UCLR Online

The common law is, among other things, a mode of legal development. In this mode, judges develop the law yet simultaneously act as if they were only discovering law that already existed. This sketch of the common law introduces contemporary readers to a way of thinking and talking about law that was once instinctive for judges. The common law as a mode of development may seem alien at certain points, yet its influence on the legal systems of the United States has been enormous, and it is critical background for understanding the grant of “the judicial power” in the U.S. Constitution.

Welcome to the Supreme Court’s emergency docket. Like the Twilight Zone, the emergency docket is “the middle ground between light and shadow,” and hence is the core of the so-called “shadow docket.” Commentators have criticized the Court’s shadow-docket interventions: Summary orders shirk the Court’s responsibility to resolve important legal issues in reasoned opinions informed by complete briefing and oral argument, are unwise because they risk premature decisionmaking before issues percolate in the lower courts, provide insufficient or confusing direction for lower courts, and undermine the Court’s legitimacy because of their “shadowy” deliberation. My big problem is that shadow-docket stays deeply (not just technically) undermine the rule of law and violently affect the lives of people like O.C.G. without sufficient legal justification.

In today’s competitive global economy, U.S. companies upholding strict labor and human rights standards increasingly face unfair competition from foreign firms that exploit forced labor. In this Essay, we argue that this exploitation is not just a grave human rights crisis but also a serious market distortion that disadvantages ethical businesses in the United States and elsewhere.
This Essay outlines a strategic approach to confront this unfairly uneven playing field. Beyond simply deploying the existing legal tools, we propose a unified federal enforcement strategy and smarter trade agreements with enforceable labor standards. We also propose affirmative incentives, including procurement preferences and legal safe harbors, for companies that invest in ethical sourcing. The final component to the integrated strategy we propose is greater investment in traceability technologies and public-private partnerships to identify and root out forced labor deep within supply chains. Ultimately, we outline a forward-looking blueprint to ensure fair and competitive markets for U.S. businesses, ones that reward integrity and drive a global race to the top in labor practices. Economic competitiveness and human dignity, we argue, must be pursued together, not treated as competing priorities.

The Constitution’s Double Jeopardy Clause allows successive criminal prosecutions for the same conduct so long as they are pursued by separate sovereigns (such as two different states). This Case Note examines Illinois law to argue that state statutes are a useful, though imperfect, means of addressing the dual sovereignty doctrine. It argues further that the details of statutory language are highly consequential to whether states can scale back dual sovereignty in practice.

This Case Note summarizes the primary holdings surrounding Ninestar Corp, focusing on the resulting predicament for the FLETF. By revealing more information to regulated firms about its Entity List determination procedures, the FLETF could force firms to seek administrative remedy before they could access the courts, thereby retaining greater control over UFLPA enforcement; yet, in doing so, it may enable firms to circumvent Entity List designation. This Case Note ultimately concludes that forced labor enforcement regime is best served by greater transparency in the Entity List designation process.

This Case Note offers some direction for handling competing interests in this developing body of law and other complex cases weighing intersecting constitutional rights against governmental interests. Parts I and II provide background information, describing the Sell test and the current state of constitutional and statutory religious protections. Part III critically analyzes how courts, including the Fifth Circuit, have considered religious objections in Sell determinations so far. Because such analysis remains underdeveloped in the courts, Part IV suggests frameworks for coherently integrating Free Exercise doctrine into Sell inquiries based on the “hybrid theory” of constitutional rights.

Search costs matter and are reflected in many areas of law. For example, most disclosure requirements economize on search costs. A homeowner who must disclose the presence of termites saves a potential buyer, and perhaps many such buyers, from spending money to search, or inspect, the property. Similarly, requirements to reveal expected miles per gallon, or risks posed by a drug, economize on search costs. But these examples point to simple strategies and costs that can be minimized or entirely avoided with some legal intervention. Law can do better and take account of more subtle things once sophisticated search strategies are understood. This Essay introduces such search strategies and their implications for law.

This Case Note argues that categorizing college athletes as employees would, under a faithful application of Title IX and the court’s reasoning in Johnson, take wage payments outside the purview of Title IX’s equal opportunity requirement for athletes. Instead, Title IX as applied to college employees would govern, along with the other relevant employment discrimination laws. Under these statutes, it would likely be permissible for colleges to pay athletes in revenue-generating sports more than those athletes in nonrevenue sports.

Antidemocratic forces rely on intimidation tactics to silence criticism and opposition. Today’s intimidation playbook follows a two-step pattern. We surface these tactics so their costs to public discourse and civic engagement can be fully understood. We show how the misappropriation of the concept of online abuse has parallels in other efforts at conceptual diversion that dampen democratic guarantees. Democracy’s survival requires creative solutions. Politicians and government workers must be able to operate free from intimidation. Journalists and researchers must be able to freely investigate governmental overreach and foreign malign influence campaigns that threaten the democratic process. Surfacing the two-step strategy is a critical start to combating it.

This Case Note starts by summarizing current federal law and existing litigation surrounding state legislation in the context of foreign campaign contributions. It then turns to the parallels between state and federal proposals and concludes with the potential avenues policymakers may use to avoid future constitutional challenges.

This Case Note explores the possibility that, in a world where TikTok is banned or heavily regulated, individual TikTok users could sue states under a Takings Clause theory. Any such cases would have to wrestle with two core questions (1) whether the account holders hold an actionable property interest in their accounts; and (2) if so, whether permanently and totally depriving users of access to their accounts constitutes a taking.

District courts should consider the value of percolation in a given case as part of their analysis in deciding whether to grant a § 1404(a) motion. The value of doing so is even more pronounced in cases with a clear pattern of repeat-player defendants moving for transfer for no apparent reason other than convenience—and perhaps a more amenable court. In such cases, district courts should directly weigh the benefits of percolation against those of judicial economy.