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Disclosure
Full text linkThis chapter, to appear in the Oxford Handbook of Regulatory Contract Law, examines the law governing factual disclosures between contracting parties. Much of the scholarship addresses whether or when parties have a duty to disclose. Yet many disclosure rules, including the much-discussed nondisclosure defense, do not involve duties proper. In fact, those rules vary considerably in structure, function, and design.
Contract disclosure rules fall into two broad categories: disclosure duties, which treat the failure to disclose as a legal wrong, and disclosure responsibilities (what German jurists call “Obliegenheiten”), which attach positive legal consequences to disclosure but do not treat nondisclosure as a violation. Disclosure duties can be further categorized. Specified disclosure duties, which typically apply to consumer and other mass-market transactions, provide detailed guidance regarding both what information to disclose and how to disclose it. Generic disclosure duties, such as the tort of nondisclosure, provide intead broad standards for what gets disclosed, though they importantly often come with strong scienter requirements. Disclosure responsibilities also come in different varieties. Some affect the terms of a contract. The foreseeability (Hadley) rule, for example, provides that a party’s disclosure at the time of formation of probable unusually high losses from breach alters whether they can recover for such losses. Other disclosure responsibilities affect whether the contract is voidable or not. The nondisclosure defense falls into this category.
The chapter discusses each variety of disclosure rules. It argues that different types of rules serve very different functions and are for this reason subject to differing design constraints. Perhaps the most radical claim is that the nondisclosure defense is best understood not as an independent defense, but as an important equitable consideration in mistake cases
Religious Freedom, Jesuit Mission, and DEI
Full text linkThe ability of Jesuit educational institutions to pursue a central part of their mission – that of fostering diverse, equitable and inclusive educational environments – is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work of Alexis de Tocqueville, Democracy in America, this essay highlights the important role that Jesuit universities play in protecting liberty and democracy. Third, a Jesuit university’s control of its curriculum and admissions practices are protected by well-established First Amendment principles, including freedom of religion. In addition, the First Amendment principle of religious freedom also protects Jesuit universities’ ability to have race-conscious programs of student support that advance the Jesuit pedagogic mission. The final section of this essay describes some of the curricular and co-curricular innovations and programmatic offerings at Georgetown University Law Center to illustrate how a Jesuit Law School might advance the Jesuit mission of creating an inclusive environment that supports reflective practices and the free exchange of ideas across differences
Accountability for Lawyers and Lawyer-Bashers: Reflections on Wendel\u27s \u3ci\u3eCanceling Lawyers\u3c/i\u3e
Full text linkThis article is part of a symposium on W. Bradley Wendel’s Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret. I agree with Wendel’s two fundamental claims: first, and contrary to the reigning conception, lawyers can be held accountable for choosing to represent a particular client (assuming they have a choice), and therefore that they cannot use their professional role as a “magic shield or force field” (Wendel’s term) to deflect all criticism. Second, however, there is also an ethics of blaming, and critics who blame lawyers irresponsibly can themselves be blamed. One of Wendel’s examples is lawyers who chose to represent convicted sexual predator Harvey Weinstein, and this paper examines some complications in his analysis of the example. It next examines Wendel’s analysis of who has standing to hold lawyers to account – only those in the affected community, or the public at large? Wendel is undecided, but leans toward the former. I argue for the latter, with two caveats: first, that the ethics of blame includes a heavy responsibility of due diligence on the part of the blamer, and second, that the due diligence requirement becomes more onerous the wider the audience of the blame. (It is minimal if a blamer keeps their criticism to themself or confines it to a small circle of friends; it is maximal if the blamer plasters it all over social media.) The paper next takes up Wendel’s example of law students calling on their classmates to boycott law firms whose clients contribute to climate change. In its final section, it discusses Wendel’s defense of Big Law lawyers who filed non-frivolous lawsuits in the Trump campaign’s 2020 efforts to overturn the presidential election. He distinguishes them from the “outlandish” efforts of Sidney Powell, Lin Wood, and Rudolph Giuliani. I take a dimmer view of the Big Law efforts, arguing that all the lawsuits must be viewed holistically as an assault on democracy
\u3ci\u3eHester\u3c/i\u3e’s Dubious Roots and Legacy: Open Fields Doctrine Under Scrutiny
Full text linkFor over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings surrounding the home. Yet Justice Holmes’s ipse dixit in Hester v. United States and Chief Justice Taft’s apparent incorporation of curtilage as a substitute for the “home” in Olmstead v. United States planted a doctrine that took root with such ferocity that even the Court’s ostensible shift in Katz v. United States to protecting “people, not places” could not displace it. Despite the ancient doctrine of ad coelum, naked eye and not-so-naked eye doctrine took root. In an age where pole cameras, drones, aircraft, and satellite technologies make persistent monitoring of private property possible, an originalist understanding proves imperative to reclaiming protections against government overreach
Beyond the Ivy League: Stopping the Spread of Antisemitism on American Campuses: Hearing Before the H. Comm. on Educ. & the Workforce, 119th Cong., May 7, 2025 (Statement of David D. Cole)
Full text linkIn this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of Jewish or Israeli identity. But antisemitic speech is not necessarily discrimination. Individually targeted harassment can constitute discrimination. But where speech is not targeted at an individual, it constitutes discrimination only if it is so “severe, pervasive, and objectively offensive” that it denies students equal access to education. Those are very high bars. Most speech criticizing Israel or supporting the Palestinians at a campus protest will not meet either bar, and to that extent federal antidiscrimination law has nothing to say about it.
And even if student speech does constitute discrimination, the university is only responsible if it is “deliberately indifferent” to that discrimination. If it has a complaint procedure, considers, investigates, and adjudicates credible complaints, and imposes some sanction where it finds that the facts support the complaint and rise to the level of discrimination, it is not “deliberately indifferent.”
Thus, to determine whether a school has actually violated Title VI, it is not enough to accept complaints as true. It requires careful assessment of the facts, often in a hearing in which competing accounts can be considered and the truth can be ascertained. The hearings conducted by the House Committee on Education and the Workforce have not been a serious or even a good faith effort to ascertain facts and apply the legal standards. They have instead been more akin to the McCarthy era hearings of the House Committee on UnAmerican Activities. That approach does nothing to solve the problem, and risks chilling speech and interfering with academic freedom
What is \u3ci\u3eTrump\u3c/i\u3e Immunity?
Full text linkIn Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly imposed legal obligations? Or is it an immunity from being subjected to the jurisdiction of judicial tribunals in suits seeking to impose validly prescribed legal sanctions?
The implications of the Trump decision vary dramatically depending on the type of immunity the Court recognized. If the immunity is from the substantive operation of the law, then the impugned presidential conduct is not illegal. The President would be exempt not only from criminal prosecution but also from civil damages and even prospective relief. Subordinates carrying out the President’s orders within the scope of the immunity would similarly be exempt from these forms of relief. And, depending on the basis for finding the President’s conduct to be legal, the President’s conduct might not constitute “high crimes” or “Misdemeanors,” and accordingly the President would not be impeachable for performing or ordering such acts. If the immunity is merely from criminal sanctions, on the other hand, the impugned conduct might well be illegal, and, if it is, the President would be subject to noncriminal sanctions and her subordinates even to criminal sanctions.
The Court’s opinion leaves unclear the nature of the immunity the President enjoys. Justice Barrett’s concurring opinion, which she regarded as consistent with Chief Justice Roberts’s majority opinion on this point, appears to understand Trump immunity as an immunity from primary obligations. Chief Justice Roberts’s opinion analyzes separately the President’s immunity with respect to conduct for which the President’s authority is “conclusive and preclusive” and the President’s immunity with respect to conduct that may be regulated by Congress. An immunity for conduct that is within the President’s “conclusive and preclusive” authority would appear to be an immunity from the substantive operation of a congressionally imposed criminal prohibition. An immunity for presidential conduct that Congress has the power to regulate could be an immunity from criminal sanctions for violation of validly imposed obligations, but the Roberts opinion at times suggests that the President’s immunity with respect to conduct in this category is an immunity from the operation of generally applicable criminal prohibitions
Promoting Public Health \u3ci\u3eand\u3c/i\u3e Public Safety By Ending the Exclusion of Incarcerated Children from Access to Medicaid
Full text linkThis essay is a response to Professor Den Houter\u27s article entitled Children are Not Inmates in which she effectively calls eliminating the exclusion of indigent incarcerated children from Medicaid coverage pursuant to the Medicaid Inmate Exclusion Policy (MIEP). This essay affirms and builds upon Professor Den Houter\u27s recommendation. Part I of this response provides additional support for why ensuring system-involved youth receive timely, uninterrupted, high-quality behavioral health services is critical to improving both public health and public safety. Part II analyzes the benefits and risks attendant to excluding indigent incarcerated children from the MIEP. Part III proposes the implementation of additional guardrails to ensure that system-involved youth actually receive the services they need to develop into healthy adults
What Might Contract Theory Be?
Full text linkFew contract theories begin with so comprehensive a discussion of method as does Stephen Smith’s book, Contract Theory. In the first chapter, “What Is Contract Theory,” Smith describes an interpretive approach guided by four goals: fit with the existing law, internal coherence, moral attractiveness, and transparency to legal actors.
This chapter in Understanding Private Law: Essays in Honour of Stephen A. Smith, does a deep dive into Smith’s description and defense of those goals. Smith pictures the contract theorist as an observer standing outside legal practice, interpreting the law but not participating in it. That picture results in some gaps and tensions within Smith’s methodological argument. An understanding of the contract theorist as participant in the project of constructing a just, efficient, socially beneficial law of contracts better grounds an interpretive theory of contract law and suggests recasting the four goals Smith identifies. This is not so much a rejection of Smith’s approach as a suggested reorientation of his interpretive project
Patent Infringement in Time
Full text linkNo patent lasts forever. When intellectual property rights expire, a canonical principle states, all benefits of their ownership cease. But patents may cast a long shadow after they are gone, hindering the advent of immediate competition upon their expiration. The law acts unevenly in these circumstances, leading to questionable intellectual property and public health policies. Ordinarily competitors cannot make and use a patented invention until the patent\u27s term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken solely for uses reasonably related to Food and Drug Administration (FDA) approval efforts. Congress intended the safe harbor, the only practically operative exception to patent rights ever enacted, to promote immediate generic availability upon the conclusion of patent term.
Ordinarily competitors cannot make and use a patented invention until the patent’s term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken “solely for uses reasonably related” to Food and Drug Administration (FDA) approval efforts. Congress intended the safe harbor, the only practically operative exception to patent rights ever enacted, to promote immediate generic availability upon the conclusion of patent term.
Courts construe the safe harbor to exempt from infringement a wide range of activities. Current rulings allow manufacturers to use drugs or devices pa-tented by others for as many non-regulatory uses as they wish, for as long as they desire, and even if the FDA is never informed of them, so long as the court concludes that the infringing act bore a perceptible relation to the FDA approval process. So conceived, the safe harbor creates a paradox. It too often defers patent litigation and the public benefits that result from it, including judicial rulings that clarify patent boundaries and invalidate weak patents. Intended to promote the rapid approval and distribution of generic drugs, an expansive safe harbor instead promotes delay and uncertainty.
This Article calls for a reframing of the safe harbor, not as a windfall for generic manufacturers, but rather as a mechanism intended to promote public health. Analysis of the safe harbor provides additional insights into the temporal dimension of patent infringement. Agencies other than the FDA entertain regulatory aspirations but face patent conflicts. Extended lead times for product development also diminish the prospects for prompt market entry by competitors after patent expiry. Other specialized rules for pharmaceutical patent law that delay patent litigation should be reconsidered. Finally, this Article calls into question infringement suits brought by owners of expired patents
The New History Of Multi-Member Commissions At The Founding, 1789-1840
Full text linkThe executive removal power figures prominently on the Supreme Court’s current agenda. That agenda is beset, however, by a historical misunderstanding, when it comes to multi-member bodies, which too often are assumed to be modern creatures. This paper provides crucial new historical evidence showing that the Founders, indeed a who’s who list of Founders, approved and even sat on commissions in the Republic’s early years. In some cases, the Founders called these early commissions “independent,” deferred to their judgments as “final,” and demanded that the members be “impartial.” Given the vast discretion given these commissions, these characteristics are best described as “fiduciary” bodies. Presidents and Congresses, in the early Republic, endorsed such bodies precisely because Presidents and Congresses believed that, for some tasks requiring the national trust, political partisanship was a danger to the administration of the rule of law, and to the nation’s most urgent needs.
This paper speaks to questions about the power of removal that are likely to arise in the future about presidential control over administrative agencies. The removal literature has focused almost exclusively on single officers, not “groups” which raise different questions. Even conceding that the President has broad removal power over individual officers, how far does that removal power go when it comes to controlling multi-member agencies? May the President eliminate the bipartisan nature of commissions by removing all commissioners of an adverse political party? May the President eliminate multi-member agencies tout court by removing all their members? May the President denying them sufficient members to establish a quorum? The history offered in this Article suggests that Presidents created and respected multi-member agencies deemed to act “independently” or “impartially.” Presidents signed these multi-member entities into law, respected their structure, and executive officers deferred to them, including the finality of their decisions