Print Archive

Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability. This Comment seeks to make sense of how this and similar potential challenges would fare. Using the San Francisco vacancy tax as a concrete example, this Comment evaluates possible arguments that the tax effects a regulatory or physical taking. It contends that even this stringent vacancy tax would not be a taking, and highlights elements of a different vacancy tax or regulation that may tip the scales of this analysis. It explores original understandings of land use (and nonuse) regulations to argue that fines levied on the nonproductive use of property are a background principle of property law that generally precludes the conclusion that vacancy taxes are takings.

This Comment reviews Section 230 jurisprudence to develop a novel taxonomy for claims against social media platforms. It divides claims against platforms into three categories—content specific, content dependent, and content agnostic—based on the proximity of the alleged injury to user-generated content and the degree of the platform’s participation. This Comment also formalizes a remedies test that courts can use to distinguish legitimate content-agnostic claims from those in name only. Armed with this vocabulary, this Comment turns its attention to a number of cases pending against social platforms. Applying the remedies test, it determines that a handful of pending allegations give rise to legitimate content-agnostic claims. Noting that content-agnostic injuries are material but not yet fully understood, this Comment ultimately argues that an ex ante regulatory regime operationalized by an expert agency is better suited to address social-platform externalities than an ex post liability regime.

AI inventions have taken the world by storm. Many of these inventions are protected by patents. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment asks which AI inventions ought to receive patents. It concludes that AI methods and models should be patent eligible because they are likely to be incentivized by patents and unlikely to chill follow-on innovation. This Comment further argues that both the USPTO’s guidance and much of the Federal Circuit’s recent eligibility case law are inconsistent with finding these inventions patent eligible. However, the Federal Circuit demonstrated an understanding of eligibility that would allow patents for many AI methods and models in its 2016 McRO, Inc. v. Bandai Namco Games America Inc. decision. This Comment concludes by advocating that the Federal Circuit explicitly apply the holding of this case to hold that an AI invention is patent eligible at the first opportunity.

A basic principle of virtually every regulation to improve grid reliability and reduce power sector emissions is that market participants change their behavior when regulations make it more expensive to engage in socially harmful activities. But this assumption does not apply to large parts of the electricity industry, where investor-owned utilities are often able to pass the costs of climate and reliability rules on to captive ratepayers. The underlying problem, I argue, is that the U.S. legal system outsources investment and market design decisions to private firms that will be financially harmed if state and federal regulators pursue deep decarbonization or take ambitious steps to improve grid reliability. Structural changes such as full corporate unbundling, market liberalization, and aggressive governance reforms are needed to make climate and reliability policies more effective and easier to administer.

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. This Article proposes a method built to resolve precisely such cases: interest balancing. Accepting that both branches might have power to act over a matter, interest balancing asks whether one branch’s exercise of power has infringed upon the other’s and, if so, whether such infringement is justified by a sufficiently strong interest. Despite the long history of interest balancing in individual rights cases, scholars have failed to appreciate its utility in resolving separation of powers disputes. This Article identifies interest balancing as a coherent method of separation of powers analysis that is both conceptually and practically well suited to address the separation of powers disputes that actually arise today.

Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers. This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens interstate commerce.

Partisan gerrymandering distorts voter preferences and undermines electoral competitiveness. Single-state redistricting reform has stalled because legislators and voters alike face diminishing incentives to reallocate power to their state’s minority party as partisan polarization increases. In the congressional redistricting context, however, interstate compacts could replace those incentives to compete with incentives to cooperate. The Constitution’s Compact Clause permits states to collaborate with each other but requires congressional consent. Yet the Constitution remains silent about which interstate agreements trigger this requirement, how Congress may provide consent, and how the Compact Clause interacts with the Elections Clause. This Comment explains how states could form redistricting compacts even without affirmative congressional approval.

Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Congress can be weak willed when it violates such statutes, and this weak-willed action jeopardizes the advantages of enacting such statutes in the first place. I propose that courts may apply familiar canons of statutory interpretation to hold Congress accountable to its commitments.

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy. This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy’s legitimacy. The results support the century-old idea that empowering politically insulated, expert decision-makers legitimizes agencies. This finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies’ perceived legitimacy. By contrast, the theory that greater presidential involvement enhances legitimacy receives no support.

The appropriate scope of the right to exclude is among the most contentious topics in property theory. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because everyone must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to keep off property unless the owner allows them on, is simple enough to be understood easily by those who must respect it. This Article defends an alternative analysis of how the information costs of property bear on the proper scope of exclusion. Legal rules generate two kinds of information costs: the costs of learning rules and the costs of applying them. While simpler rules may be easier to learn, they need not be easier to apply. Instead, a rule is easy to apply if individuals can easily determine whether a particular action would violate it. Once the costs of applying the right to exclude are considered, I claim, the law sometimes reduces information costs not by respecting exclusion but rather by restricting it. Information costs do not uniformly support greater exclusion, then, as exclusion’s defenders have argued; rather, those costs sometimes favor restricting it.

Under the Judicial Conduct and Disability Act of 1980, it falls to federal judges in each circuit to investigate and redress complaints about their colleagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. This Comment develops and defends a bright-line rule for conceptualizing effective removal. When a case-suspension sanction even temporarily has the effect of disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office. After crystallizing this concept, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA; assesses the risk that the Act’s case-suspension provision could be abused; and proposes an amendment that would foreclose effective removal.

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white-collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope. Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have struggled to consistently determine whether alleged property interests are covered by these statutes. This has led to overturned convictions in high-profile mail and wire fraud cases. This Comment aims to aid courts conducting the traditional property interest analysis by synthesizing the Supreme Court’s property-based case law and proposing a hallmarks-of-property test.