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Transportation Law’s Congestion Problem
No full textTransportation law has a congestion problem: our federalist system of government allows federal and state actors to stymie innovative, locally driven projects that aim to reduce driving. This problem is illustrated in the decades-long legal battles over New York City’s plan to impose “congestion pricing” to toll drivers entering certain parts of Manhattan. Overcoming grandstanding elected officials, lawsuits resting on state and federal supremacy, and even a federal legislative override, congestion pricing was finally launched in January 2025. New Yorkers and suburbanites alike almost immediately started benefiting from cleaner air, faster commutes, safer roads, and increased economic activity and productivity—plus boatloads of money for transit improvements. Just six weeks later, however, the Trump administration Secretary of Transportation Sean Duffy announced he was unilaterally rescinding federal approval for the program, once again throwing it into legal limbo.
Through the lens of congestion pricing and its unique characteristics, this Essay illustrates the relatively limited power of local and regional authorities to advance innovative transportation initiatives through the federal and state permitting gauntlet. Part I relates the congestion-pricing backstory in New York City from its origins in the late nineteenth century, to federal and state officials’ unwelcome intervention at key points, to its approval last year. Part II covers the latest attempt to roll back congestion pricing and the pending case of Metropolitan Transportation Authority v. Duffy, a federal lawsuit filed against Secretary Duffy by the regional body that operates the New York City congestion pricing program. Part III argues that new legal approaches that safeguard local interests are necessary. It identifies several judicial and congressional measures that may afford local governments more latitude to plan and carry out their transportation priorities and that may offer innovative, decarbonizing projects a higher priority in permitting
Ethnonationalism by Algorithm
No full textIn the United States, artificial intelligence (“AI”) policy has become a critical arena for ethnonationalism—an ideology that defines national belonging through shared ancestry, culture, and language. Amid rapid demographic change and cultural anxiety, the second Trump Administration has harnessed federal AI governance to advance its broader agenda of dismantling diversity—most notably through Executive Order 14,179, “Removing Barriers to American Leadership in Artificial Intelligence” and related legal directives. By eliminating safeguards against algorithmic bias and recasting equity as an ideological threat to innovation, the policies facilitate exclusion under the guise of neutrality. These moves are not merely deregulatory; they represent a coordinated legal strategy to encode ethnonationalist priorities into the infrastructure of the future. By defaulting to dominant patterns, unregulated AI systems reproduce racial inequality and suppress cultural pluralism. This Article offers the first sustained legal analysis of how the Trump Administration’s AI agenda advances its broader ethnonationalist project. It also proposes an alternative: the Equitable AI in Government Act, a legislative framework to embed democratic values—fairness, pluralism, authenticity, and autonomy—into the acquisition and use of AI by federal agencies and contractors. While the Act does not address every harm posed by private-sector AI, public institutions are the right starting point: they bear a unique obligation to serve a diverse public and can shape AI norms. This Article reframes AI law as central to the legal architecture of a racially inclusive democracy
Buying Blind: Corruption Risk and the Erosion of Oversight in Federal AI Procurement
No full textThe United States is accelerating toward a corruption crisis of its own making. In its race to rapidly acquire artificial intelligence (AI), current policy risks undermining longstanding procurement integrity safeguards. This article examines how AI increases traditional corruption risks and introduces new vulnerabilities that current oversight mechanisms are ill-equipped to address.
Recent federal AI policies have accelerated adoption while simultaneously narrowing regulatory oversight, effectively leaving “regulation by contract” as the primary—and profoundly inadequate—mechanism for embedding safeguards. The consequence of these policies is that the government is “buying blind,” acquiring AI technologies without adequate transparency, audit rights, or testing requirements. These acquisition-phase deficiencies will translate directly into operational risks as AI deployment expands. How the government acquires AI today determines the procurement integrity vulnerabilities it will inherit tomorrow.
This article offers practical recommendations to address these emerging threats, prioritizing those most feasible to implement. It also challenges the assumption driving current federal AI policy: that governance impedes innovation. As the article demonstrates, governance is crucial for sustainable innovation. It helps maintain fair, transparent markets and fosters the institutional trust necessary for long-term AI integration.
The window for establishing effective governance is closing. As procurement dependencies solidify and integrity risks become entrenched, reversing course will become exponentially harder
Restorative Restitution
No full textHow to best meet the needs of crime victims while also furthering the imperative of decarceration has long vexed advocates and scholars alike. This dilemma comes into sharp focus when one examines two developments in criminal procedure that, until now, have been analyzed separately: victim restitution and restorative justice.
Criminal restitution, the monetary payments ordered from defendants to victims, often fails both groups. Because most defendants are indigent, restitution obligations lengthen defendants’ involvement with the criminal legal system without delivering meaningful compensation to victims, making restitution more symbolic than restorative. At the same time, interest in restorative justice has surged as part of a broader reckoning with the failures of the criminal legal system and search for non- retributive responses to crime. Yet, restorative justice remains underutilized post-conviction.
This Article interweaves these two strands, proposing restorative justice as a novel solution to the failures of criminal restitution. By situating the growing body of literature about criminal restitution alongside that on victims’ rights and restorative justice, it argues that restorative practices can reframe redress in ways that move beyond monetary compensation, while championing decarceration. While not a panacea for all failures of the criminal legal system, restorative justice theory offers a necessary reframing that provides a meaningful path towards the accountability, restoration, and decarceration that are lacking in the current restitution regime
To Predict the Post-Chevron World, You Must Understand the Pre-Chevron World and Then Add Extreme Political Polarity
Full text linkIn this contribution to a symposium on the Supreme Court’s opinion in Loper Bright Enterprises v. Raimondo, Professor Pierce explains how the Court has created a legal environment that will lead to many serious problems. He provides a roadmap to avoid that result
Police Officer Use of Force and Officer-created Jeopardy After Barnes V. Felix: The Supreme Court’s Important (Albeit Incomplete) Step in the Right Direction
No full textOn May 15, 2025, the Supreme Court issued a unanimous decision in Barnes v. Felix, rejecting the Fifth Circuit’s “moment of threat” doctrine, which limited courts assessing the reasonableness of a law enforcement officer’s use of force to considering only those facts and circumstances known to the officer at the moment of the threat. Under the Fifth Circuit’s narrow time-framing approach, any pre-seizure conduct of the officer, i.e., acts occurring before the officer seized the individual, that may have contributed to the dangerous situation could not be considered as part of the reasonableness inquiry.
Pre-seizure officer conduct that contributes to an officer’s need to use deadly force to protect himself has been called “officer created jeopardy” because such prior acts create or contribute to the situation of danger that put the officer’s life in jeopardy. Whether such conduct of the officer may be considered by the trier of fact was one of the critical questions underlying this case. Another critical question involved how broadly or narrowly to interpret the time frame.
Rejecting the Fifth Circuit’s narrow approach, the Court reaffirmed its longstanding rule that in assessing the reasonableness of an officer’s use of force under the Fourth Amendment, courts must consider the totality of the circumstances and clarified that the totality of the circumstances inquiry “has no time limit.” However, the Court did not answer the harder and arguably more important question that this case presented: whether pre-seizure “officer created jeopardy” conduct may be considered by the trier of fact. This paper argues that given the Supreme Court’s holding that the totality of the circumstances inquiry has no time limit, lower courts going forward should find that pre-seizure “officer created jeopardy” conduct is a factor in the totality of the circumstances that may be considered in assessing the reasonableness of the officer’s use of force
COMPENSATION UNDER THE MICROSCOPE: A Tale of Three States: the New Wrongful Conviction Compensation Statutes In Arizona, Delaware and Georgia
No full textIn 2025, three states passed new wrongful conviction compensation statutes: Arizona, Delaware, and Georgia. They are a diverse group. These states lie in the West, East and South. Delaware is led by a Democratic governor and legislature, while Georgia’s are Republican. Arizona has a Democratic governor, but both houses of the state legislature have Republican majorities. Delaware has just four exonerees listed in the National Registry of Exonerations. Arizona has 25 and Georgia 52. Before passing its statute, Georgia had the second most exonerees (behind Pennsylvania) in a state without a statute.
Given these varying backgrounds, one might expect substantial differences among the statutes. There are some differences, but the statutes more fundamentally reflect a fairly strong bipartisan view that wrongful conviction compensation statutes are necessary and advance important societal interests. They reflect the belief that there are wrongful convictions, that they harm exonerees in profound and incalculable ways, and that the wrongly convicted deserve compensation from the state to address that harm
Money, Money, Money: Universities, Government Funding, and Academic Freedom
No full textSince the federal government began its large-scale funding of research at the start of World War II, the United States and American universities have been in a mutually beneficial relationship. The federal government has reaped the benefits of countless scientific, social science, and technological discoveries that have promoted national security and served the general welfare. In return, American universities have developed extraordinary research enterprises that are regarded as among the best in the world.
From the outset of this relationship, however, scientists and university administrators expressed concern that federal funding would interfere with institutional autonomy and academic freedom. President Trump’s current attacks on higher education reveal that these concerns were well justified, albeit to a degree these early critics could have scarcely imagined. Assuming federal research funding will continue—and there is every reason to believe it will continue, even if diminished—it is likely that this funding will come with even more limitations and conditions that require universities to bend their missions and research priorities to secure this funding. Elite private universities are now facing, and will continue to face, some of the same kind of pressure public universities in red and purple states have faced for several years. As state universities well know, however, there is no easy resolution to the conflicts that arise when the government holds the purse strings
Reconstituting Corporate Power & Accountability
No full textModern society faces a growing crisis of corporate impunity. While corporations generate immense value, they increasingly inflict harm at scales that dwarf those of traditional street crime. Decades of deregulation, unchecked corporate lobbying, and a judiciary actively dismantling the administrative state have created a dangerous accountability vacuum. And just as federal oversight is collapsing, the Supreme Court\u27s expanding preemption doctrine is handcuffing state regulators. This Article proposes a paradigm shift: the revitalization of state criminal authority, a power largely shielded from federal interference. Upon securing a conviction or deferred prosecution agreement, states should mandate that the offending corporation conduct all future business within the state through a public benefit corporation. This innovative remedy moves beyond ineffective fines, leveraging the state\u27s authority over corporate charters to fundamentally restructure corporate incentives and align the pursuit of profit with the public good
Why Canada\u27s Terrorism Exception Does Not Violate International Law
No full textOn June 27, 2023, Iran sued Canada in the International Court of Justice (ICJ), alleging that the exception for state supporters of terrorism in Canada’s State Immunity Act violates customary international law. This article argues that Canada’s terrorism exception is consistent with customary international law. Although it is commonly assumed that state-supported terrorism is a sovereign activity and that a general and consistent practice of states accompanied byopinio juris\u3eis required to create an exception to state immunity, in fact, neither assumption is correct.
Under the restrictive theory of immunity, foreign states are generally immune from suit based on their sovereign activities but are not immune from suit based on their non-sovereign activities. Non-sovereign activities are not limited to commercial activities. They include any activity in which private persons can engage. Terrorism and support for terrorism fall within that definition.
Even if terrorism were considered a sovereign activity, it would not necessarily follow that foreign states are immune from suit based on such activity. This argument depends on the baseline for determining customary international law rules of sovereign immunity. A baseline of immunity presumes that foreign states are immune from suit and requires a general and consistent practice of states to create exceptions. A baseline of jurisdiction, by contrast, presumes that foreign states may be sued and requires a general and consistent practice of states to create immunity. Drawing on evidence from the transition from the absolute to the restrictive theory, this article argues that the proper baseline here is one of jurisdiction and that a general and consistent practice of granting immunity from suits based on terrorism and support for terrorism is required to establish a rule of immunity from such suits. No such practice exists with respect to terrorism