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The State of Voter Registration Research
No full textInaccurate voter registration lists increase barriers to participation, burden election officials, and fuel concerns about election integrity. While the scholarly literature on voter registration is outdated and insufficient, it still provides useful evidence about how to increase the number of citizens who are registered to vote at their current residence. Based on this literature, policies that shift the burden of initiating or updating voter registration from individuals to the government will likely be most effective. Most importantly, election officials should pursue ways to increase the number of individuals who initiate or update their voter registrations during transactions at their state’s motor vehicles agency. Other promising policies include automatically transferring voter registrations based on National Change of Address data, Election Day registration, and allowing 16- and 17-year-olds to pre-register to vote
(Un)Common Knowledge & Experience
No full textDebates about a “post-truth” society, the nature of expertise, and the malleability of facts that are unfolding in public spaces outside of legal institutions raise two related questions about the administration of justice. First, if knowledge and experience are politicized, what information is reasonably within a jury’s baseline, particularly in highly normative areas of law, such as antidiscrimination? And, second, if knowledge and experiential baselines are deficient, do current institutional mechanisms—education, media, political debate, law and legal procedures and rules—have ways of remedying or mitigating harm to litigants? Institutional devices—such as the regulation of jury pools, the use of expert testimony, judicial notice, and jury instructions— designed to mitigate biases and educate a jury to carry out its charge may fall short in the context of certain kinds of information, social norms, and experiences. This Essay attempts to wrestle with these epistemic questions and their consequences in a specific area of public information deficits: disability. In this area, I make a descriptive intervention and lay the groundwork for further normative and prescriptive work. I argue that we now have information to suggest that society’s common base of knowledge and experience about disability is so flawed that jurors may enter the courthouse ill-equipped to decide the substance of cases involving the rights and duties of people with disabilities. Furthermore, current structural devices—in particular, the use of expert witnesses designed to account for information deficits—may be insufficient because information about disability is highly normative and less technical than people imagine it to be. For example, answering a threshold question of whether a person has a “disability” under antidiscrimination laws draws on moral, political, and social views and yet, by practice, has become a question for seemingly objective medical expertise. The design of dispute resolution, the relatively short life of a trial, the defined role of the expert, and the presentation of expert evidence work better for the transfer of technical rather than adaptive knowledge because lay fact finders may react to the sociopolitical dimensions of information they view as less fact based or less objective. Disability may appear both foreign and familiar to lay people, thus walking a fine line between information and experiences they believe they have and those they believe require expertise beyond their capacity. The central argument proceeds in four parts. Part I contextualizes our evidentiary binary between common and specialized knowledge with a brief overview of its origins related to the jury. Part II then turns to the question of information deficits in jury decision-making in the context of disability. How do we know whether there is a problem with baseline norms? For one, Congress explicitly acknowledged the operation of outdated social norms of disability as a catalyst for the Americans with Disabilities Act. Additionally, empirical studies over the past three decades have reinforced the dangers of problematic disability norms to the conceptualization, exercise, and adjudication of rights. Part II offers another source of support for the existence of information deficits in the general population: a recent survey conducted by The Arc of the United States. Key findings further suggest that the public lacks certain information and experience with disability and disabled people. Part III explores the current institutional mechanisms for mitigating knowledge and experiential deficits about disability and raises questions about their remedial capacity. Information deficits are typically addressed in courts: for example, through expert evidence regulated by federal and state evidentiary rules and doctrinal standards such as those articulated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire v. Carmichael. Yet these legal rules and doctrinal standards themselves may impose barriers to the introduction of curative evidence. Part IV considers other informational touchpoints with prescriptive potential and concludes with special considerations and open questions for further development
Macroeconomics and the Tradition of Law and Economics
No full textThis article examines the emergence of Law and Macroeconomics (LawMacro) and its departure from the Law and Economics (LawEcon) tradition. It challenges the prevailing view that LawMacro’s innovation lies in introducing macroeconomic perspectives into legal discourse—something that has long existed. Instead, the article argues that LawMacro’s distinctiveness stems from its embrace of Keynesian economics, marking a significant ideological shift from the classical liberal foundations of LawEcon. The article attributes this change to a growing trend among younger, revisionist scholars who increasingly question LawEcon’s emphasis on market-based solutions and efficiency. It further contends that addressing macroeconomic issues does not necessarily require a Keynesian framework, emphasizing instead the value of a monetary constitution alongside stable legal frameworks, market coordination, and decentralized solutions, all in keeping with the LawEcon tradition
The Democratic Deficit of Living Originalism
No full textThis Essay examines Jack Balkin’s theory of living originalism, which argues that original constitutional meaning is “thin” while the construction zone—where judges fill gaps in constitutional meaning—is correspondingly “vast.” Within this zone, Balkin contends that judges should be permitted to employ virtually unconstrained modalities of construction, including considerations of consequences, national ethos, and modern history.
While Balkin justifies his theory based on concerns about democratic legitimacy, his framework paradoxically creates significant tension with democratic principles. By granting unelected judges nearly unlimited discretion in constitutional construction, his approach allows the judiciary to override democratically elected legislatures based on criteria that bear little relation to original constitutional meaning. This expansive judicial authority undermines the very democratic legitimacy that Balkin claims to champion.
This Essay proposes an alternative framework, identifying three ways that democratic considerations should constrain constitutional construction. It also presents some preliminary historical evidence from the Founding indicating that the Framers expected courts to take these sorts of considerations into account
Regulating Robo Advisors in an Age of Generative Artificial Intelligence
Full text linkNew generative Artificial Intelligence (AI) tools can increasingly engage in personalized, sustained and natural conversations with users. This technology has the capacity to reshape the financial services industry, making customized expert financial advice broadly available to consumers. However, AI’s ability to convincingly mimic human financial advisors also creates significant risks of large-scale financial misconduct. Which of these possibilities becomes reality will depend largely on the legal and regulatory rules governing “robo-advisors” that supply fully automated financial advice to consumers. This Article consequently critically examines this evolving regulatory landscape, arguing that current U.S. rules fail to adequately limit the risk that robo-advisors powered by generative AI will convince large numbers of consumers to purchase costly and inappropriate financial products and services. Drawing on general principles of consumer financial regulation and the EU’s recently enacted AI Act, the Article proposes addressing this deficiency through a dual regulatory approach: a licensing requirement for robo-advisors that use generative AI to help match consumers with financial products or services, and heightened ex post duties of care and loyalty for all robo-advisors. This framework seeks to appropriately balance the transformative potential of generative AI to deliver accessible financial advice with the risk that this emerging technology may significantly amplify the provision of conflicted or inaccurate advice
Corporate Purpose
No full textThis chapter examines the duality of corporate purpose. First, corporate purpose can be understood at the level of the individual corporation. Enabling corporate law allows for customization and corporate organizers can specify their choice of purpose. Second, by contrast, corporate purpose is viewed as a generalizable and monolithic concept across companies. It is an abstract debate at the heart of corporate law, which ramifies deeper issues such as the role of corporations in society and in whose interest they should be run. We explore these two sides of corporate purpose and argue that while each aspect of corporate purpose is a commonly understood way of thinking about the topic, they operate in tension with each other. The flexibility provided under law is effectively modified or constrained by the cultural, legal, and institutional environment that fiduciaries operate in, which has been and continues to be shaped by the great debate about corporate purpose
Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022
Full text linkHow does the push and pull between law and politics shape the work of executive branch lawyers charged with providing “neutral” interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Using a new dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC) in the Department of Justice (DOJ), I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions.
Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture.
These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC’s language use casts doubt on the prospect that high-ranking executive branch lawyers will act as “neutral expositors” when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms
Super-Dicta
Full text linkA weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it’s 50/50 whether Defendant’s copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought it was 50/50 whether the copying was fair use—and the coin landed tails.
Coin-flip cases are rare, but uncertainty is not. There are more sophisticated tools for responding rationally when the judge’s doubts about what she ought to do are not in complete equipoise. And so, the point remains: when a judge is uncertain about what she ought to do and is rational in pursuit of that aim, the actual reason for her decision and the ratio decidendi will diverge. And unlike much of the literature arguing we cannot take opinions at face value, the phenomenon I describe arises from anti-cynical premises: a judge who aims at what is right.
I call the judge’s actual reasoning “Super-Dicta.” Super-Dicta is so-called because it is super important: it is directly necessary to the decision—and not just causally, but as part of a judge’s rationale. But even though it is the decisive reasoning, it would appear to have the status of dicta: whether expressed, or not, Super-Dicta is not purely objective, limited to law or facts. It encompasses the judge’s subjective reasoning based on her uncertainty. That is, it is reasoning that resolves a case that is hard for the judge, not just hard.
Should Super-Dicta appear in an opinion? That normative question is probably moot, at least if understood as one of substantive jurisprudence. While a coin flip may be rational, disclosing it is not. Accordingly, a judge responding rationally to uncertainty will not disclose that in her opinion. And if she tries, the resulting legal standard would turn on an odd consideration: facts about the judge, namely, that she is uncertain and the extent of her doubts. The result: judicial opinions—at least those by mere mortals—can be transparent or objective, but not both. So-called “hard case” doctrines must be revisited in this light
Othering with Chinese Characteristics: Discrimination in Classical Chinese Thought and Modern-Day Repression of Uyghurs
Full text linkIn recent years, China has enacted repressive policies targeting the Uyghur ethnic group in Xinjiang, a region in the country’s northwest. This Article argues that such modern-day policies stem in part from the intellectual tradition of othering in classical Chinese thought. This Article presents a framework for understanding Chinese-style othering along three related dimensions—spatial othering, cultural othering, and ethnic othering. American policymakers seeking to persuade China to respect human rights in Xinjiang can benefit from understanding China’s intellectual tradition of othering and can use this knowledge to develop future policy options
Wires of War: Legal Reforms for Submarine Cable Security
No full textSubmarine cables form the backbone of global communications, carrying over 95% of international data traffic. Despite their critical importance, the international legal framework governing these undersea arteries remains outdated and inadequate to address modern security challenges. This article examines the evolution of submarine cable threats, from World War II-era physical sabotage to hybrid warfare tactics involving state and non-state actors in the twenty-first century. Recent events, including disruptions in Ukraine’s Black Sea region, Taiwan’s Matsu Islands, and the Baltic Sea, demonstrate the increasing sophistication of submarine cable attacks and their potential to destabilize global communications.
This article argues for a fundamental reconceptualization of the legal and policy frameworks governing submarine cable protection. The analysis begins by tracing the historical evolution of submarine cable warfare, highlighting its transformation into a key tool for hybrid conflict. It then identifies critical deficiencies in the current legal regime, particularly the 1884 Cable Convention and the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), which fail to address modern threats such as cyberattacks, attribution challenges, and enforcement gaps. Finally, the article proposes a comprehensive set of solutions, including the adoption of a new international treaty, enhanced regional cooperation frameworks, and innovative public-private partnerships. These measures aim to address the complex interplay between national security, commercial interests, and technological advancements, ensuring the resilience of this critical infrastructure.
Through its analysis, this article provides a roadmap for legal and policy reform to safeguard submarine cables against emerging threats. It emphasizes the urgent need for international cooperation and collective action to prevent the strategic exploitation of global communications networks. By bridging the gap between outdated legal frameworks and contemporary security realities, this article contributes to the ongoing discourse on the protection of critical infrastructure in an era of hybrid conflict