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Suppose you have a domestic economy-class airline ticket that you can no longer use. In the 1980s and early ’90s, there was a secondary market in domestic airline tickets, carried out openly in newspaper classifieds. Though many tickets were nominally nontransferable, back then, the airlines didn’t check every passenger’s name. Problem solved. But now, American, Delta, and United will charge you...

This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent...

Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists...

This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent...

This comment presents a new legal framework for regulation of initial coin offerings that meets the interests of the SEC, investors, and the innovative companies in the cryptocurrency industry.

The article calls attention to the latent instability of constitutional norms and theorizes the structure of constitutional norm change. It argues that, under certain conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. Thus, President Trump’s flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex...

Scholars, judges, and policymakers have observed that American constitutional democracy depends on far more than the constraints imposed by judicially-interpreted formal legal arrangements. Drawing on judicial doctrine, political science, and the history of American institutions since the end of World War II, this article explores what it means to take seriously a more expansive, less court...

Long before there was a U.S. Constitution for the American republic, there were treaties among Indian Nations and between Indian Nations and colonial governments reflecting ideals of consultation and negotiation among self-determining peoples. Using negotiations between the United States and the states a point of comparison, this article works through what it might mean to think about...

Populism is primarily defined in our public discussions by the loudest self-identifying populists active in democratic politics at the moment. Populism has therefore often been treated as a concept merging not just antiestablishment sentiments, but also authoritarian and xenophobic sentiments. The article argues the antiestablishment part of populism can be empirically and logically unbundled...

The article contemplates how constitutional designers should address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government.