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Full text linkPrivate law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its potential: statutory contracts.
Statutory contracts are spending statutes that promise to pay if a counterparty performs a specified action. Most tax credits, most farm subsidies, and even Medicare work this way. Because statutory contracts are structured like, and implicate, the same normative interests as other contracts, this Article argues that they should be interpreted according to principles of contract law. Contract law provides remedies for a subsequent government’s breach that public law cannot match. At the same time, not all statutory contracts should be enforceable, just as some executive branch contracts are held unenforceable when they constrain subsequent policy freedom.
Even if courts do not adopt the interpretive positions that this Article advances, the increased use of statutory contracting is reshaping the balance of fiscal power within Congress, between the branches, and between the government and its spending recipients. Statutory contracts shift power away from the appropriations committees, provide a central point of access for lobbyists, and reduce fiscal transparency by obligating the government to unknown sums. These factors make statutory contracts particularly susceptible to public choice concerns. And yet, statutory contracts are more procedurally attractive than existing forms of public-private governance where the executive strikes one-off deals with selected firms. Inherent in their nature as unilateral contract offers, statutory contracts are open to any willing counterparty who meets performance requirements. This Article suggests that statutory contracts could thus become the fiscal mechanism of a more open and performance-based industrial policy
Supreme Court Case Law on Arbitration through a Restatement Lens
No full textIn the United States, arbitration – international and interstate alike – is a federal law subject. However, the U.S. law governing international arbitration is based on a century-old statute, the Federal Arbitration Act (FAA), which has not been meaningfully amended since its enactment nearly 100 years ago, except for the addition of two chapters, implementing the New York and Panama Conventions on the recognition and enforcement of international arbitral awards. As such, it has not kept up with the profound changes that have taken place over this period, much less responded to the countless questions that make their way to the courts.
The U.S. law of international arbitration is thus the accretion of judicial decisions rendered over an exceptionally long period. The great bulk of the cases making their way to the courts concern three subjects: (a) enforcement of agreements to arbitrate, (b) involvement of U.S. courts in the conduct of arbitral proceedings, and (c) post-award actions either for the annulment or the enforcement of an arbitral award. It goes nearly without saying that the burden of developing international arbitration law falls chiefly to the federal district courts and the courts of appeal and that the resulting case law is less than systematic or comprehensive. Moreover, only an exceedingly small fraction of international arbitration cases ever make their way to the U.S. Supreme Court
Wealth Taxes Under the Constitution: An Originalist Analysis
No full textA federal wealth tax is high on the wish list of progressives, but is it constitutional? This Article shows that under the original public meaning of the Constitution, a wealth tax is a “direct tax” that must be apportioned. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states both have three percent of the population, each must provide three percent of the revenue. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share.
Article I requires apportionment only for a “direct tax,” not for “duties, imposts, and excises.” This Article emphasizes a pattern in taxes that do not have to be apportioned. They are levied on transactions: imposts apply to imports, and excises apply to domestic transactions. These taxes on transactions were exempted because they are hard to apportion. By contrast, a tax that is levied not on transactions — but on taxpayers themselves — is “direct,” and thus is subject to apportionment. In other words, the Framers considered a tax “direct” when it applies without a transaction. Under this definition, a wealth tax is direct because it is imposed directly on taxpayers, regardless of whether they are engaging in a transaction.
In proposing this definition of “direct” taxes, we reject the narrower interpretation, espoused by many judges and commentators over the years, that the only “direct” taxes are head and real estate taxes. At ratifying conventions, John Marshall and other Framers offered a broader definition that included taxes on personal property. Their view reflects the practice of states at the time, which taxed these assets.
To rescue wealth taxes from apportionment, many distinguished commentators have offered a range of theories. For example, some treat apportionment as a mistake, while others dismiss it as mainly a protection for the shameful institution of slavery.
But these commentators do not give the Framers enough credit. The taxing power was too important for them to be sloppy or to focus only on the institution of slavery. The Framers wanted to solve the fundamental problem under the Articles of Confederation (insufficient revenue) without recreating the fundamental problem under imperial rule (taxation without representation). Specifically, they sought to discourage what we call “fiscal raids,” in which states join forces to enact national taxes that mostly burden other states. As Professors Bruce Ackerman and Akhil Amar have shown, this risk could have arisen with an unapportioned tax on enslaved persons because it would have been collected mainly in the South. But we show that the same was true of other region-specific practices, such as the presence of tobacco plantations and undeveloped land in the South, as well as ships, timber, farms, and manufacturing in the North. Apportionment protected all these region-specific assets from federal fiscal raids. In short, apportionment was fundamental to the Framers’ vision of federalism.
Our interpretation is in some tension with the early case of Hylton v. United States, which upheld an unapportioned duty on carriages. A common interpretation of this holding — that the Court spared a type of wealth tax (i.e., on carriages) from apportionment — is inconsistent with our reading of the Direct Tax Clause. Yet there is another way to interpret Hylton’s holding, which aligns with our view: the Justices classified the carriage tax as indirect because they considered it a delayed sales tax, which was paid over a number of years. Admittedly, Hylton also has dicta that is inconsistent with our interpretation: the Justices said that the only direct taxes were head and real estate taxes. Notably, though, they hedged this view in various ways.
The holdings of subsequent cases align with our view, with only one exception: Pollock v. Farmers’ Loan & Trust Co. We agree with Pollock that there are direct taxes other than head and real estate taxes — a correction of the overly narrow dicta in Hylton. But unlike the Pollock Court, we do not classify an income tax on income from property as direct. Rather, we consider it indirect as long as it is a tax on transactions, such as wages, rent, and dividends, which are classic transactions by definition
Black English for Lawyers: A Primer
No full textLawyers do not know as much about Black English as they should, and people’s freedom hangs in the balance. Differences between language varieties in sounds and grammar can change and have changed the outcome of cases: “He at work” and “He be at work” mean two completely different things. To reduce misinterpretation and therefore wrongful outcomes, this Article provides a primer on the sounds, words, grammar, and social context of Black English targeted directly at legal practitioners. It begins by explaining key concepts in linguistics and making the case for why lawyers must foreground accurate description over normative prescription when facing nonstandard language.
The Article then systematically walks through the most important phonological (sounds), lexical (vocabulary), and grammatical features of Black English that are prone to misinterpretation, such as vowel mergers, consonant cluster reduction, habitual “be,” and quotatives like “talkin’ bout.” It explains terminology along the way. Learning requires repetition and exposure, and because the goal here is to teach lawyers rather than to do formal linguistic analysis, the Article provides numerous real-world examples from sources like Twitter, rap lyrics, and linguistics literature to illustrate usage and common points of confusion. The Article has a companion website that also allows learners to listen to authentic speech.
The Article also delves into some controversial social aspects of Black English. The law should recognize that there is a difference between calling someone “a REAL nigga” and “a real NIGGA” and understand which usages of “bitch” are more probative of misogynistic beliefs. The Article also considers the lawyer’s role.
Finally, but most importantly, while this discussion deals with specifics, it also shows a more general point about language: to merely summarily cite a dictionary or other general source (like this Article) for the meaning of an utterance is not to take language seriously. Language is mercurial and diverse, and discovering the plausible range of meanings requires more work than often imagined. But the law must — if it is to be just
Climate Litigation Report 2025 — Climate Change in the Courtroom: Trends, Impacts and Emerging Lessons
No full textThe Climate Litigation Report 2025 updates previous United Nations Environment Programme reports published in 2017, 2020, and 2023. It provides judges, lawyers, advocates, policy makers, researchers, environmental defenders (including child and women defenders), NGOs, businesses, and the international community with an essential resource to understand the current state of global climate litigation. The report includes descriptions of the key trends in climate litigation and the most important issues that courts have faced in the course of climate change cases
General Rulemaking Grants and the Federal Trade Commission
No full textThe legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC’s opponents, already adopted by a district court, could affect thousands of rules regulating matters from bank powers to air quality.
This Article carefully examines the challenge to the FTC’s general rulemaking power and rebuts it. Through meticulous reconstruction of the FTC’s history, it shows how judges and legislators transformed the FTC into a modern rulemaking agency in the 1970s and built an entire rulemaking apparatus into the FTC Act. It further shows that this is not a special case: Judges and legislators have long approached these provisions using ordinary principles of statutory interpretation. The current attack on their scope often employs the language of restraint. But it is narrowing the FTC’s power that would mark a radical departure from administrative law principles, upending over fifty years of settled understandings about the meaning of the word “rules” as employed by legislators across the U.S. Code
Purpose and Nonprofit Enterprise
No full textNonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success is all the more surprising.
This Essay offers a novel “purposeful enterprise” theory to explain the puzzling success of nonprofit enterprises. Drawing on research in behavioral economics and organizational science, it argues that organizational purpose can serve as a substitute for shareholder control and monitoring by mitigating managerial agency costs and aligning employee incentives. Nonprofit enterprise may also promote value creation by improving the stability of the entity. This theory clarifies why nonprofit businesses and other related purposeful enterprises have thrived in certain industries and not others. It also sheds light on fundamental debates in corporate law, including that of the corporation’s purpose in society. In particular, it suggests that shareholder ownership and control are not the only means of addressing agency costs and improving organizational efficiency
Existential Threats and Deterrence: Japan’s Legal Pathway to Enhanced Collective Security in Asia
Full text linkWith the Japanese Cabinet’s decision in December 2022 to comprehensively upgrade Japan’s security posture, and its rapid build-up of its defense capabilities, Japan’s role in Asia’s security architecture has been undergoing a fundamental shift. This article places Japan’s 2015 Peace and Security Legislation in the context of the U.N. collective security system and argues that its most significant achievement has been to expand Japan’s power to engage more proactively in the Asian collective security order. To date, commentators have focused on the legislation’s role in expanding the Japanese constitution’s limitations on the use of force to permit collective self-defense. This article argues that the legislation’s true significance lies in Japan’s strengthened deterrence capabilities resulting from an evolution away from its narrow focus on survival threats as a justification for permissible uses of force (a subject of constitutional interpretation), to broader legal justifications for the use of arms to counter lower order threats (a subject of legislative action). These enhanced capabilities have permitted Japan to undertake initiatives to build a new security architecture in Asia based on a significantly strengthened U.S. alliance and supplemental “minilateral” groupings. However, as deterrence activities grow, the line between “deterrence” and “survival” may start to blur, potentially taking the debates about permitted uses of force in new directions. The separate histories of the U.S. and Japan’s engagement with collective security suggest the directions in which these debates may lead
A Conversation About Stare Decisis
Full text linkJohn Q. Barrett (“JQB”)
Chief Judge Debra Ann Livingston, welcome back to St. John’s.
The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.
We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis. But first, we need to meet you and hear a little bit about your background — where you are from — and the path that took you to the law and to the bench
Trump EPA’s Proposed Revocation of Greenhouse Gas Endangerment Finding Raises Tangle of Legal Issues
Full text linkOn July 29, 2025, at an auto dealership in Indiana, Lee Zeldin, Administrator of the U.S. Environmental Protection Agency (EPA), announced a proposal to withdraw the Endangerment Finding for greenhouse gases (GHGs), which has been EPA’s legal basis for using the Clean Air Act to fight climate change. This action, which will surely be fought in court once it becomes final, raises a host of legal issues. This article discusses the legal basis for and significance of the Endangerment Finding; Zeldin’s principal arguments for revoking it, and challenges that will be raised to them; the range of possible outcomes in the likely event that this reaches the Supreme Court; and the implications of the various outcomes