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The Supreme Court Versus the Construction Zone: The Justices Reject Law-Runs-Out Theory

[O]ur peculiar security is in the possession of a written Constitution. [L]et us not make it a blank paper by construction. Thomas Jefferson, 18031Letter from Thomas Jefferson to Wilson Cary Nicholas (Sept. 7, 1803), in 41 The Papers of Thomas Jefferson 346, 347 (Barbara B. Oberg ed., 2014) …

Bringing the Antiquities Act Into the Modern Age

Abstract. The Antiquities Act empowers the President both to declare national monuments and to reserve the “smallest area” of land compatible with the preservation of such monuments. Modern Presidents have adopted expansive interpretations of those authorities—purporting, for example, to reserve …

The Open Fields Doctrine Is Wrong

Abstract. This year marks the centennial of the Fourth Amendment “open fields” doctrine. That doctrine holds that the vast majority of private land in the United States receives zero Fourth Amendment protection—and thus government officials can enter any land they please and conduct unfettered …

A Report Card on the Impact of Europe’s Privacy Regulation (GDPR) on Digital Markets

Abstract. This Article will evaluate the consequences of the General Data Protection Regulation (“GDPR”) implemented by the European Union (“EU”) in 2018. Despite its aim to bolster user privacy, empirical evidence from thirty-one studies suggests a nuanced impact on market dynamics. While GDPR …

Chevron on Trial: Keynote Address from Paul J. Ray

These remarks were delivered at the 2023 symposium “Chevron on Trial: The Supreme Court and the Future of Agency Authority and Expertise,” held by the George Mason Law Review in collaboration with the C. Boyden Gray Center for the Study of the Administrative State. Light edits have been made …

Stephen P. Halbrook’s Confused Defense of Bruen’s Novel Interpretive Rule

Stephen P. Halbrook is a giant in the field of Second Amendment studies, and I doubt that there is anyone from whom I’ve learned more about the history of the right to keep and bear arms. I was, therefore, surprised to find numerous fallacious arguments and technical errors in his response to my …

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation

Good judges are clear writers. And clear writers avoid legal clutter.1 Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions …

Failure to Accommodate: Assessing the Legacy of Trans World Airlines, Inc. v. Hardison on Working-Class People of Faith

Congress amended Title VII of the Civil Rights Act in 1972 to require employers to accommodate their employees’ religious practices absent the imposition of “undue hardship.” But reliance on Trans World Airlines, Inc. v. Hardison’s interpretation of “undue hardship” to mean anything “more than a …

Unnecessary, Counterproductive, and Unjust: The Case Against Hate-Crime Legislation

High-profile murders and mass shootings have made headlines in recent years where aggressors, motivated by hatred for their victims, are later convicted of hate crimes. But if the Constitution is colorblind, why aren’t our criminal statutes?

New York Times v. Sullivan: Perspectives from History

Sarah Palin’s loss in her libel suit in federal district court against the New York Times on February 14, 2022, over an inaccurate 2017 editorial linking her political action committee to a mass shooting, could result in a challenge to the most significant First Amendment ruling in history…

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