For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate asks whether policy-making or regulation by litigation is more or less socially...

A lie involves three elements: deceptive intent, an inaccurate message, and a harmful effect. When only one or two of these elements is present we do not call the activity lying, even when the practice is no less morally questionable or socially detrimental. This essay explores this area of...

Although a great deal of sexual harassment takes place without words, even more of it does not. Whether it be the words that are used to make the kind of "quid pro quo" proposition that characterizes the classic if-you-sleep-with-me-you-will-not-get fired form of sexual harassment, or the...

It is commonly thought that the United States is a highly legalistic nation, and as a result it is commonly thought as well that official disobedience of law is publicly and politically disfavored. Yet when we look at numerous contemporary and not-so-contemporary examples, we discover that...

In PGA Tour, Inc. v. Casey Martin, the Supreme Court of the United States upheld the right of the professional golfer Casey Martin to use a golf cart while playing in professional golf tournaments, despite the PGA rule requiring walking. In concluding that the Americans With Disabilities Act...

Since Herbert Wechsler’s famous article, the topic of neutrality has played central stage in many debates about judicial review specifically and constitutional law generally. On closer inspection, however, it turns out that the heading of “neutrality” encompasses not one but four different...

Both criminal and regulatory law have traditionally been skeptical of what Jeremy Bentham referred to as evidentiary offenses – the prohibition (or regulation) of some activity not because it is wrong, but because it probabilistically (but not universally) indicates that a real wrong has...

For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate asks whether policy-making or regulation by litigation is more or less socially...

First Amendment doctrine has traditionally been carved along conceptual rather than institutional lines. Legal categories like “public forum,” “content-neutral,” and “defamation” have dominated the doctrine, with the general understanding being that it was the nature of the speech or...