In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States. While various terms have been used...

We develop a theoretical model to analyze the role of judicial review in preventing tyrannies of the majority. The model identifies conditions under which the optimal role of the court may be to allow tyranny of the majority – and the tyrannized minority will be better off as a result. This...

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral...

The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most...

It is accepted that a breach of an international investment agreement does not necessarily constitute a breach or violation of an investment treaty or international law norm applicable between an international investor and a host state. It is common that the adjudication of breaches of these...

Unlike the English rule governing court fees and costs, under which the loser pays litigation costs, and the American rule, under which each party pays its own costs, Israel vests in judges full discretion to assess fees and costs. Given concerns about both the English and American rules, and...

This working paper is the precursor to a chapter I am writing for an edited collection on substantive judicial review. In this working paper, I argue against the two dominant schools of thought in this area, according to which substantive review is either bifurcated (by reference to the...

Patent assertion entity litigation is increasingly being viewed as a pathological condition of the patent system. The large damage awards and settlements that PAEs have been able to extract raise the issue of whether PAEs are particularly good at identifying high-value patents. This paper, based...

The Respect for Marriage Act’s enhanced statutory protections for the right to marry are a legislative response to concerns generated by the Supreme Court’s Dobbs ruling about the future of LGBTQ constitutional rights. Although Dobbs repeatedly promised that its elimination of constitutional...