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From time to time, contests over decedents' estates arrive in the federal courts. One such case began when a hotel magnate, dividing his empire among the children of his first [...]

The stylized picture of content moderation that forms the basis for most regulatory and academic discussion of online speech governance is misleading and incomplete. That picture depicts content moderation as a rough online analog of offline judicial adjudication of speech rights, with legislative-style substantive rules being applied over and over again to individual pieces of content by a hierarchical bureaucracy of moderators. This understanding leads regulators and scholars to assume that the best way to make platforms accountable for their decisions about online speech is to ensure platforms provide users the kind of ex post individual review provided by courts in First Amendment cases and to guarantee users with ever more due process rights. But because the scale and speed of online speech means content moderation cannot be understood as simply the aggregation of many (many!) individual adjudications, what this approach produces is accountability theater rather than actual accountability. This Article argues that content moderation should instead be understood as a project of mass speech administration and that looking past a post-by-post evaluation of platform decisionmaking reveals a complex and dynamic system that needs a more proactive and continuous form of governance than the vehicle of individual error correction allows. Lawmakers need to embrace a second wave of regulatory thinking about content moderation institutional design that eschews comforting but illusory First Amendment-style analogies and instead adopts a systems thinking approach. This approach focuses on the need to look to structural and procedural mechanisms that target the key ex ante and systemic decisionmaking that occurs upstream of any individual case., CONTENTS INTRODUCTION I. THE STANDARD PICTURE OF CONTENT MODERATION II. THE STANDARD PICTURE'S BLIND SPOTS A. Content Moderation Bureaucracies Are a 'They' Not an 'It' 1. Non-Content-Based Content Moderation. 2. [...]

Facebook founder Mark Zuckerberg has created a private 'Supreme Court,' or so he says. Since 2021, his company's Oversight Board has issued verdicts on a smattering of Facebook's decisions about online speech. Cynics frame the Board as a Potemkin village, but defenders invoke analogies to separation of powers to claim that this new body empowers the public and restrains the company. Some are even calling for a single 'platform supreme court' to rule over the entire industry. Juridical discourse for platforms is powerful, but it can also be deceptive. This Response explores how juridical discourse has legitimized and empowered Facebook' Board, building on Professor Evelyn Douek's critique of how a 'stylized' picture likens content moderation to judicial review. While Douek focuses on how scholars and lawmakers preach this misleading picture, I expose how platforms drive juridical discourse for their own gain. This deeper understanding of platform complicity is key. Without it, we'll struggle to comprehend or contest the illusory picture of content moderation favored by platforms. With it, we might better resist platforms' attempts to thwart regulation that would better serve the public's interests., INTRODUCTION Love it or hate it, Facebook's fledgling Oversight Board is poised to usher in a new era of content moderation for online platforms. (1) The Board, launched two years [...]

The defining image of the twenty-sixth Conference of the Parties to the United Nations Framework Convention on Climate Change (COP26) featured Simon Kofe, Tuvalu's foreign minister, delivering his address while [...]

The climate is changing and so must our energy sources. But how do we get there? Who decides when and where to build new power stations across the country? And [...]

Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person's identity. Increasingly, however, these rights are working at odds with one another and can point in different directions with regard to who controls a person's name, likeness, and broader indicia of identity. This creates what I call an 'identity thicket' of overlapping and conflicting rights over a person's identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person's identity, if any, flows from the transfer of marks that incorporate indicia of a person's identity, and whether such transfers can empower a successor company to bar a person from using their own identity, and, if so, when. Part of the challenge for mediating these disputes is that both right of publicity and trademark laws are commonly thought of as concerned solely with market-based interests. But this is not the case. As I have documented elsewhere, the right of publicity has long been directed at protecting both the economic and the noneconomic interests of identity-holders. And, as I demonstrate here, it turns out that the same is true for trademark and unfair competition laws, which have long protected a person's autonomy and dignity interests as well as their market-based ones. After documenting and developing this overlooked aspect of trademark law, I suggest a number of broader insights of this more robust account of trademark law both for addressing the identity thicket and for trademark law more generally. First, I suggest that recognizing a personality-based facet of trademark law suggests a basis to limit the alienation of personal marks in some contexts. Second, this understanding shores up trademark's negative spaces, especially when truthful information is at issue. Third, recognizing trademark's personality-based interests provides a partial explanation (and limiting principle) for some of its expansionist impulses. Finally, I contend that recognizing this broader vision of trademark law provides significant guidance as to how to navigate the identity thicket. I employ trademark preemption analysis to mediate disputes between trademark and right of publicity laws. Trademark preemption provides an avenue out of the thicket, but only if trademark law's robust theory of personality is recognized. A failure to do so risks leaving us with one of two bad options: a right of publicity that acts as a 'mutant' trademark law, swallowing up and obstructing legitimate rights to use trademarks, or, alternatively, with a shallow husk of trademark law (rooted solely in commercial interests) that swallows up publicity claims at the expense of personal autonomy and dignity. Trademark law already provides us with the tools to avoid both of these unsavory paths--if only we reclaim its lost personality., CONTENTS Introduction I. The Identity Thicket II. Trademark's Conventional Objectives III. Reclaiming Trademark's Personality A. Unfair Competition and Trademark's Early Theory of Personality 1. The 'Natural Right' to One's Own [...]

It is--and has long been--well known that the Executive's power is expanding. To date, there are two dominant analyses of the judiciary's role in that expansion: the judiciary is intrinsically too weak to check the Executive or the judiciary has actively facilitated the Executive's unprecedented enlargement of power. This Article challenges those views. It argues that the judiciary is very much engaged in devising techniques to check executive power. Through developments that are managerial and doctrinal, substantive and procedural, high-profile and seemingly mundane, federal courts have subjected an important set of executive actions that this Article terms 'enforcement lawmaking'--the exercise of enforcement discretion in a manner that goes beyond simple policy and that shares attributes of law--to judicial oversight. Together, these developments reveal a potential shift in the structure of separation of powers. Courts have leveraged their inherent case-management powers--the procedures that shepherd lawsuits through the process of judicial review--to force transparency on the Executive and to hold it to account. This Article maps the effects of these 'managerial checks,' which render the simple existence of judicial review powerful, particularly when viewed together with the extension of justiciability and remediation doctrines. Courts have authorized judicial review earlier and to greater effect by redefining when executive action is ripe for judicial review. They have created new avenues for multiparty public litigation through developments in standing doctrine. And they have increasingly deployed a muscular remedy, the nationwide injunction, to counterbalance increasingly muscular forms of executive action. This Article argues that these developments along the entire life cycle of suits challenging enforcement lawmaking--from standing, to ripeness, to judicial recordkeeping and management, to remedies--should be viewed together and in separation-of-powers terms. The nuts and bolts of litigating these suits has led to an emerging expansion of judicial power. Courts have flexibly and responsively assimilated new assertions of executive power in ways that have restructured federal court doctrine and practice and emboldened federal courts. After documenting these changes at all levels of the federal judicial system, this Article offers a prescription for the Supreme Court. The Supreme Court should avoid prematurely dictating the boundaries of this expanded judicial power from above and instead allow district courts and courts of appeals considerable freedom to fashion the judiciary's checking powers from below. Such an approach will avoid premature Supreme Court interventions that have the effect of subjugating judicial power to executive power., CONTENTS INTRODUCTION I. COURTS AND EXECUTIVE POWER A. From Executive Power to Enforcement Lawmaking 1. Enforcement Lawmaking 2. Enforcement Lawmaking: Examples (a) Deferred Action for Childhood Arrivals (b) Transgender Bathroom [...]

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn't offer, and shouldn't be blamed for failing to offer, is a step-by-step procedure for finding them. Distinguishing standards from decision procedures explains originalism's tolerance for uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory's normative defenders; and gives us a better picture of originalism's use in practice. It would be nice if the correct constitutional theory also gave us easy answers in contested cases. But you can't have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same., I. The Practical Objection A. History B. Application II. Standards and Procedures A. Standards and Procedures in Ethics B. Standards and Procedures in Law C. Answering the Objection 1. History [...]

By late 2019, my husband and I decided that we were actually going to try to have a child in 2020. Not in the 'we-both-want-kids' kind of way--a bland affirmation [...]

Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v. Planned Parenthood, Justice Thomas chided the Court for declining to review a decision invalidating an Indiana law that prohibited abortions undertaken 'solely because of the child's race, sex, diagnosis of Down syndrome, disability, or related characteristics.' Arguing that the challenged law was merely Indiana's modest attempt to prevent 'abortion from becoming a tool of modern-day eugenics,' Justice Thomas proceeded to elaborate a misleading history in which he associated abortion with eugenics, racism, and a broader campaign to improve the human race by limiting Black reproduction. While many decried his selective and inaccurate invocation of the history of eugenics, Justice Thomas's ambitions for the concurrence likely went beyond the historical record. Indeed, in drafting the concurrence, Justice Thomas may have been less concerned with history than with the future--and specifically the future of abortion rights and the jurisprudence of race. As this Article explains, the concurrence's misleading association of abortion and eugenics may well serve two purposes. First, it justifies trait-selection laws, an increasingly popular type of abortion restriction, on the ground that such measures serve the state's interest in eliminating various forms of discrimination. But more importantly, and less obviously, by associating abortion with eugenic racism, the concurrence lays a foundation for discrediting--and overruling--Roe v. Wade on the alleged ground that the abortion right is rooted in, and tainted by, an effort to selectively target Black reproduction. Under the principle of stare decisis, a past decision, like Roe v. Wade, cannot be overruled simply because a majority of the current Court disagrees with it. Instead, a 'special justification' is required. Justice Thomas's association of abortion with eugenics constructs the case that racial injustice is the 'special justification' that warrants overruling Roe. In this regard, the Box concurrence builds on past decisions, like Brown v. Board of Education, as well as more recent cases, like Ramos v. Louisiana, in which the Court overruled past precedents, in part, to correct racial wrongs. If undertaken, the Box concurrence's latent strategy will be devastating to abortion rights, but as this Article explains, its deleterious impact goes beyond eviscerating Roe v. Wade. Under the concurrence's logic, race may serve dual purposes in shaping the Court's jurisprudence. As an initial matter, race--and the prospect of redressing racial injustice--furnishes the Court with a potent justification for reconsidering settled precedent. But it also provides the Court with an opportunity to articulate new law that affirms and entrenches the Court's preferred conception of race and racial harm. In this regard, the Box concurrence is not merely an invitation to recast abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial injury, and racism., CONTENTS INTRODUCTION I. RACE AND REPRODUCTION BEFORE AND AFTER ROE A. Race-ing Reproduction: From Slavery to the Birth Control Movement 1. Slavery and Reproduction 2. The Racial Politics of Abortion [...]

Michael Williams was a seventy-year-old diabetic serving a life sentence in Louisiana State Penitentiary, the country's largest maximum-security prison, for a crime he said he did not commit. (1) He [...]

The concept of 'information fiduciaries' has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-a-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-a-vis their end users. Over the past several years, this argument has garnered remarkably broad support and essentially zero critical pushback. This Article seeks to disrupt the emerging consensus by identifying a number of lurking tensions and ambiguities in the theory of information fiduciaries, as well as a number of reasons to doubt the theory's capacity to resolve them satisfactorily. Although we agree with Balkin that the harms stemming from dominant online platforms call for legal intervention, we question whether the concept of information fiduciaries is an adequate or apt response to the problems of information insecurity that he stresses, much less to more fundamental problems associated with outsized market share and business models built on pervasive surveillance. We also call attention to the potential costs of adopting an information-fiduciary framework--a framework that, we fear, invites an enervating complacency toward online platforms' structural power and a premature abandonment of more robust visions of public regulation., CONTENTS INTRODUCTION I. FIDUCIARIES FOR WHOM? II. FIDUCIARIES IN WHAT SENSE? A. Managing Divided Loyalties B. Online Behavioral Advertising and the Implausibility of Putting Users First C. Constructed Vulnerability D. [...]

Election disclosure laws are traditionally used to combat corruption in the political process. (1) These laws typically require candidates, parties, or political committees to disclose 'the identity of contributors and [...]

It is a truth universally acknowledged that '[t]he organizing principle of the American law of donative transfers is freedom of disposition.' (1) That is, '[p]roperty owners have the nearly unrestricted [...]

Judge Robert Bork had offered his assessment of privacy's constitutional status in scholarly tomes and congressional testimony, (1) but in the fall of 1987, the only theory of privacy that [...]

Across the country, from New Jersey to Texas to California, bail reform is being debated, implemented, and litigated at the state and local levels. Lawmakers and the public are learning [...]

A telecommunications company hires a law firm to help it calibrate its bid for an FCC license. To provide full legal advice, the firm learns confidential information about the company's [...]

INTRODUCTION I. THE RISE OF GUBERNATORIAL ADMINISTRATION A. The Founding: Weak Governors, Strong Presidents B. Jacksonian Populism C. The Progressive Era and Beyond: Consolidation and Entrepreneurs II. MODERN GUBERNATORIAL ADMINISTRATION [...]

FINANCIAL REGULATION--DODD-FRANK ACT--FSOC DETER MINES GENERAL ELECTRIC SUBSIDIARY NO LONGER A SYSTEMICALLY IMPORTANT FINANCIAL INSTITUTION--FINANCIAL STABILITY OVERSIGHT COUNCIL, BASIS FOR THE FINANCIAL STABILITY OVERSIGHT COUNCIL'S RESCISSION OF ITS DETERMINATION REGARDING [...]

II. INTRA-AGENCY COORDINATION By conceiving of the agency as an information processor, this Part develops and applies the resulting insights about how agency heads engage in this coordination task and [...]

Compliance and noncompliance with international agreements have long puzzled scholars, producing a wide range of theories regarding what motivates state behavior and a corresponding array of institutional design principles meant [...]

Voluntary forfeiture of intellectual assets--often, exceptionally valuable assets--is surprisingly widespread in information technology markets. A simple economic rationale can account for these practices. By giving away access to core technologies, [...]

TABLE OF CONTENTS I. HAMDAN: HOW THEORY INFORMED PRACTICE A. Framing Effects B. The Passive Virtues C. Default Rules and the Veto II. HAMDAN: HOW PRACTICE REINED IN THEORY A. [...]