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Localizing Public Order
No full textPublic order offenses—public intoxication, sleeping outside, etc.—seem trivial, but they have enormous consequences for marginalized populations. These are the offenses that justify coercive police interactions, as well as entry into the procedural morass of the criminal legal system. Accordingly, these offenses have received extensive scholarly attention, with decades of research addressing their vagueness and their impact on urban communities of color. But no work has been done to survey how much of this conduct is criminalized and at what jurisdictional level—city or state. This Article picks up that task, undertaking a comprehensive analysis of the criminal codes of the fifty states and their fifty largest cities. This study reveals that on average only 37% of public order offenses are included in state codes, with localities adding an integral contribution of 40% more offenses. Since state and local offenses stack on top of each other with concurrent validity, the result is an average of 77% criminalization. It is only because of local public order criminalization, then, that this category of conduct is largely criminal. This pronounced localization is unique in criminal law, with state legislatures passively delegating a great degree of the punitive regulation of public spaces to city councils. Such an atypical institutional arrangement demands a normative assessment. Is this a justified delegation or merely a dereliction? Delegation could be justified out of respect for democratic self-determination, or to allow for policy experimentation. But the touchstone for democratic legitimacy is inclusion of those affected by law in determining its content, and city boundaries are poor proxies for determining who is affected by public order. Given epistemic uncertainty regarding affectedness claims and a binary choice between state or local regulation, democratic values suggest that we should err on the side of over-including, rather than excluding, from the political community—thus, opting for the state. Moreover, public order is not suitable for local experimentation, since it is largely rooted in issues of structural socioeconomic disadvantage, and therefore in need of centralized policy integration at a resource-rich institutional level (again, the state). In the absence of compelling arguments for delegation, localization should instead be theorized as a pathological dereliction: State legislatures seek to avoid accountability over this issue, which has proven to be intractable, by shunting it to city councils. The result is a fragmented and exclusionary approach to a problem that demands comprehensive and common engagement. State legislatures should rectify this by following the forgotten advice of the Model Penal Code’s drafters: “suppress” these offenses through field preemption
CVSG in Chabad v. Russian Federation: Another Question of Foreign State Immunity
No full textOn June 2, 2025, the Supreme Court called for the views of the Solicitor General (“CVSG”) in Chabad v. Russian Federation. In Chabad’s petition for certiorari, the question presented is whether the Foreign Sovereign Immunities Act (FSIA)’s expropriation exception applies to a foreign state if the expropriated property—or property exchanged for it— is located outside of the United States and is owned or operated by an agency or instrumentality of the foreign state that is engaged in commercial activity in the United States. The D.C. Circuit answered no. It held that for a foreign state itself (as opposed to an agency or instrumentality), the expropriation exception to immunity applies only if the expropriated property—or property exchanged for it—is located in the United States
Forget About FERPA: How FOIA Protects Student-Athlete Privacy in the NIL Era
Full text linkThe start of the name, image, and likeness (NIL) era stirred public fervor about the new earning potential of high-profile student-athletes. Since institutional policies and state laws governing NIL require student-athletes to broadly disclose information about their NIL activities to their respective institutions, the several state laws that follow the approach of the federal Freedom of Information Act (FOIA) can jeopardize the privacy of student-athlete NIL information. Major universities have repeatedly resorted to the unreliable defense of the Family Educational Rights and Privacy Act as well as sporadic state legislation to protect student-athlete privacy in the new NIL space. However, they have largely ignored the simpler solution embedded within their own state FOIA laws.
This Article argues that state FOIA laws bar student-athlete NIL information from public disclosure. FOIA laws serve the important societal function of informing the public about their government, but fundamental public misunderstandings about NIL based on a backwards misconception of the relationship between student-athletes and their institutions have caused the media to pry into details that are completely unrelated to any public interest. The recent shift toward student-athlete empowerment highlights the reality that studentathletes are autonomous actors, not simply children to be commandeered as an extension of coaches and other university personnel for public entertainment. The simplest way for universities to protect studentathletes in this new opportunity space is to reject FOIA requests for NIL information on the grounds that such requests propose an unwarranted invasion of personal privacy
The Prohibition of Annexations and the Foundations of Modern International Law
Full text linkThe international legal norm that prohibits forcible annexations of territory is foundational to modern international law. It lies at the core of three projects that have been central to the enterprise: (1) to settle title to territory as the basis for establishing state authority; (2) to regulate the use of force across settled borders; and (3) to provide for people within settled borders collectively to determine their own fates. Prohibiting forcible annexations is integral to each of these projects independently, and by tying them together, has had a transformative effect on the legal system as a whole. However, its significance is widely overlooked or misunderstood. Analysts have also largely failed to appreciate that it is now caught up in a broader contest over the future world order and at risk of erosion
DELAWARE SUPREME COURT EXAMINES INTERPLAY OF SCHNELL “INEQUITABLE PURPOSES” DOCTRINE AND BLASIUS “COMPELLING JUSTIFICATION” STANDARD IN ADDRESSING BOARD INTERFERENCE WITH STOCKHOLDER VOTE
Full text linkThe Financialization of Frequent Flyer Miles: Calling for Consumer Protection
Full text linkAirlines\u27 frequent flyer programs operate more like a monetary system, with points as a form of currency, than a typical discount or rewards plan. In fact, airlines\u27 power over points is even more extensive than that of a central bank over currency beyond simply determining how many points are in circulation, airlines also control the value of points at redemption, how many points consumers can accumulate, and when points expire. This financialized form of frequent flyer programs has proven to be lucrative. For the Big Four airlines, frequent flyer programs are worth markedly more than the business of providing air travel itself. Much of this profit stems from selling points to third parties, like banks, which use the promise of points to incentivize consumers\u27 credit card spending.
The very structure of frequent flyer programs presents a problem for consumer protection. The value of these programs relies on consumers\u27 belief in the value of points. At the same time, the value of these programs also depends on preventing consumers from efficiently redeeming their outstanding points, which would present an unsustainable cost for the airlines. In other words, the value of these programs stems from ensuring consumers belief that points are highly valuable, while limiting the points\u27 actual value. This market structure relies on keeping consumers in the dark.
Because the structure of frequent flyer programs depends on consumer deception, regulatory action is necessary. To that end, this Note analyzes the sometimes-overlapping regulatory mandates of the Federal Trade Commission, Department of Transportation, and Consumer Financial Protection Bureau. It then proposes that the agencies act to provide much-needed transparency in the market for frequent flyer points. These proposals aim to prevent the airline industry from subsidizing the provision of air travel with profit driven by consumer mistake and misrepresentation
The Minimalist Alternative to Abolitionism: Focusing on the Non-Dangerous Many
Full text linkIn The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics, published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous. This Essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the non-dangerous many. A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition
The Constitutional Right to Peremptory Challenges in Jury Selection
Full text linkThe peremptory challenge is one of the oldest and most well-established jury selection procedures. Its use dates back to the earliest days of English common law, and it was a firmly established and protected practice at the United States’ founding and into the early twentieth century. But while peremptory challenges are foundational, they remain perhaps the most controversial aspect of jury selection today. This is because they are regularly used by the government and private parties to advance racist, sexist, and bigoted ends. For this reason, over the last three decades, calls to abolish the practice have been regularly made by U.S. Supreme Court Justices and law students alike. And in 2022, Arizona became the first state in U.S. history to take that dramatic step—eliminating peremptory challenges in all cases.
This Article is the first to demonstrate that abolition of peremptory challenges is unconstitutional. Despite some contrary Supreme Court precedent, it contends that the early history, practice, and texts show that the Sixth Amendment secures to criminal defendants, particularly in capital cases, the right to participate in jury selection through peremptory challenges. Whether the Seventh Amendment secures an analogous right to civil litigants is less clear, though there is a strong argument that it should be so read. Crucially, constitutionalizing the right does not mean that peremptories may escape all regulation. The Fourteenth Amendment imposes limitations, and legislatures may make further appropriate restrictions. The Article concludes by reviewing paths for balancing the right to peremptory challenges with the need to eradicate systemic bias from jury selection
Societal implications of the Dobbs v Jackson Women\u27s Health Organization decision
Full text linkOn June 24, 2022, the US Supreme Court\u27s decision in Dobbs v Jackson Women\u27s Health Organization marked the removal of the constitutional right to abortion in the USA, introducing a complex ethical and legal landscape for patients and providers. This shift has had immediate health and equity repercussions, but it is also crucial to examine the broader impacts on states, health-care systems, and society as a whole. Restrictions on abortion access extend beyond immediate reproductive care concerns, necessitating a comprehensive understanding of the ruling\u27s consequences across micro and macro levels. To mitigate potential harm, it is imperative to establish a research agenda that informs policy making and ensures effective long-term monitoring and reporting, addressing both immediate and future impacts