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We find that mortgage loans originated after the adoption of the inevitable disclosure doctrine (IDD; a mechanism discouraging loan officers' labor mobility) have a lower default probability, a higher loan modification rate, and a lower foreclosure rate. These effects are unaccompanied by any reduction in loan supply and contribute to more stable housing prices. Using the adoption of the Uniform Trade Secrets Act as an alternative identification generates consistent results. Overall, our findings suggest that restricting loan officers' labor mobility leads to better ex ante screening and ex post monitoring, improving the origination efficiency for U.S. residential mortgage loans. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court's 2023-2024 decision in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine, ending the practice of granting deference to federal agencies' interpretations of statutes. Topics include the implications of Loper Bright for intellectual property (IP) law, the impact on agency enforcement, and the evolution of Chevron deference, particularly in IP-related disputes involving agencies like the PTO and ITC.

The Purcell Principle--the doctrine that courts should refrain from changing election rules during the period of time close to an election--has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial relief in the upcoming election cycle; the provisions of federal law that would normally safeguard voting rights, govern redistricting, and supervise how a state can conduct its elections are paralyzed until after election day. Born and raised on the shadow docket, the Principle has been underdeveloped by the Supreme Court. The Court has provided little guidance as to what triggers the Principle or how it will be applied in future cases. And, in recent years, the doctrine has become increasingly powerful in shaping election law. With the 2024 elections quickly approaching, this Note seeks to shed light on Purcell. The goals of this Note are twofold. First, I suggest that courts and scholars have been thinking about Purcell incorrectly. I argue that Purcell cannot be justified on the grounds of preventing voter confusion--as the case law and scholarship have suggested--but instead is better explained by federalism. Under this conception, the Court's historic applications of the doctrine make more sense. Second, I provide a new framework for understanding what triggers Purcell. In deciding whether the Purcell Principle should be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state's administration of its elections. I provide four conditions for courts to consider in determining whether injunctive relief is disruptive. But these conditions can also provide insight to future litigants making decisions about where, when, and how to bring their election claims to avoid running into Purcell's snare. [ABSTRACT FROM AUTHOR]

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit legal gray areas. Police wield the state's coercive power under the color of law, enjoying immunities and legal protections unavailable to private individuals. Yet, simultaneously, they can invoke their identity as private individuals to circumvent constitutional constraints on their conduct. The resulting rupture of accountability frameworks is a significant design flaw that harms policed individuals and communities while undermining the institution of policing from within. Where these frameworks presume a clear divide between state and private action, officers instead navigate a liminal space, leveraging state-sanctioned power while exploiting doctrinal ambiguities to subvert legal constraints. The Article critically evaluates how the state action doctrine, designed to delineate state and private conduct, fails to account for this reality. So, too, does the qualified immunity doctrine, which often shields vigilante conduct that exceeds constitutional bounds. To address this pressing problem, the Article advocates for a radical reconceptualization of police authority and accountability. It proposes reinterpreting the state action doctrine to break down the dichotomy between state and private action. It suggests implementing comprehensive statutory regulations to constrain police identity shopping. Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself. [ABSTRACT FROM AUTHOR]

Contract negotiation is the phase before the conclusion of the main contract. Although contract performance consists in the fulfilment of obligation, and therefore mostly occurs after the conclusion of a contract, in practice, contract negotiators may provide instructions to perform before contract conclusion, particularly in the sectors of national defense, construction and consulting services. This paper examines the legal consequences of instructions to perform provided during negotiations and whether or not they lead to the conclusion of the main contract. According to the legal policy of protection of the weaker party that in law and economics is consistent with the cheapest cost avoider principle and the Gunderson decision in the USA, a conclusion is reached that if the stronger party imposes the instructions to perform on the weaker party, it should be accepted that the main contract is concluded, because the stronger party in these type of cases will mostly be the cheapest cost avoider and should take the risk of non-reliance or incomplete reliance. [ABSTRACT FROM AUTHOR]

Priority setting by independent regulatory agencies (IRAs) is an invisible, yet essential, component of regulatory law enforcement. The selection of which cases to enforce and which to disregard is vital given IRAs' finite resources, and due to the function of concretising open‐ended administrative norms. Clear enforcement priorities allow IRAs to focus on matters of genuine economic, societal, and doctrinal importance, solve complex socio‐economic problems and build credible, independent, and accountable authorities. However, as a blindspot of administrative discretion, to date neither a normative framework to assess IRAs' priority setting rules and practices nor a shared terminology to evaluate its different features has developed. This article fills this gap by developing a novel typology and normative framework to guide IRAs' priority setting, based on a historical, conceptual, and empirical study focusing on the case of independent competition authorities. It combines insights from top‐down analysis of administrative and criminal law enforcement with bottom‐up empirical research and engagement with IRAs using EU competition law enforcement as a case study. [ABSTRACT FROM AUTHOR]

Under the common banner of a search for a 'more rational' approach to choice of law, US conflict‐of‐laws scholars of the late 1950s and the 1960s produced an impressive array of new technical instruments for their discipline. This article situates their work in the broader contexts of innovations in the social‐ and behavioural sciences and in legal‐ and political theory of this period. On this contextual reading, the methodological clashes of the so‐called 'choice‐of‐law revolution' change in shape and become part of a much larger story – one with relevance also outside the discipline and beyond the United States. That story is about different degrees of faith in the capacities of technical instruments and practices, like legal doctrine, to manage and resolve conflict, by making disparate factors commensurable, and by affording outcomes that optimise all competing interests in play. By revisiting these mid‐century battles over conflicts methods in light of contemporaneous understandings of 'rationality' and 'legitimacy' in other fields, the article contributes to our understanding of the genealogy of post‐war choice of law, as well as of the history of these ideals – and their technical means – in modern legal thought. [ABSTRACT FROM AUTHOR]

Historically, the cy‐près doctrine required that, upon the substantive alteration of a charitable trust, the new purposes should be 'as near as possible' to the old. This is no longer the case. Subject to section 67(3) of the Charities Act 2011, the redrafting court or Charity Commission must have regard to factors other than proximity of purpose. Zedra Fiduciary Services (UK) Ltd v Attorney General is the first high‐level authority to consider the meaning of the statute, and, with it, the scope of the contemporary statutory cy‐près doctrine. This note argues that the Court of Appeal read down the statutory factors conservatively, prioritising fidelity to the original objects of the trust. The note considers the method of the Court and suggests that a more creative approach might have been taken. Finally, the note considers the impact of the authority on the Charity Commission's routine, day‐to‐day cy‐près casework. [ABSTRACT FROM AUTHOR]

In the countries where we have the construction of the legal system with the new laws, the ambiguity of the legal norms in the new laws in some cases is almost inevitable. But commenting on laws and judicial practice will be of great help to bring about the implementation of all legal norms as was the intention of the legislator, because the correct interpretation of legal provisions is a necessity of any legal order that creates a legal security for all citizens equally. Of course, the object of legal interpretation or clarification is not only written legal-civil norms, but also those that are part of customary law. The issue of interpretation of laws currently represents a fundamental concern for citizens and legal institutions, looking for a smart and innovative approach to address this issue effectively and sustainably. In this context, this paper aims to identify and analyze the advantages and challenges of legal doctrine and interpretation in the contemporary context. [ABSTRACT FROM AUTHOR]

The President sometimes delegates important constitutional and statutory powers to use force or conduct other national security operations. Although these delegations are understudied, there may be reason for concern. Sometimes the President’s national security subdelegations have been unfaithful to Congress’s strictures. Sometimes the delegations are high stakes, as where President Eisenhower delegated to seven military officials the authority to launch nuclear weapons. Presidents sometimes even resist seemingly reasonable statutory limits on the power to delegate decisions that could lead the United States into armed conflict. National security delegations can be costly. They may diffuse political accountability for high-stakes decisions. The agent may fail to act in a way that reflects the principal’s intent. Inferior officials are generally less sensitive to the full scope of foreign policy concerns that may operate at a given moment. And delegations of war-related decisions to actors below the Secretary of Defense shift control of war from civilian officials to military ones. Classified national security delegations—and congressional efforts to regulate those delegations—raise difficult legal questions, including the extent to which Congress may restrict or require reporting about them. Yet the pressure on the President to delegate authorities to respond to “hyperwar,” and the coming autonomy revolution in which the President may delegate decision making to artificial intelligence systems, will keep delegation questions at the fore. This Article analyzes the legal doctrine and historical practice surrounding presidential national security delegations, the costs and benefits of such delegations, and Congress’s powers to constrain delegations and subdelegations. After identifying gaps in congressional and even presidential awareness of the full range of existing delegations, it proposes ways in which Congress and the President herself can more consistently surface and structure those delegations. [ABSTRACT FROM AUTHOR]

This Essay delves into an apparent paradox that surfaced during a symposium entitled “Section 1983 and Police Use of Force.” Two themes were prevalent: one advocating for reforms to legitimize America’s criminal legal system and another warning against legitimizing a broken system through such reforms. This duality underscored a “legitimacy paradox”: attempts to validate the criminal legal system may inadvertently deepen its illegitimacy. Reforms can entrench mass incarceration, disempower those most affected by injustices, and mask the system’s inherent flaws, collectively perpetuating inequality, injustice, and illegitimacy. While these themes are common in academic discussions on policing and prisons, they are less prevalent in federal jurisdiction and constitutional torts, where Section 1983 debates typically occur. Recent events, however, have bridged the gap between civil justice in federal courts and criminal legal reform. Section 1983 has emerged as a key tool for addressing illegal police violence and systemic constitutional issues within the criminal apparatus, making concepts like “qualified immunity” central to police reform discourse in the United States. Drawing inspiration from Professor Henry Hart’s work The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, the Essay presents a fictional conversation between two federal courts professors. This dialogue explores the implications of abolitionism and “non-reformist reform” in a legal doctrinal context. The aim is not to provide definitive answers but to stimulate consideration of various perspectives. This approach underscores the complexity and interconnectedness of legal reforms, policing, and the pursuit of justice. [ABSTRACT FROM AUTHOR]

The mere fact of arrest can cause an immigrant to lose their status, their freedom, or even their life. Immigration judges and other agency employees regularly use information from the criminal legal system to justify a discretionary denial, even when all criminal charges have been dismissed, and even when an immigrant is able to provide compelling evidence of innocence. Allegations that were laid to rest in a criminal proceeding pop up again in an immigration proceeding like zombies. Also like zombies, they are effectively impossible to kill. Conventional wisdom among scholars and practitioners holds that there are few, if any, limits on how immigration adjudicators can use information from a criminal case in the exercise of their discretionary powers. This belief rests on the mistaken assumption that, when adjudicators use allegations from a criminal court document against an immigrant, they are merely importing facts already found by the criminal legal system—“balancing factors”—rather than engaging in fact finding of their own. This article identifies the problem of “hidden” factfinding in immigration decision-making and proposes a solution: a framework to govern the use of information from a criminal case in the immigration system and beyond. The framework, which classifies information according to the standard to which it has been adjudicated, would transform discretionary immigration decision-making and open up new avenues for judicial review. The possibility of meaningful review is especially important for bond determinations where immigrants are regularly stripped of their liberty based on mere allegations. The framework also reveals the hidden logic behind immigration’s “categorical” approach for analyzing criminal convictions and shows why recent efforts to erode it are misguided. This piece suggests that a simple evidentiary tweak can help bring discretionary immigration decision-making back in line with the “fundamental norms . . . that animate the rest of our legal system.” [ABSTRACT FROM AUTHOR]

As explicated by the Supreme Court in West Virginia v. EPA in 2022, and reaffirmed in Biden v. Nebraska in 2023, the “major questions doctrine” provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This Article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Court has given for enforcing the doctrine do not withstand scrutiny, even on their own terms. In West Virginia and Nebraska, the Court relied heavily on its prior precedents. But this Article’s review of the history of the doctrine highlights the Court’s repeated use of overstatements of the holdings in these prior cases as a substitute for giving reasons to justify the doctrine’s expanding scope. The majority and concurring opinions in West Virginia and the concurring opinion in Nebraska offered some normative arguments on behalf of the doctrine, but this Article takes issue with them. For example, the doctrine’s supposed foundations in the nondelegation doctrine and other separation of powers principles are unsatisfactory, because they do not supply a credible basis for distinguishing major rules from non-major rules. Moreover, the major questions doctrine appears to make overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself Thus, the Court has not provided an adequate justification for the major questions doctrine, which threatens not only to weaken administrative governance, but also to politicize the Court’s decision-making in cases involving major questions (a regrettably ill-defined term). Although the Court may be unlikely to abandon the doctrine entirely, this Article’s analysis suggests that the Court should apply it restrictively rather than expansively. [ABSTRACT FROM AUTHOR]

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and Brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion. This Essay’s new insight is that Robinson contains what it calls a “dicta mine.” A dicta mine is (1) an unnecessary statement that (2) a Court silently recharacterizes as having already resolved an issue, (3) exploding it into a significant doctrine. The Robinson dicta mine claims, without support, that “it is of no moment that [officer] Jenks did not indicate any subjective fear of the Respondent or that he did not himself suspect that the Respondent was armed.” Citing Robinson’s dicta mine, the 1978 Scott v. United States opinion takes Robinson’s aside and explodes it into a general principle that courts may not review officers’ subjective motivations. The 1989 Graham opinion then cites Scott, at the place where it cites Robinson’s dicta mine, for the proposition the anti-subjectivity principle is required in excessive force doctrine. Finally, the 1996 Whren opinion argues that Robinson and Scott had already “foreclose[d]” the possibility that the Fourth Amendment could consider police racial bias to be unreasonable. This Essay’s principal contribution to criminal procedure literature is being the first publication to demonstrate how excessive force and pretext doctrines are illegitimate because they rest upon the shaky foundation of Robinson’s dicta mine. This Essay’s second contribution is its proposal that we should respond to the criminal procedure redemption—the systematic undoing of civil liberties, especially for racial minorities, that began in the early 1970s—by adopting a criminal procedure futurism perspective. The goals of this approach are to delegitimate antiegalitarian doctrines in the present and create doctrinal principles for a second criminal procedure revolution in the future. To prepare for the future, law professors should discontinue teaching Robinson as a stand-alone search incident to arrest case. Instead, we should connect it to the excessive force and pretext doctrines as part of showing students how to read opinions with a critical eye. [ABSTRACT FROM AUTHOR]

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right to higher education. Doing so would finally tell us about the nature of this social good as well as the scope of judicially enforced access to it. Third, they could have showed consistent respect for universities and colleges as distinctive communities by embracing their collective right to self-expression. Instead of taking any of these roads, the Supreme Court has used the Equal Protection Clause to protect something of uncertain social worth and deepened suspicion of educational institutions. Ultimately, how long this current quandary will remain--aggressive judicial supervision of university admissions and an impoverished conception of higher education as a social good--will depend on whether judges tire of the status quo and the rest of us perceive the real stakes and demand something better. [ABSTRACT FROM AUTHOR]

Having examined the police powers doctrine and clarified expropriation clauses, this study concludes that neither of the two instruments can draw the line between non-compensable regulation and regulatory expropriation in a predictable and consistent manner. The outcome of expropriation cases depends significantly on tribunals' discretion and their ex post interpretation of State actions. In this paradigm, investors and States cannot assess their risks at the time of investment or regulation. Every decision to invest or to regulate becomes a gamble. There is a need for more objective and clear rules to distinguish expropriation and regulation in international investment law. [ABSTRACT FROM AUTHOR]

The article focuses on the Fourth Circuit's ruling in Kiviti v. Bhatt regarding the application of Article III mootness doctrine to bankruptcy proceedings. It discusses the court's reasoning that bankruptcy courts, not being Article III courts, have the statutory authority to adjudicate cases that would be moot under Article III. It also critiques the decision for potentially allowing Congress to circumvent Article III requirements.

Crime victims are directly harmed by crime and therefore have a stake in, and should be treated as individual participants in the criminal justice process. In recognition of this, Congress passed the Crime Victims' Rights Act ("CVRA") in 2004 to enumerate specific rights afforded to crime victims, including the rights to confer with the prosecutor in the case, to be heard at public court proceedings involving a plea or sentencing, to be informed in a timely manner of a plea bargain or deferred prosecution agreement, and to be treated with fairness and respect. Whether the CVRA extends these rights to victims prior to the formal filing of charges is unclear, but since a great deal of criminal cases never lead to charges being filed, many victims are not protected if these rights are not afforded to them during the investigation stage. The consequences of this ambiguity are exemplified by the now infamous 2007 secret non-prosecution agreement ("NPA") between Jeffrey Epstein and the United States Attorney's Office for the Southern District of Florida ("USAO,") in which the USAO agreed to forego federal prosecution of Epstein for sexually abusing more than thirty minor girls in exchange for Epstein pleading guilty to two minor state charges. The existence of the NPA was kept secret from Epstein's victims for over a year after it was signed. Although the victims subsequently commenced litigation seeking rescission of the NPA on the grounds that the USAO violated their CVRA rights when it concealed the agreement, they were denied the relief they sought. The Eleventh Circuit Court of Appeals ultimately held that since the government never filed federal charges, the victims did not have standing to sue. Accordingly, the secret NPA deprived Epstein's victims of their CVRA rights and of the opportunity see Epstein held accountable for his criminal conduct. This Note applies the contract doctrine of unconscionability to NPAs entered into in the absence of victim notification and consultation. It argues that principles of unconscionability are inherent in secret NPAs, and thus such agreements should be deemed unenforceable and subject to rescission. To this end, Congress must amend the CVRA to strengthen protections for crime victims and make clear that those protections attach prior to the filing of formal charges. Doing so would ensure that the disgraceful outcome of the Epstein case is not repeated. [ABSTRACT FROM AUTHOR]

Federal courts take criminal law seriously. Indeed, a particular solicitude for the criminal process undergirds several legal doctrines. These doctrines generally require courts to distinguish between civil and criminal law. Despite this requirement, the line between civil and criminal law is often blurry. That is especially true in administrative law, as administrative agencies frequently take punitive enforcement actions against private parties. And in the civil context, courts have long applied seemingly special criminal law doctrinal carveouts and constitutional protections. This Article takes account of the convergence of civil and criminal law. The application of criminal law doctrines in civil cases has often been about procedural protections. But the next frontier appears to be substantive review. Indeed, some even argue that substantive review doctrines that are usually framed as specific to criminal law--the void-for-vagueness doctrine and the rule of lenity, for example--have always been appropriate to apply in civil cases. Looking ahead, a shift in administrative law may be forthcoming. Much of the focus in administrative law right now is on doctrines like nondelegation and major questions, which arguably vindicate the separation of powers. But the civil-criminal convergence may introduce doctrines like void-for-vagueness and lenity into litigants' toolkits in agency cases. These doctrines focus more on individual liberty than on separation of powers, and raising them in regulatory litigation could shift the framing of key challenges to agency action. [ABSTRACT FROM AUTHOR]

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the "goliath" known as Chevron deference? For those who study the Court's interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new "clarity tax" on both Congress and administrative agencies. Having said this, others' grave worries about changes in Chevron are misplaced; the administrative state will not disappear even if Chevron does. This Article will urge readers to think more broadly than Chevron and consider larger trends of interpretive practice on the current Supreme Court. [ABSTRACT FROM AUTHOR]

The Administrative Procedure Act's standard-of-review provision instructs reviewing courts to "decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action," and to set aside agency action "not in accordance with law." How the APA's statutory text might fit with the concept that courts should "defer" to agency legal interpretations is the subject of significant debate. Moreover, the question is a conceptually and theoretically important one because deriving the APA's meaning requires understanding the shifting law of the 1940s Supreme Court. This Article will examine the APA's standard-of-review provision from the perspective of those who wrote it--by assessing the statute's antecedents, text, structure, and legislative history, along with the other steps that Congress took during the 1940s to establish a standard of review in related areas. [ABSTRACT FROM AUTHOR]

While Chinese law recognises that repeated confessions following an initial confession procured by illegal means should be excluded from trial, the legal doctrine by which China excludes such evidence differs significantly from other jurisdictions. China's approach to the exclusion of repeated confessions is premised on what this paper loosely terms a 'principle plus exceptions' model, in which a general exclusionary rule for repeated confessions is supplemented with a closed list of exceptions. A study of the 113 cases on China Judicial Documents Network highlights the difficulties in the operationalisation of the 'principle plus exceptions' model, with the result that the law on repeated confessions is inconsistently applied. In response, this paper proposes that China should adopt a flexible and open-ended case-specific analysis, whereby courts examine the admissibility of the repeated confession based on the circumstances of each case and various factors. In the end, this paper advocates for essential institutional reforms aimed at bolstering the judicial authority of the Chinese judiciary and facilitating the advancement of evidence law reform in China. [ABSTRACT FROM AUTHOR]

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Moore's Mechanical Choices is ripe with interesting ideas. Here I'll focus on a particularly intriguing one that intersects with some aspects of my own work. It's the suggestion that causalism should be amended in a way that doesn't require causation. At first, this suggestion may sound absurd: How can causalism survive without causation, of all things? But I think that Moore is actually right about the main suggestion. I don't think he's right for the right reasons, but he's still right about the main idea. So, the aim of this paper is to explain how causalism can survive without causation, and how it may not. [ABSTRACT FROM AUTHOR]

Pre-reflectively, many addicts seem either not responsible, or less responsible, for their addictive conduct, at least if they lack responsibility for their addiction. Moore believes roughly the following. Addicts lack responsibility, when they do, because addicts are unable to control their conduct. They are unable when certain modal conditions are satisfied. Moore offers different modal conditions in different places. This view can be contrasted with another – that addicts lack responsibility when they do because they act on desires that are not well integrated into their motivations. Moore doubts the significance of integration for responsibility. I argue that addicts lack responsibility when, and because, first, addictive craving is not integrated into personhood in a way that directly grounds responsibility; and second, addicts lack the ability to control their addictive conduct to the extent needed for (full) responsibility. I explain how and why modal accounts of self-control need to be refined beyond ways Moore suggests to appropriately test the ability to control oneself, whether or not they are fundamental in explaining responsibility. [ABSTRACT FROM AUTHOR]

An important virtue of Emotion and Virtue is its careful and sophisticated discussion of the central yet ill-understood virtue of courage. However, Sreenivasan's treatment of courage raises as many questions as it answers; several of these can be brought into sharper focus by comparison with the argument of Plato and Aristotle on the topic. [ABSTRACT FROM AUTHOR]

Michael S. Moore defends the ideas of free will and responsibility, especially in relation to criminal law, against several challenges from neuroscience. I agree with Moore that morality and the law presuppose a commonsense understanding of humans as rational agents, who make choices and act for reasons, and that to defend moral and legal responsibility, we must show that this commonsense understanding remains viable. Unlike Moore, however, I do not think that classical compatibilism, which is based on a conditional understanding of the ability to do otherwise, provides a sufficiently robust account of free will, even when it is amended as Moore suggests. I argue that free will and responsibility can be defended more robustly by observing that, at the level of agency, there can be alternative possibilities and mental causation in a stronger sense than recognized by classical compatibilism, even if physical determinism is true. Moore's arguments could thus be strengthened by embracing this compatibilist libertarian position. At the same time, I note that, although the idea of responsibility is robustly defensible, there are independent reasons for rejecting a retributivist approach to punishment. [ABSTRACT FROM AUTHOR]

Michael S. Moore is a whole-hearted retributivist. The triumph of Mechanical Choices is that Moore provides a thoroughly physicalist, reductionist-friendly, compatibilist account of the features that make persons deserving of blame and punishment. Many who embrace scientific accounts of psychology worry that from this perspective the grounds for desert disappear; but Moore argues that folk psychological accounts of responsibility—such as those found in the criminal law—are either vindicated or not implicated by science. Moore claims that criminal punishment can be justified by looking solely to moral desert, couched in folk terms. In this paper I argue that interpersonal blame and punishment and criminal blame and punishment hold people responsible in the same sense, and that directed moral blame in both forms aim to communicate something to the wrongdoer and generate a backward-looking or retributive good. However, contra Moore, I will argue that instrumental aims are also important to justifying methods and degree of punishment within both realms. [ABSTRACT FROM AUTHOR]

The necessity defense is barely accepted in contemporary Western case law. The courts, relying on the opinion held by the majority of legal scholars, have reduced its margin of application to practically zero, since in the framework of contemporary welfare states, there is almost always a "legal alternative." The needy person who acts on their own behalf, regardless of whether they save an interest higher than the one they injure, does not show due deference to democratic legal solutions and procedural channels. This article aims to contest this abrogative interpretation of the necessity defense and to outline the limits of its legitimate scope. Even in welfare states, there are actions in a necessity scenario that neither question the legal decisions of the democratically elected legislature nor make a mockery of established procedural channels. [ABSTRACT FROM AUTHOR]

To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability and is better understood as a theory of criminal wrongs. This challenge is important not least because it requires getting clearer about what wrongness and culpability are and what roles they play on a legal moralist picture of the criminal law. Here, I argue that Walen's objection is mistaken. Once we get clearer on what distinguishes wrongness and culpability, it becomes clear that my account is best seen as a theory of culpability. This is so even though it calculates degrees of culpability in a more objective way than other insufficient regard views. Besides just defending my account from Walen's objection, this paper aims to make a positive contribution by developing a more sophisticated version of the Manifestation Account I proposed earlier. To do this, I focus on the main area of criminal law doctrine where culpability comes apart from wrongness – namely, excuse cases. My earlier Manifestation Account is implausible – or at least limited – because it has nothing distinctive to say about how to determine the culpability of excused misconduct. Accordingly, the theory would be, if not outright false, at best incompatible with the orthodox view in criminal law theory, which takes excuses to accept wrongdoing but deny culpability. To solve this problem and enhance the Manifestation Account's explanatory value, I show how to extend the theory to account for the culpability of wrongs where a putatively excusing condition is in play. This not only fills a gap in the Manifestation Account but has the further benefit of providing a unified reasons-based account of the main categories of misconduct in the criminal law, which shows what separates criminal wrongness from culpability both in justification cases and excuse cases. The hope is that this effort will shed light on the distinct roles of wrongness and culpability in legal moralist theories of the criminal law and provide a better understanding of degrees of culpability for criminal wrongs – not only when justifications are at issue, but also when excuses are involved. [ABSTRACT FROM AUTHOR]

Acting as part of a corporation may allow an individual more easily to rationalize participating in a harmful act, but there are countervailing forces in corporate action that increase moral oversight and accountability. Making use of group agency to explain membership as a special feature of some corporate agents, I argue that when someone becomes a member of an organized group like a company, their own moral responsibility becomes entangled with the decisions of other members of the company, whether or not they intend this effect. This moral entanglement in corporate decision-making explains why individuals have a moral obligation to act in their role as a corporate officer when they would not have an obligation to act in a personal capacity even if they had identical knowledge. The entanglement affects the individual's own moral status and the moral status of the company itself. Moral entanglement of corporate decision-makers provides a principled explanation for a rule that is present in corporate criminal law that corporate officers with knowledge that another employee is about to commit a crime must actively intervene, and cannot rely on their status as bystanders. [ABSTRACT FROM AUTHOR]

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine in this way. Firms are not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee's reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. [ABSTRACT FROM AUTHOR]

This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill‐defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called 'limitations', and elements of a rule that exist separately from it, called 'exceptions'. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights. [ABSTRACT FROM AUTHOR]

The Supreme Court's decision in Whole Woman's Health v. Jackson seriously complicates judicial review of unconventional private enforcement schemes. Announced in December 2021, before the leak and eventual publication Of the Dobbs decision, *WH studiously declined to block the effectiveness of the Texas Heartbeat Act, S.B. 8, citing a reluctance to allow injunctive reliefagainst state courts andjudges. As a result, parties threatened with bounty-based private entbrcement akin to that in S.B. 8 will struggle to secure an efective federal test of the constitutionality of state restrictions. The WNVH framework encourages more states, both red and blue, to use unconventional private enforcement regimes to limit pre-enforcement review. Legal scholarship on unconventional regimes like S.B. 8 has yet to consider the writ of prohibition as a vehicle, for judicial review. This Essay puts the *WH decision into conversation with the forms of injerior-court supervision available through the common law writ of prohibition. Prohibition empowers superior courts to block lower courts from exercising authority over matters outside their jurisdiction. Among its other features, prohibition operates directly on lower courts and their judges, threatening them with the injunctive relief that WWH deemed improper in an Ex parte Young action. Prohibition thus offers one answer to the.judicial-power concerns that derailed the *WH litigation and a jbundation for a broader vision of federal judicial oversight of unconventional enforcement schemes. [ABSTRACT FROM AUTHOR]

The Supreme Court 's 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states' sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe 's legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe 's vision of state immunity, apparently ending the Court 's longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm ojstate immunity law, analogous to the scientific upheavals that Thomas Kuhn examined in The Structure of Scientific Revolutions. It considers how the state immunity revolution came to an end, continuing threats to the Seminole Tribe paradigm posed by recent decisions like Torres v. Texas Department of Public Safety, and what the Court's continuing debates about state immunity can tell us about the doctrine of stare decisis and the stability of legal paradigms. The most important lesson is that stare decisis may be insullicient to maintain a legal paradigm 11'ithout acceptance of a precedent 's underlying rationale. The Article also examines the sorts of "normal science" puzzles that courts will have to grapple with, even ffSeminole Tribe 's paradigm proves enduring. [ABSTRACT FROM AUTHOR]

The article focuses on the history and significance of drag performances, highlighting their expressive and political nature, recent attempts to restrict them, and the protections provided by the First Amendment. It traces the origins of drag from its beginnings to its modern-day influence on popular culture, emphasizing its role in challenging social norms and building community among queer and transgender individuals.

The article focuses on the potential impact of altering the most-favored-nation doctrine in free exercise jurisprudence, particularly concerning public accommodations laws, as evidenced by recent developments in court cases like Yeshiva University v. YU Pride Alliance. It explores the significance of equal value within this legal framework, demonstrating how its removal could undermine longstanding precedents and the broad coverage of antidiscrimination laws.

The article focuses on climate litigation, particularly the case of Held v. State in Montana, where youth plaintiffs challenged the state's environmental policies regarding climate change. It discusses how the court found in favor of the plaintiffs, ruling that the state had violated its constitutional environmental protections, marking a significant development in climate accountability litigation and demonstrating the potential of state constitutional rights in addressing climate impacts.

The article focuses on the historical development of procedural powers in federal courts, particularly in equity cases, examining the complex sources of authority and the persistent debates surrounding the legality of procedural supervision. It discusses the early statutory framework governing federal courts' procedural law, the evolution of procedural rules, and the distinct tradition of equity procedure, arguing that despite ongoing concerns.

The article focuses on the intersection of commercial speech and the First Amendment in the context of cybersecurity screening decisions, particularly in the Ninth Circuit. It discusses the implications of a recent case involving Enigma Software Group and Malwarebytes, where the court grappled with the verifiability of cybersecurity screening determinations under the Lanham Act, adding complexity to the liability assessments of cybersecurity companies.

The article focuses on the nonviolent nature of human rights adjudication, arguing that courts can succeed without coercion by inspiring voluntary compliance through moral conviction. It examines the limitations of human rights courts in enforcing their judgments, explores different scholarly perspectives on international law's effectiveness, and proposes the concept of adjudication as world building.

The article focuses on the prevalence of arbitration agreements in private sector and e-commerce transactions, often accompanied by waivers of class actions, leading to the suppression of claims. It proposes the use of the market participant doctrine by states and municipalities to circumvent preemption and limit forced arbitration, emphasizing its alignment with states' proprietary interests in ensuring safe and lawful service delivery.

The Restatement of Children and the Law, protects a child's relationship with a "de facto parent"--a person who has "established a bonded and dependent relationship with the child that is parental in nature." De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent. This Essay examines the Restatement's full-throated embrace of a de facto parent doctrine--an immensely important development--in the context of family law's evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement's approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. Indeed, the Restatement pushes well beyond the American Law Institute's earlier endorsement of a de facto parent doctrine--the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status. After situating the Restatement's approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents--from nonparent to parent--matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children's upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that "a parent consented to and fostered the formation of the parent-child relationship between the individual and the child." This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition. [ABSTRACT FROM AUTHOR]

The article focuses on examining the treatment of parental rights within the Restatement of Children and the Law, emphasizing its role as a doctrinal shield within family regulation systems. It explores how the Restatement reaffirms existing legal doctrine surrounding parental rights and underscores the importance of preserving the parent-child relationship, especially for marginalized families.

The article focuses on establishing a coherent legal framework, termed the Child Wellbeing framework, within the domain of children and the law. It addresses skepticism regarding the coherence of this field and highlights the interconnectedness of various legal doctrines affecting children. It is reported that the framework, based on contemporary research on child development and social welfare benefits, aims to promote the wellbeing of children across different legal contexts.