Faculty Bibliography

We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that "constitutional decisionism" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.

"This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession. Employing a range of original data from twenty empirical studies, the book details the emergence of a new corporate legal sector in India including large and sophisticated law firms and in-house legal departments, as well as legal process outsourcing companies. As the book's authors document, this new corporate legal sector is reshaping other parts of the Indian legal profession, including legal education, the development of pro bono and corporate social responsibility, the regulation of legal services, and gender, communal, and professional hierarchies with the bar. Taken as a whole, the book will be of interest to academics, lawyers, and policymakers interested in the critical role that a rapidly globalizing legal profession is playing in the legal, political, and economic development of important emerging economies like India, and how these countries are integrating into the institutions of global governance and the overall global market for legal services." --Publisher

The standard conception of executive branch legal review in the scholarship is a quasi-judicial Office of Legal Counsel (“OLC”) dispensing formal, written opinions binding on the executive branch. That conception of executive branch legalism did have a brief heyday in practice. But its institutional underpinnings are unstable. A different approach to executive branch legalism—informal, diffuse, and intermingled in its approach to lawyers, policymakers, and political leadership—is today on the rise. This Article documents, analyzes, and assesses that transformation. Scholars have suggested that the failure of OLC to constrain presidential power in recent publicized episodes means that executive branch legalism ought to become more court-like. They have mourned what they perceive to be a disappearing external, legalistic constraint on the presidency. But executive branch legalism has never been an exogenous or external check on presidential power. It has always been a tool of presidential administration itself. The needs of the president have simply shifted. While earlier presidents looked to executive branch legalism to buttress public legitimacy through a more insulated, more court-like design, the president today looks to executive branch legal review to augment discretion at the retail, or issue-specific, level—to forge pathways to policy and political compromise in highly-contested, consequential, and legalistic terrain. There is much at stake in that transformation. But it is not the disappearance of law as an external constraint on the presidency. Rather, it is a reformation of executive branch legalism as an instrument of presidential power. Exploring that transformation sheds light on presidential power, the making of executive branch law, and the interrelationship between them.

Delloyd J. Guth Visiting Lecture in Legal History: September 17, 2015.

The article presents a reprint of the article "The Other Forever War" by Jack Goldsmith and Matthew C. Waxman, which appeared in the "Time" magazine. It discusses the comprehensive and sustained counterterrorism strategy launched by the U.S. against the Islamic State terrorist group under the administration of President Barack Obama. The controversial use of the 2001 Authorization to Use Military Force (AUMF) as the legal foundation for war against the Islamic State was noted.

This chapter explores the way bioethics is taught as part of U.S. health law. It begins with an overview of changes in several major textbooks in the field that cover bioethics and the law, in terms of their content and the way they organize the field. It then considers the problem of translation and, more specifically, the ways in which the ethical discourse gets translated into a much more formalist legal discourse, by discussing a number of recent court cases, including Sherley v. Sebelius and Isaacson v. Horne. It proceeds by assessing where the field is going, with emphasis on the increased interest in population-level bioethics and the law, including the increased recognition of intellectual property and drug development as topics for both disciplines. The chapter also examines the rise of libertarian bioethics in litigation by focusing on two circuit court cases: Abigail Alliance v. Eschenbach and Flynn v. Holder.

Over the past two years, the harms associated with criminal justice debt have gained widespread attention, which has sparked promising momentum for reforms. Central to understanding those harms is identifying the racially disparate effects of practices in jurisdictions around the country--courts should champion reforms to eliminate those disparities.

In late 2013, the Japanese Supreme Court voided inheritance rules giving non-marital children half the shares of their marital half-siblings. To punish children for the sins of their parents, it explained, violated the equal protection clause of the Constitution. Like the stigma that most traditional societies attached to illegitimacy, the inheritance rules had reflected a simple selection bias: the societies that survive are those where more children live to reproductive age; in harsh environments (the norm until a few centuries ago) whether children survived turned on the level of investment adults made in them; men tend not to invest in children whose paternity they do not know; hence, non-marital children had been substantially less likely to survive; but the stigma attached to illegitimacy and the accompanying legal disabilities had helped minimize the number of such children by channeling sex into stable dyadic relationships. The pre-2013 inheritance rule had promoted that relational stability by helping women hold men to their promises. In order to induce women to marry them, men routinely promise to invest in the children they bear together. The earlier rule had assured women that if their husbands breached those promises in life, they could at least trust the law to favor their children in his death. After 2013, the courts could no longer offer even that assurance.

The link between domestic abuse and housing instability is undeniable; survivors often face housing loss as a direct result of abuse or find themselves homeless after fleeing violence. In an all-too-common scenario, a survivor lives with her abuser, but is not on the lease because the abuser intentionally withholds housing stability as a method of abuse. In those cases, survivors may have to choose between their safety and their housing if they decide to separate from their abusers. Now, however, under the Supreme Judicial Court’s (“SJC”) recent decision in Beacon Residential v. R.P., survivors of domestic violence—including those who aren’t on the lease and are alleged to be “unauthorized occupants” by the landlord—are allowed to intervene as of right in summary process cases under Mass. R. Civ. P. 24 (a)(2) if they claim an interest relating to the apartment subject to the eviction proceedings. Beacon Residential Management, LP v. R.P., SJC-12265, slip op. (Sept. 14, 2017). As a result, thousands of survivors across the Commonwealth, formerly excluded from summary process cases, will have a right to their day in Housing Court.

For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."

Environmental law and energy law, two historically disparate fields, seem to be converging. Energy regulation has begun to seriously address environmental concerns for the first time, and environmental law is increasingly becoming a driver of energy policy. This Article describes the legal mechanisms through which greater congruence has been achieved, while acknowledging the still significant and stubborn barriers to true integration, which likely will be difficult to overcome. It shows that federal agencies have taken steps toward greater policy alignment by repurposing existing statutory provisions and relying on previously under-utilized legal authorities for the first time, in a carefully calibrated process of legal innovation. Yet it also shows this process to be meaningfully constrained by the agencies' adherence to their own distinct missions, and by the constraints of their particular statutory authorities. The Article builds on the work of scholars who have lamented the divide between energy and environmental law, and urged that it be dismantled. Most of the accounts to date suggest that environmental rules and energy sector regulation, which are so obviously interrelated, inevitably will be drawn closer together. The analysis here looks more closely at the drivers of convergence to date, and presents a more nuanced picture of events. The trend toward greater policy alignment, while real, is limited. Energy and environmental regulators have not embraced convergence as an independent goal, but rather have achieved it incrementally and indirectly, as a consequence of pursuing their traditional missions during a time of change. These agencies have reacted to numerous external forces--technological innovation, market shifts, scientific developments, federal and state regulatory measures--which have prompted them to respond with their own initiatives. Yet they remain constrained by the bounds of their governing statutes and the confines of their long established regulatory roles. Tellingly, these agencies have tended to justify their policy innovations as necessary to fulfill their own traditional mandates, not to help other agencies realize theirs. The Article ultimately concludes that claims of convergence between the two fields should be tempered. However desirable greater policy congruence might be, it has not been mandated by Congress, explicitly commanded by the President, or centrally directed by anyone else. And it is not inevitable. The most that can be said is that convenient alignments may arise when the imperatives of these different regulators coincide. Thus, the story of “convergence” between energy and environmental goals is one of gradual steps rather than great leaps--of interest-based compatibility rather than love-struck merger.

Critics of current tying doctrine argue that metering ties can increase consumer welfare and total welfare without increasing output and that they generally increase both welfare measures. Contrary to those claims, we prove that metering ties always lower both consumer welfare and total welfare unless they increase capital good output. We further show that under market conditions we argue are realistic (which include a lognormal distribution of usage rates that are independently distributed from per-usage valuations), metering ties always harm consumer welfare, even when output increases. Whether metering ties raise or lower total welfare depends on the dispersion of desired usage, the cost structure, and the dissipation of profits caused by metering. For realistic cost values, metering ties will reduce total welfare if the dispersion in desired usage of the metered good is below 0.62. (For comparison, 0.74 is the dispersion of income in the United States.) If 5% of metering profits are dissipated, metering will reduce total welfare for all cost levels unless the dispersion in desired usage exceeds 150% of the dispersion of income in the United States.

"The Wisdom of Finance takes well-known financial concepts and applies them to our most pressing life issues. The book is philosophical in its approach, but Desai's thesis is peppered with real-life examples of how financial types can and should see the world around them." --Publisher

During the past century, three decisionmaking systems have arisen to accomplish a bankruptcy restructuring — judicial administration, a deal among the firm’s dominant players, and a sale of the firm’s operations in their entirety. Each is embedded in the Bankruptcy Code today, with all having been in play for more than a century and with each having had its heyday — its dominant age. The shifts, rises, and falls among decisionmaking systems have previously been explained by successful evolution in bankruptcy thinking, by the happenstance of the interests and views of lawyers that designed bankruptcy changes, and by the interests of those who influenced decisionmakers. Here I argue that these broad changes also stem from baseline market capacities, which shifted greatly over the past century; I build the case for shifts underlying market conditions being a major explanation for the shifts in decisionmaking modes. Keeping these three alternative decisionmaking types clearly in mind not only leads to better understanding of what bankruptcy can and cannot do, but also facilitates stronger policy decisions today here and in the world’s differing bankruptcy systems, as some tasks are best left to the market, others are best handled by the courts, and still others can be left to the inside parties to resolve.

Trade in agricultural products raises sensitivities, particularly when imports originate from a trading partner experiencing an outbreak of some type of agricultural disease. In this Article, we explain why despite the negative externalities associated with diseased imports, an importing country is generally not permitted to ban such imports outright under WTO law. Rather, it is allowed to do so only under fairly specific circumstances. We also highlight how the recent India – Agricultural Products ruling contributes to the jurisprudence of two issues concerning the SPS Agreement: the interpretation of international standards, and the relationship between the risk assessment and scientific evidence requirements.

Communities of responsibility and the cultures that nurture them take many steps to build. An important step is to honor remarkable individuals with courage and commitment. Raphael Lemkin, Benjamin Ferencz, Luis Moreno Ocampo, Emmanuel Uwurukundo, Samantha Power, filmmaker Edet Belzberg, and Victor Koningsberger deserve recognition and honor. At the same time, we need to emphasize that an upstander does not need extraordinary qualities. Ordinary people can and do stand up in small and big ways against oppression and injustice. Education can help. Speeches can help. When we honor heroes, we should not simply recognize individual courage. Doing so can help to constitute a community around the value of standing up. Joining with others to make it more possible for each next act of upstanding can help even more. Pushing to construct peer cultures of upstanding, reducing fears of speaking out against bullying and discrimination, preparing people to recognize and combat denial, rationalization, and feeling overwhelmed, and building social networks of mutual aid and support, will help us all be upstanders and help us rescue the humanity of others and of ourselves.

The article discusses the history and legacy of the U.S. Supreme Court case Walker v City of Birmingham, particularly its significance to the First Amendment to the U.S. Constitution, the civil rights movement led by Dr. Martin Luther King, Jr., and Jim Crowism in Alabama under then-governor George Corley Wallace.

Wills, Trusts, and Estates

In enacting the G.I. Bill of Rights in 1944, Congress made available an unprecedented slate of benefits to nearly all returning servicemembers, establishing a broad eligibility standard that excluded only those whose conduct in service was “dishonorable.” This move revoked from the Department of Veterans Affairs (VA) its authority to choose the standards for receiving benefits but preserved agency authority to evaluate the facts of each case. Yet today, former servicemembers whose conduct was not “dishonorable” are nevertheless excluded from receiving basic services at the VA because agency regulations have drifted from the statutory standard. At the same time, military discharge practices have changed in ways that exacerbate the gap between statutory intent and regulatory outcomes. These changes have led to a historically unprecedented rate of exclusion from basic veteran services and a failure to enact the statutory standard Congress prescribed. This article uncovers the history of the VA’s “other than dishonorable conditions” eligibility standard and uses traditional tools of statutory interpretation to rediscover its true meaning and argue for revisions to the VA’s present implementing regulations and policies. Restoring the clarity and purpose of this law would re-establish the proper balance between Congress and the VA, and better fulfill our nation’s promise to care for those who have served our country in uniform.

Scholars and judges agree about the importance of constitutional approval — that is, people’s subjective support for their constitution. The Supreme Court has asserted that it owes its very legitimacy to popular backing for its decisions. Academic luminaries have concurred, while also connecting constitutional approval to compliance, durability, and the easing of the countermajoritarian difficulty. Until now, though, no information has been available on either the levels or causes of constitutional support. In this Article, we rectify this shortcoming by presenting the results of a nationally representative survey that we conducted in late 2014. The survey asked respondents about their approval of the federal Constitution and of their state constitution, and about several potential bases for support. We also supplemented the survey by coding dozens of features of state constitutions. This coding allows us to test hypotheses about the relationship between constitutional content and constitutional backing. What we find is illuminating. First, people highly approve of their constitutions — the federal charter more so than its state counterparts. Second, approval is unrelated to what constitutions say; it does not budge as their provisions become more or less congruent with respondents’ preferences. Third, approval is only weakly linked to respondents’ demographic attributes. And fourth, the most potent drivers of approval are constitutional familiarity and pride in one’s state or country. To know it — and to be proud of it — is to love it. These results unsettle several literatures. They mean that people form opinions about constitutions differently than they do about other institutions. They also mean that comparativists may be going down a dead end as they focus ever more intently on constitutional design. But perhaps our study’s clearest implication is for leaders who value popular support for the constitution. Our advice to them is to forget about constitutional change, and instead to try to build the public’s knowledge and appreciation of the charter. Constitutional approval, like statecraft, is ultimately a project of soulcraft.

This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBT persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decisions on marriage equality in Obergefell and Windsor, and the growing set of religious liberty claims asserted by opponents of LGBT equality measures. Gender identity issues are covered throughout the book.

In 1976, United States Secretary of State Henry A. Kissinger conducted a series of intricate, multiparty negotiations in Southern Africa to persuade white Rhodesian leader Ian Smith to accede to black majority rule. Conducted near the end of President Gerald Ford’s term in office, against substantial U.S. domestic opposition, Kissinger’s efforts culminated in Smith’s public announcement that he would accept majority rule within two years. This set the stage for the later Lancaster House negotiations which resulted in the actual transition to black majority rule. The account in this working paper carefully describes — but does not analyze nor draw lessons from — these challenging negotiations. Forthcoming papers will provide analysis and derive general insights from Kissinger’s negotiations to end white minority rule in Rhodesia.

In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.

Management buyouts (MBOs) are an economically and legally significant class of transaction: not only do they account for more than $10 billion in deal volume per year, on average, but they also play an important role in defining the relationship between inside and outside shareholders in every public company. Delaware courts and lawyers in transactional practice rely heavily on “market-check” processes to ensure that exiting shareholders receive fair value in MBOs. This Article identifies four factors that create an unlevel playing field in that market check: information asymmetries, valuable management, management financial incentives to discourage overbids, and the “ticking-clock” problem. This taxonomy of four factors allows special committees and their advisors to assess the degree to which the playing field is level in an MBO, and (by extension) the extent to which a market canvass can provide a meaningful check on the buyout price. This Article then identifies more potent deal process tools that special committees can use to level the playing field: for example, contractual commitments from management that allow the board to run the process; pre-signing rather than post-signing market checks; information rights rather than match rights; ex ante inducement fees; and approval from a majority of the disinterested shares. This Article also identifies ways that the Delaware courts can encourage the use of these more potent devices when appropriate: through the threat of entire fairness review, the application of Revlon duties, and the weight given to the deal price in appraisal proceedings. The result would be improved deal process design in MBOs and improved capital formation in the economy overall.

This article examines the hedge fund investment strategy of buying junior claims of Chapter 11 debtors and playing an activist role in the bankruptcy process. These hedge funds are often accused of rent-seeking by managers. I use a new methodology to conduct the first empirical study of this investment strategy. I find little evidence that junior activists abuse the bankruptcy process to extract hold-up value. Instead, the results suggest that they constrain managerial self-dealing and promote the bankruptcy policy goals of maximizing creditor recoveries and distributing the firm’s value in accordance with the absolute priority rule.

This online publication includes two documents published in a Hastings Center Special Report – NFL Player Health: The Role of Club Doctors. The Special Report was published as part of the Football Players Health Study at Harvard University. The first document is the main article for the Special Report, entitled A Proposal to Address NFL Club Doctors’ Conflicts of Interest and to Promote Player Trust. This article focuses on the principal recommendation of our report, “Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations,” for addressing the conflicts of interest inherent in the current structure of NFL player healthcare, in which club medical staff provide services to both the club and players. The article proposes to “resolve the problem of dual loyalty by largely severing the club doctor’s ties with the club and refashioning that role into one of singular loyalty to the player-patient.” Specifically, club physicians would be replaced by two sets of medical professionals: the players’ medical staff, with exclusive loyalty to the player, and the club evaluation doctor, with exclusive loyalty to the club. Existing ethical codes and legal requirements are not adequate to ensure that players receive health care that is trustworthy and as free of conflicts of interest as is realistically possible, the article says, making structural change necessary. “This structure – which is flawed even in the absence of ethical lapses by any individual club doctor – may substantially contribute to player health concerns,” it concludes. The Special Report also included commentaries from a diverse and highly-qualified group of experts, including: · Arthur L. Caplan, Lee H. Igel, and Brendan Parent, New York University, · Richard Diana, former NFL player and current sports medicine specialist, · Laurent Duvernay-Tardif, current NFL player and offseason medical student, · Ross McKinney, Association of American Medical Colleges and NFLPA consultant, · National Football League Physicians Society, · Mark A. Rothstein, University of Louisville, · Marvin Washington, former NFL player. The commentaries can be found on the Wiley Online Library. This online publication includes our response to the commentaries.

Many people have insisted on an opposition between active choosing and paternalism, and in some cases, they are right to do so. But in many contexts, the opposition is illusory, because people do not want to choose actively. Nanny states forbid people from choosing, but they also forbid people from choosing not to choose. If and to the extent that health insurers, employers, hospitals and doctors forbid that choice, they are acting paternalistically, and that particular form of paternalism might be unjustified. It is true that active choosing has a central place in a free society, and it needs to play a large role in the health care system. But for those involved in that system, as for everyone else, the same concerns that motivate objections to paternalism in general can be applied to paternalistic interferences with people’s choice not to choose. These points have implications for health insurance, for food safety, for wellness programs, and for the idea of "patient autonomy."

This introductory chapter to the edited volume "Nudging Health: Health Law and Behavioral Economics" (I. Glenn Cohen, Holly Fernandez Lynch, Christopher T. Robertson, eds.) introduces the potential benefits, drawbacks, and possibilities for using the tools of behavioral economics - and particularly behavioral law and policy - to improve human health, exploring the policy alternatives to traditional "carrots and sticks" that may be utilized in the health sector. It also provides brief summaries of each chapter in the volume, along with a complete Table of Contents. From the book jacket: Behavioral nudges are everywhere: calorie counts on menus, automated text reminders to encourage medication adherence, a reminder bell when a driver’s seatbelt isn’t fastened. Designed to help people make better health choices, these reminders have become so commonplace that they often go unnoticed. In Nudging Health, forty-five experts in behavioral science and health policy from across academia, government, and private industry come together to explore whether and how these tools are effective in improving health outcomes. Behavioral science has swept the fields of economics and law through the study of nudges, cognitive biases, and decisional heuristics — but it has only recently begun to impact the conversation on health care. Nudging Health wrestles with some of the thorny philosophical issues, legal limits, and conceptual questions raised by behavioral science as applied to health law and policy. The volume frames the fundamental issues surrounding health nudges by addressing ethical questions. Does cost-sharing for health expenditures cause patients to make poor decisions? Is it right to make it difficult for people to opt out of having their organs harvested for donation when they die? Are behavioral nudges paternalistic? The contributors examine specific applications of behavioral science, including efforts to address health care costs, improve vaccination rates, and encourage better decision-making by physicians. They wrestle with questions regarding the doctor-patient relationship and defaults in healthcare while engaging with larger, timely questions of healthcare reform. Nudging Health is the first multi-voiced assessment of behavioral economics and health law to span such a wide array of issues — from the Affordable Care Act to prescription drugs.

Behavioral nudges are everywhere: calorie counts on menus, automated text reminders to encourage medication adherence, a reminder bell when a driver's seatbelt isn't fastened. Designed to help people make better health choices, these reminders have become so commonplace that they often go unnoticed. In Nudging Health, forty-five experts in behavioral science and health policy from across academia, government, and private industry come together to explore whether and how these tools are effective in improving health outcomes. Behavioral science has swept the fields of economics and law through the study of nudges, cognitive biases, and decisional heuristics-but it has only recently begun to impact the conversation on health care. Nudging Health wrestles with some of the thorny philosophical issues, legal limits, and conceptual questions raised by behavioral science as applied to health law and policy. The volume frames the fundamental issues surrounding health nudges by addressing ethical questions. Does cost-sharing for health expenditures cause patients to make poor decisions?Is it right to make it difficult for people to opt out of having their organs harvested for donation when they die? Are behavioral nudges paternalistic? The contributors examine specific applications of behavioral science, including efforts to address health care costs, improve vaccination rates, and encourage better decision-making by physicians.

The Federal Circuit’s ruling that the § 2(a) disparagement provision is unconstitutional, if upheld, could allow for numerous provisions of the Trademark Act to be overturned, dismantling the modern trademark system. The trademark system is premised on evaluating speech and making content-based determinations. Granting a trademark registration requires content-based determinations, though not viewpoint-based, as words are evaluated independent of applicants’ individual viewpoints. In no way does the refusal to register a trademark prevent its use or diminish public debate. Rather than facilitating public debate, a trademark registration is a government-issued document that makes it easier for its owner to suppress the speech of others. A trademark registration is not an entry pass to the forum; it is a right to exclude. Thus in trademark law whether the government refuses registration to a mark owner or it arms that owner with a registration to enforce against other speakers, the government inevitably interferes in someone’s speech. The Federal Circuit’s mistake was to treat a regulatory, benefit-granting program as if it were a ban on speech. Although prohibiting the use of disparaging marks would suppress speech, the government does not suppress speech by refusing to include these marks on the federal register. If a firm wants to use the N-word as its mark, it is free to do so under trademark law. Instead of doctrines focused on banned speech, the unconstitutional conditions doctrine is a more appropriate test for the trademark registration system, and because registration does not attempt to affect a registrant’s speech outside the four corners of the registration it poses no First Amendment problem. The different justifications, functioning, and risks of registration compared to laws punishing speech make application of doctrines about banning speech to the Lanham Act both incoherent and unwise. To rule otherwise would jeopardize much of the structure of trademark law.

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons. In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action. As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.