The United States Supreme Court and Lower Court Compliance

Vol. 36:2How can courts achieve higher compliance from lower courts? I identify and examine 2,771 lower court treatments of a random sample of 110 Supreme Court cases, and find that lower courts are more likely to positively treat and less likely to negatively treat Supreme Court majority opinions that more thoroughly discuss cited legal authorities. These findings suggest that Supreme Court justices, when crafting opinions, have the ability to influence the degree of compliance by lower courts by dedicating more attention to discussing precedents cited in the majority opinions

Universal Injunctions on Appeal

Vol. 36:2In Trump v. CASA, the Supreme Court held that district courts do not have the authority to issue “universal” injunctions that protect nonparties. While the Court put an end to this controversial practice, it did not eliminate the need for interim relief when the executive branch engages in legally questionable action with broad impact. These concerns are especially acute in light of President Trump’s barrage of executive orders in the first few months of his second administration and the dozens of legal challenges that have been filed in response. Going forward, courts will need to grapple with whether and how to provide preliminary relief to thousands or millions of affected people while the legality of executive action is being litigated. Importantly, the Court’s holding did not affect the availability of several alternative forms of preliminary mass relief. District judges may still issue injunctions that incidentally protect nonparties, as long as the remedies are necessary to provide complete relief to named parties. The Court left open the possibility that organizations may use associational standing to seek injunctive relief on behalf of their members. Challengers raising similar factual and legal claims may file class actions, and courts may provide temporary injunctive relief prior to certification. The Court disclaimed that its holding would have any effect on universal remedies in cases challenging agency action under the Administrative Procedure Act. Finally, in some instances it may be infeasible for the government to provide different treatment to protected and unprotected parties, so even a limited injunction could effectively force the executive to temporarily suspend enforcement. Given these alternatives, it remains to be seen how much Trump v. CASA will limit the availability of mass relief, and also how it will affect some of the problems associated with universal injunctions. Litigants challenging federal policies often engaged in judge-shopping, filing petitions for universal injunctions in single-judge districts so that they could draw a sympathetic district judge. Because denials were only preclusive as to the specific petitioner, different litigants could also file petitions in multiple districts to enjoin the same policy, giving them “multiple bites at the apple.

Altering Rules: The New Frontier for Corporate Governance

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom. We argue, however, that the best approach lies neither in rigid mandatory rules nor unchecked contractual freedom—but in recognizing the potential of corporate law’s altering rules. Altering rules define how parties can opt out of the default rules of governance. Our theory identifies corporate altering rules’ essential features, namely, whose consent is required to change a default (process) and who is bound by that decision (scope). We show that the central role of altering rules in corporate law is not simply to make changing a default more or less difficult, as is widely supposed, but rather to combine process and scope in ways that define distinct bargaining environments, shaping how insiders negotiate over governance. Corporate law can fine-tune these features in ways that both encourage contractual innovation and manage intra-corporate risks. In response to recent cases and legislation, we propose new altering mechanisms that will broaden decision-making to include non-signatory shareholders, protecting them from harmful externalities. Altering rules, as they exist now, represent only a fraction of their potential. Rethinking their design opens the door to a vast, largely unexplored landscape of possibilities that could guide corporate governance in its new era of contractual innovation

Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It

With the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a categorical ban on abortion--a ban that Americans never enacted and, as the movement recognizes, would never embrace today. Claims on the Comstock Act have been asserted in ongoing challenges to the approval of the abortion pill mifepristone, in litigation before the Supreme Court, and in the 2024 campaign for the presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention. Revivalists read the Comstock statute as a plain-meaning, no-exceptions, nationwide abortion ban. In countering revivalist claims, this Article recovers a lost constitutional history of the statute that explains why its understanding of obscenity and of items prohibited as nonmailable has evolved so dramatically in the 150 years since the law was enacted. We show that the Comstock law was the first federal obscenity law to include writings and articles enabling contraception and abortion, condemning them along with erotica and sex toys as stimulants to illicit sex. At no point was this ban absolute. The law, by its terms and as enforced, policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian interpretation of obscenity--authorizing censors to prosecute advocates for free love and voluntary motherhood--protected the doctor-patient relationship. The public's repudiation of this expansive approach to obscenity as "Comstockery"--as encroaching on democracy, liberty, and equality-- led to the statute's declining enforcement and to cases in the 1930s narrowing obscenity and expanding access to sexual education, contraception, and abortion. These developments were not only statutory; they were constitutional. From conflicts over Comstock's enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation's history and traditions of sexual and reproductive freedom

Altering Rules: The New Frontier for Corporate Governance

Vol. 42:291Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom. We argue, however, that the best approach lies neither in rigid mandatory rules nor unchecked contractual freedom—but in recognizing the potential of corporate law’s altering rules. Altering rules define how parties can opt out of the default rules of governance. Our theory identifies corporate altering rules’ essential features, namely, whose consent is required to change a default (process) and who is bound by that decision (scope). We show that the central role of altering rules in corporate law is not simply to make changing a default more or less difficult, as is widely supposed, but rather to combine process and scope in ways that define distinct bargaining environments, shaping how insiders negotiate over governance. Corporate law can fine-tune these features in ways that both encourage contractual innovation and manage intra-corporate risks. In response to recent cases and legislation, we propose new altering mechanisms that will broaden decision-making to include non-signatory shareholders, protecting them from harmful externalities. Altering rules, as they exist now, represent only a fraction of their potential. Rethinking their design opens the door to a vast, largely unexplored landscape of possibilities that could guide corporate governance in its new era of contractual innovation

The Proper Role of Equality in Constitutional Adjudication: The Cathedral's Missing Buttress

The most difficult and divisive issue in American constitutional law is how to deal with fundamental rights that are not specifically protected in the Constitution. At times, courts have afforded such rights near-absolute protection against infringement. At other times, courts have declined to provide such rights any constitutional protection. Both approaches are misguided. Instead, as argued by Justices Antonin Scalia and Robert H. Jackson, and Professor John Hart Ely, laws infringing these rights should be invalidated if they burden only some in society while leaving the rights of the enacting majority unimpeded. This Feature begins by describing the two sorts of protections the Constitution affords to enumerated fundamental rights. Some rights are given full "libertarian" protection, with any infringement subject to close scrutiny. But others, such as the right to property, receive only "egalitarian" protection. Private property may be taken for public use so long as all of society is burdened by the requirement that compensation be provided. This Feature argues that the Constitution should be read to extend similar egalitarian protections to any number of unenumerated fundamental rights. Encumbrances on these rights run afoul of the Constitution's egalitarian guarantees if the burdens they impose are unequal. Protection of such rights is not available under the current reading of the Equal Protection Clause because violations of these rights are often not the result of discriminatory intent but rather the enacting majority's desire to achieve results it deems good without bearing their costs. This Feature seeks to return the Constitution's egalitarian guarantees to the purpose contemplated by the Framers. It argues that a law violates these egalitarian protections if a law infringes unequally and substantially the fundamental rights of individuals not positively affiliated with the majority. It outlines factors in evaluating proper judicial remedies for impermissibly unequal laws. And it provides the doctrinal constitutional bases for such judicial action

The Public Law of Public Utilities

Vol. 42:179This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that modern efforts to invoke Article III to restrict agency adjudication do not reflect a consistent understanding of the public-private distinction, but instead revive the distinction in some contexts (adjudication) but not others (rulemaking). Third, we provide a new framework for understanding the Supreme Court’s turn to structural arguments to check administrative agencies. On the last point: for nearly five decades prior to 1935, courts used rights-based arguments, not structural ones such as the nondelegation doctrine, to deduce the scope and content of the legislative, executive, and judicial powers. Once the Supreme Court abandoned its freedom-ofcontract jurisprudence, it was a public utility case that breathed new life into the nondelegation doctrine. Public utilities were a natural battle ground for reshaping the public law of administration. Like today, private rights, delegation, and agency adjudication were all central preoccupations of this public utility moment, but the frameworks courts advanced to answer these puzzles have vanished from our modern debate. Today’s administrative law thus reflects an ad hoc revival of public utility legal concepts, and it reinvents these concepts such that they bear little resemblance to their public utility genealogy

Understanding Supreme Court Decision-Making Through Justices’ Personal Conference Notes: An Update on the SCOTUSNOTES Project

Vol. 36:2Several years ago, the National Science Foundation funded our project to collect Supreme Court conference notes, examine them, and provide researchers with the images and transcriptions of those records. The work is time-consuming and resource-intensive but quite promising. In this short article, we explain the project and our efforts toward it. We undertake three specific tasks. First, we give an overview of the data, explaining whose conference notes we examine and what those notes capture. Second, we share some preliminary insights those data have revealed. Though we are in throes of cleaning the completed transcriptions, already the data have revealed several fascinating substantive insights, spurred novel questions, and cast telling shadows on older questions. Third, we discuss where we hope to go from here, exploring where we (and you) might take this treasure trove of data

Legal Realism and the Separation of Religion from Judicial Reasoning

Vol. 36:2Jerome Frank’s Law and the Modern Mind was caricatured for a generation as a reductive work of psychology, distilling law into “what the judge had for breakfast.” This article argues that Frank’s 1930 book needs to be understood as intervening in a theological dispute about the nature of law. In the United States, the prevailing understanding had been that law came from God and that legal rules were, at some level of abstraction, simply absolute or natural legal principles to which human beings had selective access. Judges, from this perspective, were mere instruments for divine truth. This conception of law supported a legal system that gave a privileged place to Christianity and was often hostile to religious minorities. Frank and the legal realists drew on the insights of Oliver Wendell Holmes. They were deeply invested in the idea that the law was a human creation and therefore changeable by humans. Rather than “a government of laws, not of men,” they argued for the inverse: human beings ultimately created and could adjust legal rules. Many of the realists were religious outsiders—Jews, liberal Protestants, and skeptics—who understood their theoretical interventions as undermining a coercive Protestant legal order. The article suggests that Frank’s efforts to separate U.S. law and religion were an admirable and necessary step in a pluralistic democracy. In the present, natural law theories as a legal foundation for U.S. law endanger the secular legal order and threaten religious minorities. Frank’s writings about the need for a law shorn of religious impulses, where judges know they are motivated by human factors, are valuable and offer a contrast to attempts to fuse law and Christianity. “Man, we would say, must no longer search for God in law, for law is not the place to seek religious satisfaction . . . We would urge that as men have learned to separate religion and science, leaving the latter to its own devices, they must learn not to let religion interfere with law; so far as the administration of justice is concerned, there must be a twilight of the gods.” Jerome Frank, Law and the Modern Mind (1930)

Law-Following AI: Designing AI Agents to Obey Human Laws

Artificial intelligence (AI) companies are working to develop a new type of actor: "AI agents," which we define as AI systems that can perform computer-based tasks as competently as human experts. Expert-level AI agents will likely create enormous economic value but also pose significant risks. Humans use computers to commit crimes, torts, and other violations of the law. As AI agents progress, therefore, they will be increasingly capable of performing actions that would be illegal if performed by humans. Such lawless AI agents could pose a severe risk to human life, liberty, and the rule of law. Designing public policy for AI agents is one of society's most important tasks. With this goal in mind, we argue for a simple claim: in high-stakes deployment settings, such as government, AI agents should be designed to rigorously comply with a broad set of legal requirements, such as core parts of constitutional and criminal law. In other words, AI agents should be loyal to their principals, but only within the bounds of the law: they should be designed to refuse to take illegal actions in the service of their principals. We call such AI agents "Law-Following AIs" (LFAI). The idea of encoding legal constraints into computer systems has a respectable provenance in legal scholarship. But much of the existing scholarship relies on outdated assumptions about the (in)ability of AI systems to reason about and comply with open-textured, natural-language laws. Thus, legal scholars have tended to imagine a process of "hard-coding" a small number of specific legal constraints into AI systems by translating legal texts into formal machine-readable computer code. Existing frontier AI systems, however, are already competent at reading, understanding, and reasoning about natural-language texts, including laws. This development opens new possibilities for their governance. Based on these technical developments, we propose aligning AI systems to a broad suite of existing laws as part of their assimilation into the human legal order. This would require directly imposing legal duties on AI agents. While this would be a significant change to legal ontology, it is both consonant with past evolutions (such as the invention of corporate personhood) and consistent with the emerging safety practices of several leading AI companies. This Article aims to catalyze a field of technical, legal, and policy research to develop the idea of law-following AI more fully. It also aims to flesh out LFAI's implementation so that our society can ensure that widespread adoption of AI agents does not pose an undue risk to human life, liberty, and the rule of law. Our account and defense of law-following AI is only a first step and leaves many important questions unanswered. But if the advent of AI agents is anywhere near as important as the AI industry supposes, then law-following AI may be one of the most neglected and urgent topics in law today, especially in light of increasing governmental adoption of AI