests for some serious crimes might be curbed significantly without risking substantial harm to public safety or order. If the state can achieve its law enforcement objectives without arrests, then police departments should conduct far fewer arrests than they currently do, and states should restrict the statutory authority to arrest accordingly. Though there are risks to reducing arrests, those risks are far less problematic than continuing what is presently a massive, and largely unnecessary, enterprise of state coercion. [ABSTRACT FROM AUTHOR]

The search incident to arrest exception authorizes an officer to search an arrestee's person and his or her area of immediate control. This exception is based on two historical justifications: officer safety and evidence preservation. While much of search incident to arrest doctrine is settled, tension exists between two Supreme Court cases, Rawlings v. Kentucky and Knowles v. Iowa, and a crucial question remains unanswered: Must an officer decide to make an arrest prior to commencing a search? In Rawlings, the Supreme Court stated that a search may precede a formal arrest if the arrest follows quickly thereafter. In Knowles, the Supreme Court rejected the lower court's reasoning that a search is valid so long as an officer has probable cause to make an arrest, even if an arrest never happens. This tension has led to differing interpretations among the lower courts, resulting in three different readings of Rawlings. This Note argues that Supreme Court should settle the lower courts' varied interpretations of Rawlings and Knowles and answer the unresolved question. It proposes a new rule and argues that the Supreme Court should hold that in order for a search incident to arrest to be valid, the officer must intend to make an arrest before commencing the search. [ABSTRACT FROM AUTHOR]

Today, many working parents are caught in a "childcare squeeze": while they require two incomes just to make ends meet, they end up spending a strikingly large percentage of their income on childcare so that they can work outside the home. Worse still, some parents find themselves "squeezed out" of the market entirely, unable to earn the additional income their families require because they cannot find jobs that pay enough to offset soaring childcare expenses. This Article argues that the tax laws have played an important role in aggravating these hardships. Currently, the Internal Revenue Code treats the childcare costs incurred by working parents as personal expenses, subject to various dollar limitations, percentage limits, and phaseouts. Once these limitations are applied, working parents will receive tax relief for only a small fraction of the childcare costs they actually incur. This Article shows that this is inappropriate as a matter of fundamental tax policy and results in the overtaxation of the working family. It then provides a blueprint for meaningful reform that would properly treat working childcare costs like other costs of earning income and keep the tax laws from worsening the working family's economic plight. [ABSTRACT FROM AUTHOR]

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for confession law going forward, courts will need to disentangle the complex of values that is discussed under that heading and then use their clarified understanding as the basis for a judicially administrable rubric for regulating interrogation practices. As a matter of history and current practice, I argue that there are two different strands within voluntariness doctrine--one deontological strand that focuses on the offensiveness of the police methods used and one consequentialist strand that is concerned with the problem of false confessions. Courts could profit from disentangling those strands and creating different tests for each. Once the two strands are separated, voluntariness doctrine can move toward rules that are tailored to the distinctive values animating each strand. Toward that end, I propose different tests for determining the voluntariness of confessions going forward depending on which of the two strands is implicated in a given case. [ABSTRACT FROM AUTHOR]

Courts have struggled to uniformly classify software as a good or a service and have consequently failed to apply a consistent body of law in that domain. Instead, courts have relied on the predominant purpose test to determine whether the Uniform Commercial Code ("UCC") or common law should apply to a given software contract. This test, designed for traditional goods and services that do not share software's complexity or rapid advancement, has perpetuated the uncertainty surrounding software's legal status. This Note proposes that courts adopt the substantial software test as an alternative to the predominant purpose test. Under this proposal, the American Law Institute ("ALI")'s Principles of the Law of Software Contracts would govern transactions that substantially involve software, and the UCC or common law would govern all other transactions. This new test would provide greater legal clarity with only a minimal shift in jurisprudence. No court has yet adopted a similar test or cited the ALI Principles as authority in a software dispute. The landscape is ripe for change. [ABSTRACT FROM AUTHOR]

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress ("CIED") statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way. In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it has only implicitly accounted for emotional harm; it has not made emotional harm an element of criminal liability. CIED statutes represent a break in this narrative. The Article uses these statutes as an entry point to examine the role that victim emotion does and should play in substantive criminal law, and it finds that CIED statutes may endanger free expression and equality and provide insufficient notice to defendants. These statutes thus offer a cautionary tale, illustrating problems that can arise when victim emotion plays an explicit role in criminal culpability. CIED statutes also reveal the comparative benefits of the implicit approach, which acknowledges the significance of nonphysical harm yet does not predicate criminal liability on the existence of emotional harm. [ABSTRACT FROM AUTHOR]

Congress broadly authorized the Federal Energy Regulatory Commission ("FERC") to protect consumers of electricity from all forms of manipulation in the electricity markets, but the regulations that FERC passed are not nearly so expansive. As written, FERC's Anti-Manipulation Rule covers only instances of manipulation involving fraud. This narrow scope is problematic, however, because electricity markets can also be manipulated by nonfraudulent activity. Thus, in order to reach all forms of manipulation, FERC is forced to interpret and apply its Anti-Manipulation Rule in ways that strain the plain language and accepted understanding of the rule and therefore constitute an improper extension of the fraud-based regulations to nonfraudulent activity. This Note argues that FERC ought to fix the current anti-manipulation regulatory regime, both as a matter of sound governmental regulation and to ensure fair notice to the regulated entities. In particular, this Note contends that FERC should redraft its Anti-Manipulation Rule and that, in doing so, it should use the Commodity Futures Trading Commission ("CFTC")'s rules as a model. By adopting the CFTC's rules, FERC could design a new anti-manipulation regulation that would properly and flexibly encompass all forms of potential manipulation in the electricity markets--a solution that would allow the law adequately to respond to future attempts at manipulation. [ABSTRACT FROM AUTHOR]

The United States has exhibited a strong commitment to public education throughout its history. The local control of education long associated with the United States' federal system, however, has led to extreme inequalities in education finance within states. This reality, held constitutionally permissible by the Supreme Court in San Antonio Independent School District v. Rodriguez, is a product of heavy reliance on local property taxation as a means to fund schools. Although levying property taxes is a permissible state action to promote local control of education, its unaltered use is archaic and ultimately detrimental due to the United States' growing income gap and corresponding wealth segregation in the housing markets. Because federal and state court litigation has produced an intractable and inequitable split in education policy that remains unsolved by current federal- and state-led initiatives, this Note argues that a conditional congressional grant of funds would serve as a new, more politically feasible solution to this problem. By making federal funding under the next reauthorization of the No Child Left Behind Act contingent on states' adoption of new school finance systems, particularly the Guaranteed Tax Base, Congress can encourage states to give all communities an equal opportunity to finance a high-quality education for their students, regardless of the value of their taxable property. [ABSTRACT FROM AUTHOR]

This Article provides the first comprehensive account of personalized default rules and personalized disclosure in the law. Under a personalized approach to default rules, individuals are assigned default terms in contracts or wills that are tailored to their own personalities, characteristics, and past behaviors. Similarly, disclosures by firms or the state can be tailored so that only information likely to be relevant to an individual is disclosed and information likely to be irrelevant to her is omitted. The Article explains how the rise of Big Data makes the effective personalization of default rules and disclosure far easier than it would have been during earlier eras. The Article then shows how personalization might improve existing approaches to the law of consumer contracts, medical malpractice, organ donation, inheritance, landlord--tenant relations, and labor law. The paper makes several contributions to the literature. First, it shows how data mining can be used to identify particular personality traits in individuals, and these traits may in turn predict preferences for particular packages of legal rights. Second, it proposes a regime whereby a subset of the population ("guinea pigs") is given a lot of information about various contractual terms and plenty of time to evaluate their desirability, with the choices of particular guinea pigs becoming the default choices for those members of the general public who have similar personalities, demographic characteristics, and patterns of observed behavior. Third, we assess a lengthy list of drawbacks to the personalization of default rules and disclosure, including cross subsidization, strategic behavior, uncertainty, stereotyping, privacy, and institutional-competence concerns. Finally, we explain that the most trenchant critiques of the disclosure strategy for addressing social ills are really criticisms of impersonal disclosure. Personalized disclosure not only offers the potential to cure the ills associated with impersonal disclosure strategies, but it can also ameliorate many of the problems associated with the use of personalized default rules. [ABSTRACT FROM AUTHOR]

The article discusses the book "Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law" by Margaret Jane Radin, focusing on the informed consent legal doctrine and various issues related to the terms and agreements that are associated with many contracts and consumer products. Radin's views on adhesion contracts, bargaining power, and the apparent ignorance of consumers are mentioned. Deprivations of legal rights and autonomism are examined, as well as American contract law.

The recent controversy surrounding President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in which powers conferred under the Clause are exercised--in other words, on the constitutional expectations that the president and the Senate bring to recess appointments practice. The practical constitutional expectations that have governed recess appointments practice have largely prevented the active use of the Clause's many textually plausible absurdities that would utterly disrupt the Clause's functionality. In light of the role that constitutional expectations play in the functionality, and therefore constitutionality, of the Clause, the recent pro forma appointments controversy should not be resolved by the courts. Instead, both the pro forma sessions held by the Senate and the pro forma session recess appointments made by the president present a nonjusticiable political question. By declining to decide the constitutionality of these actions, courts will provide the executive and legislative branch the opportunity to ensure agreement as to both the construction of the Recess Appointments Clause and the attendant constitutional expectations that assure its functionality. [ABSTRACT FROM AUTHOR]

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that reflect the perspectives of multiple institutional actors. This new understanding illuminates how both doctrines relate to the Court's earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court's work outside the confines of rights-based judicial doctrines by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired. [ABSTRACT FROM AUTHOR]