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Standard theories of precedent limit the legal effect of a precedent to cases within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: It also requires the judge to update her other beliefs around the assumption that the precedent’s holding is true.

This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.

How many amendments are in the Constitution? Americans should be able to know. But whether the Equal Rights Amendment is—right now—part of the Constitution remains controversial. Thirty-eight states have sought to ratify it, several of them after the seven-year deadline in the proposing resolution. Given President Joe Biden’s last-minute claim that the ERA is now the Twenty-Eighth Amendment, in a future administration this lingering debate could provoke a minor constitutional crisis. Yet there may be a legal answer. Congress has long placed operative language in amendment resolutions that modifies the legal force of the proposed text—not only in the Bill of Rights, as is well-known, but also in the Twelfth and Seventeenth Amendments. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that, under Article V, the resolution is the amendment: What matters is the entire constitutional change that Congress proposes, not just the additional language it would append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any change to the Constitution’s text once seven years had passed. Both President Biden’s statement and the ongoing lobbying efforts are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost: The National Archives is the wrong place to play with fire.

This Book Review examines the significance of Professor David E. Wilkins’s newest book Indigenous Governance: Clans, Constitutions, and Consent. It suggests that Wilkins has produced a critically important collection of primary sources related to the origins of tribal government and that his contribution could not come at a better time within the discipline of Indian Law. This Book Review takes the position that Indian Law is seeing the emergence of a fourth wave of scholarship that recenters the conversation from tribal self-determination as a means of decolonization to one embracing the autochthonous powers of tribes themselves. It is distinct from earlier waves of Indian Law scholarship because it does not position tribal powers within the tribal-federal framework but recognizes them as distinct and subject to change at the direction of tribal leadership. To enable this genesis, scholars need primary research material that collects and summarizes the nature of the tribal sovereign using tradition and custom, tribal law and tribal judicial authority, and the founding documents and stories that ultimately create an Indigenous polity. Indigenous Governance is that text.

Recently, the idea of self-negating prophecies has gained traction as a public choice problem. It might now be situated in behavioral economics as much as in sociology and psychology. In capital markets, small investors might be dissuaded from taking optimal precautions simply because it is difficult to evaluate risks. An investment manager is nonetheless rewarded for producing high rates of return and is often abandoned when underperforming other professional investors. Things are different for a recognized oracle with significant influence on the market. This Essay explores the phenomenon of self-negating prophecies in the business world and evaluates the likelihood that predictions by this oracle can be self-negating rather than self-fulfilling.

The push for more pretrial screening creates a tension between the Sixth Amendment’s dual guarantees of an impartial jury and a jury drawn from a fair cross-section of the defendant’s community. Because social media is disproportionately consumed among young adults, particularly ages eighteen to twenty-nine, heightened scrutiny of social media exposure during voir dire risks systemically excluding younger citizens from jury pools, thereby undermining a defendant’s right to a fair cross-section.

This Essay explores the future of legal prediction markets. Part I explains how markets work and what makes them hard to beat. Part II then turns to the largest legal prediction market to date: the outcome of Learning Resources. Finally, Part III considers whether markets are well-suited to forecasting legal outcomes, both in principle and in practice.

Each year, more than half of criminal defendants subject to the career offender sentencing enhancement are those with prior drug convictions. Because the goal of the Sentencing Guidelines is to “inject transparency, consistency, and fairness” into federal sentencing, clarity on how courts should assess decriminalized drug offenses as § 4B1.1 predicates is needed to restore uniformity to the system and satisfy the Guidelines’ original goals. This Essay calls upon the Sentencing Commission to clarify its intent, place time limits on decriminalized drug predicates for § 4B1.1, and restore greater uniformity to the system.

Law and economics (L&E) emerged as a field in the middle of the twentieth century, it focused on using economic theory to study the common law. During this period, L&E offered insights so novel that it not only profoundly influenced legal doctrine, but the movement’s key figures also became some of the most cited and acclaimed scholars in the American academy. The field of law and economics has since continued to grow and become more technically sophisticated, but it is also a less cohesive movement. Moreover, L&E has been misunderstood and misrepresented by the emerging law and political economy (LPE) movement. This Essay starts the process of reclaiming L&E by offering a definition of the current field: Contemporary law and economics is an academic field that (1) has a commitment to using the social scientific method of inquiry to (2) study questions about the law and legal institutions (3) in a way that is typically informed by economic insights. It then describes L&E’s comparative advantages, explains its relationship to the LPE movement, and suggests a roadmap for its renewed relevance.

Is President Donald Trump appealing in part because he has made contracts seem like provisional arrangements likely to endure only insofar as they serve his (or putatively national) interests? Two political economy studies of U.S. workplaces and firms, one ethnographic and one historical, can begin to shed light. Ilana Gershon’s ethnography explores how people’s everyday legal and political consciousness is formed through their experiences of regulatory decision-making in a contract-filled workplace. Sociologist Melinda Cooper’s historical account reveals how a turn to viewing corporations as a conglomeration of individual contracts paved the way for a veneration of autocratic rule. In making this argument, this Essay contributes to the Symposium in two ways. First, it illustrates the value of an insight that has helped organize the field of law and political economy but not law and economics: namely, that people’s legal and political sensibilities are often shaped by their experiences in economic life. Second, it illustrates the value of interpretative social sciences, which has remained marginal in both fields. It argues that qualitative and ethnographic research methods are particularly useful in moments such as the political present in the United States when what can be assumed about political, legal, and class identities and categories is rapidly changing.