Faculty Bibliography

The sheer gamut of issues impacting transgender health equity may seem overwhelming. This article seeks to introduce readers to the breadth of topics addressed in this symposium edition, exemplifying that transgender health equity is a global issue that demands an interdisciplinary approach.

The combination of a global pandemic and global jeopardy to democracies exacerbates deficiencies in American education for children and youth and underscores the critical importance of renewed and amplified investments of resources and ideas. Underinvestment and stark disparities in educational opportunities persist across the nation. Inequities follow zip code and students' family income, and correlate with race and neighborhood, underscoring the differing effects of crime, family fragility, and access to educational opportunities outside of schooling. These matters take on constitutional significance at this time of frailty for many constitutional democracies, including the United States. Actually, America's constitutional democracy both presumes and supports commitments to educating each generation in the knowledge and dispositions to enable self-governance, in theory, as well as equipping successive generations to take on adult employment and family roles. Yet by presuming what is also a goal, the Constitution has not given rise to sturdy recognition of a federal right to education. Recent litigation advocating for constitutional recognition and enforcement of federal educational rights seeks judicial engagement, political action, and public attention. Arguments include historic roots in the views of the framers and national leaders, doctrinal developments in substantive due process and equal protection, and repeated Supreme Court articulations of the unique significance of education to the nation and its form of government. Objections to judicial recognition of a federal right to education can be countered and such a federal right could also be developed through legislation and practice. Work in this vein may stumble when it comes to spelling out the elements and priorities for practice; guided by education's relationship to constitutional democracy, its commitments should include cultivating understanding of facts, reasoned arguments, tolerance for social differences amid membership in communities, and the avenues for political participation and guards against tyranny. Whether enacted through judicial orders or political processes, legal commitments should address the promise and dangers from expanding home schooling and remote-access digital learning while deepening education critical to constitutional democracy.

This report is the second in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”). In this report, we assess whether policymakers should mandate the public dissemination of comprehensive real-time transaction-level data in cash Treasury markets.As described in the first report in this series, the March 2020 stress in cash Treasury markets and the September 2019 Treasury repo market spike were strong indications that Treasury markets are vulnerable to severe bouts of illiquidity that can threaten the broader financial system. Measures to strengthen the liquidity and resiliency of Treasury markets should therefore be a priority for U.S. policymakers.Policymakers and market participants have recently voiced support for mandatory post-trade transparency in cash Treasury markets. The Group of Thirty, an international body of current and former regulators, academics, and market participants, recommended in its 2021 report on Treasury markets that real-time transaction-specific data on cash Treasuries should be made public in a manner similar to the way that data on U.S. corporate bond transactions are currently disclosed. And Securities and Exchange Commission (“SEC”) Chairman Gary Gensler indicated in a speech this year that “[p]ost-trade transparency promotes liquidity and helps investors” and recommended that the Financial Industry Regulatory Authority (“FINRA”) consider publishing transaction-specific Trade Reporting and Compliance Engine (“TRACE”) data on cash Treasuries. Legislation has also been proposed that would bring comprehensive post-trade transparency to the cash Treasury markets.This report provides a unique survey of the current structure of cash Treasury markets and relevant academic literature on the effects of mandatory post-trade transparency. Part I describes the extent of pre- and post-trade transparency in cash Treasury markets, finding that pre- and post-trade data in cash Treasury markets is available only on a limited and fragmented basis.Part II evaluates the academic literature on the effects of mandatory real-time post-trade transparency in various asset classes, including corporate bonds, municipal bonds, and agency mortgage-backed securities, finding that post-trade transparency increases liquidity, reduces transaction costs, and enhances price efficiency. We therefore conclude that U.S. policymakers should mandate the public dissemination of real-time transaction-level data in cash Treasury markets.

This review of Madhav Kkhosla’s book, India’s Founding Moment, sees his approach as one of “best lights” understandings, that is, an effort to identify and explain the conceptual underpinnings of India’s founding constitution in their best lights. Khosla emphasizes as key the ways in which the constitution’s requirements of full adult suffrage, its intense specificity of language, and its strongly centralized government form, all contribute conceptually to the creation of the democratic citizen of India—a citizen whose rights across the country were secured by a common constitution and central government, whose knowledge of and ability to exercise rights were enhanced by the constitution’s codified approach, and a citizen whose capacities to participate in democratic processes would be developed by the exercise of democratic rights. The review focuses attention on choices about suffrage, comparing India’s with the less inclusionary founding impulses of the United States constitution. It explores nuances of how codification would and would not promote exercises of citizenship rights, noting the importance of adjudication in the construction of the “common knowledge” to which (according to Khosla) the founders aspired. And the review argues that today, as more illiberal, authoritarian regimes are on the rise, the book’s emphasis on the importance of ideas, words, and common knowledge in constructing liberal, democratic politics is of urgent contemporary importance.

Stigma against mental disability within the medical field continues to impose significant barriers on physicians and trainees. Here, we examine several implications of this stigma and propose steps toward greater inclusion of persons with mental disabilities in the physician workforce.

This report is the third in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”) and for repurchase agreements of U.S. Treasuries (“Treasury repos”). In this report, we describe the Federal Reserve’s domestic standing Treasury repo facility and consider whether expanding access to the standing Treasury repo facility would enhance the liquidity and stability of U.S. Treasury markets, as has been argued by financial market experts.

Hate speech, disinformation, and polarization are underwritten by deeply rooted media market dynamics involving the profitability of stoking anger and providing easy, identity-confirming outrage. Solutions therefore must focus on changing the payoffs to selling outrage and hatred. This essay offers two approaches that aim to make the outrage industry internalize the externalities of its business model. The first is a reconsideration of defamation laws. The second is the creation of a regulatory framework mandating transparency from companies that profit from advertisements in outrage media content. There would be a publicly curated database that makes transparent which companies have advertising associated with hateful content. Civic organizations and citizens would be encouraged to apply economic and social pressure on corporations to divest from this type of content. The essay discusses the benefits and drawbacks of these approaches, offering them as potential short-term solutions to a problem that will require long-term intervention.

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Approaches to calculating fraud on the market 10b-5 damages have evolved substantially from the 1970s to the present. In this Essay I discuss the various approaches used over this span of time, including the rise of the event study approach.

When conduct in one state causes injury in another state, and the law at the place of injury is more favorable to the victim than the law of the place of conduct, what law applies? Where can suit be brought? The traditional answers are that the law of the place of injury applies but that it may be unconstitutional to sue the tortfeasor in the courts at the place of injury because all the tortfeasor’s conduct took place outside the forum. Scholars have long criticized this contradiction, and this Article argues that they are right to do so. If we focus on choice-of-law theory and the emerging choice-of-law rules in the Third Restatement of Conflict of Laws, we see that the argument for applying the plaintiff-protecting law of the place of injury is strong. This Article explains and develops that argument, and it gives us reason to reject the idea that the place of injury courts have no personal jurisdiction over the defendant. Hobbes taught us that the first job of government is to protect us from harm at the hands of others and, as long as it is objectively foreseeable that the conduct could have caused harm in the place of injury, there is no fundamental unfairness or constitutional prohibition on applying place of injury law. If that is so, it is irrational not to allow victims to sue at home where they have been injured. Nor is personal jurisdiction unfair to the defendant. It is time to bring choice-of-law doctrine and personal jurisdiction law more in line with each other, and the right way to do so is to adopt an approach that ensures that victims have civil recourse in their home courts against those who stand across the border engaged in acts that intentionally or predictably cause harm there.

In this paper, Massad and Jackson propose that the SEC and the Commodity Futures Trading Commission (CFTC) jointly create and oversee a new self-regulatory organization, similar to the Financial Industry Regulatory Authority (FINRA) or the National Future Association (NFA).

While stablecoins could produce important consumer benefits and valuable competition in the payments space, current regulation of stablecoin issuers is woefully inadequate. Legislative solutions are possible but may not be forthcoming any time soon. In the meantime, markets continue to evolve and other regulatory systems may move ahead of the United States in payments innovation.We propose a federal framework for the issuance of stablecoins within the existing regulatory framework for insured depository institutions, a structure that would not require any new legislation. In our view, a well-designed regulatory platform would put the “stable” in stablecoins—protecting consumers from the risks of illiquidity and potential losses in the event of a stablecoin issuer’s default, and protecting the financial system from instability as the stablecoin market grows in size and importance. The market value of all stablecoins, which was around $5 billion at the beginning of 2020, exceeded $140 billion at the beginning of August 2022. The framework described in this white paper is consistent with the recommendations of the President’s Working Group on Financial Markets in its November 2021Report on Stablecoins.Under current law, the Comptroller of the Currency could authorize a national trust bank charter, organized as an operating subsidiary of an insured depository institution, to create stablecoins through the use of a dedicated trust vehicle. Under our proposal, the Comptroller would adopt standards limiting the investment of stablecoin reserves to high quality liquid assets and address redemptions and operational resilience, among other matters. Our approach could promote increased competition in payments services and potentially safeguard the role of the dollar in international finance. While our framework would not be mandatory, our approach would provide substantial benefits to stablecoin sponsors, thus increasing the likelihood that they would opt into the framework.Coordination across government agencies would be necessary to implement our recommendations effectively. The federal banking agencies—the Federal Reserve Board, the Comptroller, and the Federal Deposit Insurance Corporation —would have to support this framework. The FDIC would not insure stablecoin holdings under our proposal, but could be responsible for resolving a stablecoin national trust bank if one ran into trouble. Buy-in from both the Securities and Exchange Commission and the Commodity Futures Trading Commission would be highly desirable. We recommend that a working group of the Financial Stability Oversight Council quarterback this coordination. Our proposal is self-consciously incremental and cautious, imposing stringent and overlapping safeguards and preserving the separation of banking and commerce. If successful, our proposal might later be liberalized in a variety of ways. The experience gained in developing our approach could also be useful in drafting more comprehensive legislation.Implementing our proposal would, no doubt, be a substantial administrative lift, but it would represent a viable and realistic way forward.

Since 1970, the law of standing has been dominated by the "injury in fact" requirement. That requirement was first announced in an opinion by Justice William O. Douglas, who clearly sought both to expand the category of people entitled to challenge government action and to simplify the standing inquiry in significant ways. Justice Douglas made no effort to root that requirement in the text or history of the Constitution, or indeed in any of the Court's precedents. As far as constitutional law is concerned, the injury-in-fact test was made up out of whole cloth. It appears to have come from a 1955 law review article by Kenneth Culp Davis. Davis himself purported to interpret the Administrative Procedure Act (APA), not the Constitution. His interpretation of the APA was an egregious blunder. Over the course of the last half-century, the injury-in-fact test has been transformed from a bold effort to expand the category of persons entitled to bring suit into an equally bold effort to achieve the opposite goal, by understanding judicially cognizable injuries largely by reference to the common law (and the Constitution), and by severely restricting Congress' power to create new rights and to allow people to sue to protect those rights. The transformation is lawless. It is disconnected from standard sources of constitutional law. There is an irony here, and it is in the foreground, not in the background. The administrative state arose out of grave dissatisfaction with private law principles. In diverse ways, it was founded on a recognition that various interests beyond those protected by the common law (including those of consumers, investors, workers, environmentalists, and victims of discrimination) deserve some kind of legal protection. To be sure, the interests of the objects of regulation, armed with private-law rights, continued to matter, and would be a legitimate basis for a lawsuit. But in multiple domains, Congress explicitly decided that the beneficiaries of regulatory protection also ought to have access to court to protect their statutory rights. And even when Congress did not make that explicit decision, the relevant provision of the APA could easily be read to authorize such access, at least in certain circumstances. The irony is that the Court is now building the public law of standing directly on the private-law foundations that Congress rejected, as a matter of principle, in creating modern statutory programs and new statutory rights. As we shall see, we are witnessing a form of " Lochnering." My central goal in this Article is to offer a compressed sketch of the rise and the evolution of the idea of "injury in fact" in federal standing law. It is a truly astonishing tale. The brief sketch could, of course, be a lengthy narrative; my hope is that the main lines of the tale, and its astonishing nature, will emerge more clearly if presented in a compressed fashion. I also hope that an understanding of the novelty of the injury-in-fact requirement, and its peculiar origins, might help to cast in bold relief the even newer effort to build standing principles on traditional private rights, and to expose the oddity of the associated idea that Congress lacks the authority to create rights that lack clear analogues in the common law.

This essay discusses how several institutions might be designed to implement popular constitutionalism within a liberal constitutionalism frame. The institutions are (1) forms of direct popular legislation such as referendums, (2) imperative mandates or instructions to representatives that the representatives must follow, sanctioned by automatically removing a noncompliant representative from office, and (3) modern communications technologies used to elicit citizen views as an alternative to voting (or polling). As to referendums, it critiques arguments (1) that referendums can oversimplify complex policy options in ways that sometimes produce outcomes that are indefensible in principle, incoherent, and inconsistent with what the people would prefer after the kind of deliberation that occurs in representative assemblies, and (2) that referendums systematically, though not inevitably, threaten rights of minorities that liberal constitutionalism guarantees. As to imperative mandates, it argues that objections track those to referendums, and offers parallel responses. And as to modern communications technologies, it focuses on such concerns that they fail to take advantage of specialized knowledge, and argues that overestimate the degree to which specialists actually have specialized knowledge and underestimate the degree to which such knowledge is available within a population of ordinary people and observes that sometimes domains in which specialized knowledge really is required can be identified in advance and exempted from these mechanisms.

Are "canons of construction" embarrassing? For a long time, the answer was "yes." Exposed as "contradictory" by Karl Llewellyn, a generation of legal thinkers understood interpretive canons to be so malleable in their application as to operate mostly as pretext. Rather than bring predictability to statutory decisions, the availability of more than one interpretive canon in nearly any appellate case meant that a canon's invocation worked mostly to obscure the choice (conscious or not) by judges between legally permissible outcomes. Interpretive canons were thus tools of legal mystification, providing the appearance of law to what were, ultimately, acts of discretion.

Published with Thomson Reuters since 2010.

Across the ages, moneys exhibit a recurring set of design elements: they are made of debt; that debt is specifically fashioned to create liquidity; and the debt medium that results comes with a pledge of value (commonly collateral, convertibility, a commitment of public faith, and/or insurance) to enhance its credibility. While those design elements appear again and again, they vary greatly in form. Debt, for example, can be structured as a straightforward liability or issued by agents (e.g., a central bank acting for a government). Every difference in design changes the dynamics of the medium and the way people treat it. Every difference in design thus affects exchange, its societal context, and how value travels. Like the law of payments, the legal design of money shapes the economy itself. [This essay is written as part of a festschrift for Professor Benjamin Geva.]

In 2021, the USA and other governments formally blamed Russia for a wide-ranging hacking campaign that breached the update process for SolarWinds Orion network monitoring software and used that access to compromise numerous government agencies, companies and other entities. Despite denouncing Russia’s cyber espionage and imposing sanctions, the USA did not call Russia’s actions illegal as a matter of international law – and for good reason. Based on the publicly available facts, this article argues that the SolarWinds incident likely did not run afoul of international law as it currently stands. The article considers the prohibitions on the use of force and intervention, emerging rules with respect to violations of sovereignty and due diligence, and international human rights law, and it concludes with some reflections on the role of states and scholars in decisions about whether to close gaps in international law.

This article explores subjects in optimal income taxation characterized by recent research interest, practical importance in light of concerns about inequality, potential for misunderstanding, and prospects for advancement. Throughout, the analysis highlights paths for further investigation. Areas of focus include multidimensional abilities and endogenous wages; asymmetric information and the income of founders; production and consumption externalities from labor effort; market power and rents; behavioral phenomena relating to perceptions of the income tax schedule, myopic labor supply, and the interactions of savings, savings policies, and labor supply; optimal income transfers; the relationship between optimal income taxation and the use of other instruments; and issues relating to the social welfare function and utility functions, including nonwelfarist objectives, welfare weights, heterogeneous preferences, and taxation of the family.

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a *standard*, not a *decision procedure*. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.Distinguishing standards from decision procedures explains how originalists can tolerate substantial uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.It would be very nice if the correct constitutional theory gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

Roscoe Pound was one of the most celebrated figures in twentieth century American legal thought, having originated the field of sociological jurisprudence which presaged legal realism and having served for two decades as Dean of Harvard Law School. Less well known is his extended role in China as a principal advisor to the Nationalist government as it fought a civil war during the 1940s against the Chinese Communist Party. And even less fully explicated is the story of how Pound's ideas influenced Chinese legal thought to this day and of how China influenced his thinking. Pound for Pound has two principle objectives. The first is to reconstruct, from archival and other materials, Pound's adventures (and misadventures) in China, and then to examine the ways in which his thought was first lionized by Chinese scholars, then denounced during the early years of the People's Republic of China, and subsequently, in the late twentieth and early twenty-first centuries, embraced there. The second is to use Pound's experience to raise questions about the role of U.S. and other foreign scholars involved in Chinese legal development over the past several decades that have not received the scrutiny warranted.

The United States Tax Court hears well over 90% of the federal tax cases litigated each year with only a small percentage of opinions coming out of district courts and the Court of Federal Claims. The Tax Court classifies its opinions as precedential or non-precedential based on the issues presented. Over 75% of Tax Court litigants file their petition pro se. Each year it classifies a handful of opinions as precedential in which the petitioner(s) is pro se. In almost all of these cases the Court creates binding precedent on the basis of a case in which only one side, the IRS, presents meaningful legal arguments thus turning the process leading to the decision from one based on the adversarial process to the inquisitorial process. While the Tax Court works hard to reach the right conclusion, it loses the benefit of legal argument on the side of the petitioner/taxpayer and potentially reaches a different conclusion than it might have reached had the taxpayer’s side of the argument been well developed. Tax Court opinions typically take several months or years after trial before the Court renders an opinion. This paper suggests that when the Tax Court decides to render a precedential opinion in a pro se case it pause its deliberations for a short period and appoint or solicit members of its bar, either in the low income taxpayer clinical community or other pro bono counsel, to allow the submission of an amicus on behalf of the position of the taxpayer. The paper points to practices in other courts that have developed a more formal approach to amicus briefs as models for the proposed practice. Adopting such a practice would not only benefit the individual litigant but all who follow with the same issue.

The tax system designed by Congress imposes significant administrative burdens on taxpayers. IRS decisions regarding how it administers tax laws can add to congressionally imposed burdens. The administrative burdens are consequential and hurt some people, especially lower- or moderate-income individual taxpayers, more than others. While the IRS strives to measure and reduce the time and money taxpayers spend to comply with their tax obligations, it does not consider the effect administrative burdens have on taxpayer rights, including the right to be informed, the right to pay no more than the correct amount of tax, and the right to a fair and just tax system. In this Article we discuss the concept of administrative burdens and reveal specific examples of how IRS actions, and inaction, have burdened taxpayers and jeopardized taxpayer rights. In addition to identifying and contextualizing these problems, we propose that the IRS conduct Taxpayer Rights Impact Statements on new and existing systems to evaluate when it would be appropriate to reduce, eliminate, or shift burdens away from citizens and onto the government or third parties.

Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in public accommodations law. Can public accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to public accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a public accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.

What do restorative justice initiatives and racial justice initiatives have to offer one another? In high schools and in criminal law settings, these phrases name and mobilized people, resources, and critiques. Despite real differences in original methods, there seems much for racial justice and restorative justice to share. Racial justice advocates rightly call for both personal change and also systemic transformation. Restorative justice points toward political, legal, and economic policies and practices while also working hard on transformations of the attitudes, feelings, and world-views of individual. Both need to attend as well to media and public education, as well as the day-to-day interactions in communities. And both point to ways to connect the personal and the structural, the interpersonal and the political, the individual freedom to act and the collective systems that so often seem hard to move. And both can focus on the concentric circles of actors and contributing influences on conflicts that can be resources for change.

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to be the most likely to reoffend.

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of the answer turns on legal craft—identifying the tools available to a Justice as she decides individual cases. However, part of it also requires adopting a regime perspective— ensuring that a Justice’s actions meet the challenges of her own constitutional moment. In my account, Chief Justice Roberts takes centerstage. Beginning with legal craft, I analyze the tools that Roberts employs to preserve the Court’s legitimacy in concrete cases—namely, coalition building, calls for action by the elected branches, incrementalism, charity for the opposing side, triangulating between constitutional extremes, and promoting a vision of institutional humility. From there, I adopt a regime perspective, charting three future paths for the Roberts Court—each with its own set of challenges for the Justices as they seek to preserve the Court’s institutional legitimacy.

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity, thereby delivering an important victory for LGBTQ+ persons in their continuing struggle to be treated with equal regard in all areas of life. A striking feature of the case, and one reason why it has been so widely discussed, is that all three opinions—the majority and two dissents—professed to apply a textualist theory of statutory interpretation. In particular, all three opinions took for granted that courts should enforce a statute’s ordinary meaning at the time of enactment.3 No competing theory of statutory interpretation was even on the table. Going forward, we can expect textualism to play an increasingly prominent role in how courts resolve questions of statutory interpretation. So, it is worth asking what textualism instructs courts to do and whether courts should do as textualism instructs. A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries attempts to answer both of those questions. It contends that there were multiple versions of textualism on display in the Justices’ opinions in Bostock and that none of those versions is ultimately defensible. This is a long and rich Article by distinguished scholars, and I agree with much of what they say. Yet I also think that their characterization of and objections to textualism miss the mark. In this Essay, I argue (i) that the versions of textualism that Eskridge, Slocum, and Gries criticize are not really textualism; (ii) that their examples of “societal dynamism” do not put any pressure on textualism properly understood; and (iii) that their corpus-linguistics analysis of the word “sex” would not persuade any textualist to adopt their preferred interpretation of Title VII. I am not a dyed-in-the-wool textualist myself: while frequently sympathetic to textualism, I doubt that judges ought to employ it in every case. Still, my sense is that many commentators are unduly dismissive of textualism—tending to criticize strawman versions of it rather than the genuine article—and my goal is to push back against that tendency here. Below, Part I attempts to lay out more clearly what textualism claims. Parts II and III argue that the “compositional” and “extensional” versions of textualism that Eskridge, Slocum, and Gries criticize are not textualism and, indeed, not positions that any mainstream legal interpreter today claims to hold. Part IV answers the authors’ objections to textualism based on so-called societal dynamism. Finally, Part V turns to the authors’ corpus-linguistics analysis of “sex.”

As the semantic capability of computer systems increases, the law should resolve clearly whether the First Amendment protects machine speech. This essay argues it should not be read to reach sufficiently sophisticated — "replicant" — speech.

"Steven Shapin began a classic work with this sentence: "There was no such thing as the Scientific Revolution, and this is a book about it."1 This book’s theme might be put in similar terms. There was no Constitutional Revolution of 1937, and this is a book about it. As the book’s subtitle suggests, the Hughes Court from its inception in 1930 was in large measure a Progressive court, committed in a wide range of areas to the vision of active government associated with the Progressive movement in thought and politics. The Court was not dominated by a deep formalism, though most of the justices, liberals and conservatives alike, had their moments of formalism - and not merely for strategic reasons when controlling precedent forced formalism on them. At one time or another and cumulatively a great deal of the time, all of the justices incorporated ideas about good public policy in their interpretations of the Constitution and federal statutes"– Provided by publisher.