Self-Determination Beyond the Nation-State

The article examines the challenges faced by stateless national communities, specifically Palestinians and Kurds, in the context of the nation-state system and explores alternative frameworks for self-determination. It highlights the historical context of nationalism in the Middle East, detailing how the establishment of nation-states has marginalized these groups, leading to ongoing struggles for autonomy and recognition. The authors discuss emerging ideas such as a two-state confederation in Israel-Palestine and the concept of "democratic confederalism" advocated by Kurdish communities, which prioritize local governance and inclusivity over traditional state structures. These alternative models suggest potential pathways for addressing long-standing conflicts and reimagining political organization in a rapidly changing world

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.

Drug Dealing: Making Public Pharma Work

The U.S. market for prescription drugs is failing many Americans. Drug prices in the United States are nearly three times higher than in comparable countries, and evidence shows that patients regularly forego essential medicines because they cannot afford them. Additionally, shortages of important medicines are common. In partial response, California recently passed a law to enable public manufacture and distribution of medicines, starting with insulin, a drug needed by many diabetics in the state. Several other states, as well as the federal government, are considering similar action to drive down prices of older drugs and to help resolve shortages. Public production could yield important benefits, but there are legal obstacles to overcome at every step, from developing the product at the bench to getting it to the patient. This Article maps the primary legal and logistical issues facing public pharmaceutical programs-from intellectual property barriers and PBM-driven market manipulation to regulatory hurdles like FDA registration, ERISA preemption, and product liability. We also propose ways to overcome these obstacles. We focus especially on a troubling reality: even if states succeed in producing affordable, highquality public medicines, they may still struggle to get them to the millions of patients who need them. After all, private generic manufacturers already face major obstacles in breaking through distribution bottlenecks to deliver lower-cost options. But states have tools that private firms lack. Armed with legislative, regulatory, and contractual authority, states can encourage-or require-market intermediaries to carry public products, expanding access at scale. In doing so, they may also help dismantle the bottlenecks that constrain private generic competition more broadly

After Courts: Democratizing Statutory Law

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article extends our proposal to disempower courts exercising lawmaking authority—to include when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to, though not identical with, the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but the long term requires a fuller rethinking of our institutions of legal interpretation. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control

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

Administrative Law as a Choice of Business Strategy: Comparing the Industries Who Have Routinely Sued Their Regulators with the Industries Who Rarely Have

For some large and powerful industries, it has long been normal and even routine for businesses to sue their federal regulator. For other large and powerful industries, it has been rare for the last twenty-five to forty years or more. This variation is enormous yet almost entirely unknown to the literature on administrative law. This Article documents and analyzes this variation in one type of federal regulation: public health and safety. For every major federal health-and-safety regulator, I search dockets to identify every judicial challenge to the agency’s actions brought by the agency’s principal regulated industry—whether by individual companies therein or by trade associations—during the period from 2013 to 2021 and, for several of the agency-industry pairings, for additional time periods extending as far back as the 1980s and as recent as 2024. The pairings covered are the following: the Food Safety and Inspection Service at the U.S. Department of Agriculture and meat and poultry processors; the Food and Drug Administration and drugmakers; the National Highway Traffic Safety Administration and automakers; the Federal Aviation Administration and airlines; the Consumer Product Safety Commission and children’s product companies; the Nuclear Regulatory Commission and nuclear plant operators; the Occupational Safety and Health Administration and employers generally; the Mine Safety and Health Administration and coal mines; the Environmental Protection Agency and power companies; the Federal Motor Carrier Safety Administration and for-hire trucking companies; and the Centers for Medicare and Medicaid Services and hospitals and nursing homes. For each pairing, I use the data on judicial challenges as the starting point for a qualitative discussion of how big or small a role litigation plays in agency-industry interaction. I find that industry judicial challenges tend to be few and marginal when two conditions are met. The first condition is that companies in the industry have a thick relationship with the regulator—that is, each company knows the regulator will be making repeat decisions impacting its business into the indefinite future, so each company has a stake in winning the agency’s trust and goodwill. The second condition is that, with regard to the agency action at issue, industry economic interests are aligned with the mission of the regulator. This is especially the case for agency action that has the official purpose of protecting the health and safety of the industry’s own consumers, as opposed to protecting industry workers or victims of externalities of industry conduct. In protection of consumer health and safety, the industry and the regulator are more likely to view each other as on the “same team,†and industry tends to (1) see the regulator as a source of credible guarantees that help attract business, (2) fear the “bad look†with consumers that conflict with the regulator could cause, and (3) seek influence and leverage over the agency by less open and adversary means than litigation

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