Articles
Structural Logics of Presidential Immunity
Aziz Z. Huq | PDF
In Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these immunities inhibit criminal indictment or conviction of the president, and indeed the criminal prosecution of a substantial number of subordinate officials, across many imaginable fact-patterns. The Court justified its interventions on consequentialist, and not originalist or precedential, grounds. But its analysis of immunity’s actual and likely effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual’s incentives and behavior to the wider institutional contexts of the executive branch or to the partisan–political environment of electoral competition more generally. Yet presidents inevitably move in, and profoundly shape, both the bureaucratic and the political domain. What, then, are the spillover effects of presidential immunity?
Correcting for the opinion’s myopic focus, this Article develops a more comprehensive, consequentialist analysis of presidential immunity’s impact on the democratic constitutional order in light of institutional dynamics. To this end, it draws upon political-science and game-theoretical models to isolate a series of “structural logics” of presidential action. These structural logics are multistep causal pathways by which a constitutional rule can reshape not just presidents’ behavior, but the incentives and actions of both executive-branch and elected officials. Such logics operate without regard to who inhabits the Oval Office at a given moment—rendering the ensuing account general, rather than specific to a given office holder. They are thus durable tendencies of institutional action.
This wider structural accounting of presidential immunity suggests that the Court’s ruling does not meaningfully advance the principal good identified by the majority—that is, an energetic executive branch as a whole—and may indeed have a perverse side-effect of inhibiting presidential policymaking capacity. On the other side of the ledger, immunity severely compounds risks of fiscal corruption and criminal partisan entrenchment in both the Oval Office and across the larger executive branch. This Article’s comprehensive accounting aims first to suggest the analytic utility of a structural-logic lens as a general matter for evaluating public-law questions, but more narrowly intimates that the Court’s conception of presidential immunity may land a significant, self-inflicted blow upon democratic ordering.
What Can Legal Knowledge Do for Access to Justice?
Kathryne M. Young & Heidi H. Liu | PDF
Worker misclassification is one of the most pervasive and harmful civil justice problems in the U.S. The inaccurate and illegal categorization of workers as independent contractors costs U.S. workers billions of dollars annually in overtime pay and health benefits—a problem that has become even more pervasive with the expansion of the gig economy.
Yet, worker misclassification is only one dimension of the broader “access to justice crisis” in the United States—the unsolved legal problems and unmet legal needs that touch most people’s lives and livelihoods at many points, but especially impact low-income people and people of color. These legal issues range from consumer overbilling and insurance disputes to unsafe housing conditions and benefits denials. And just like worker misclassification, the onus for redress of these problems usually falls to the people experiencing them. For decades, legal scholars assumed that the main cause of the access to justice crisis was a deficit of affordable lawyers. In more recent years, that hypothesis has been disproven, and a chief barrier turns out to be the simple fact that people do not think about most common legal problems as “legal” in nature. The next step, then, can seem obvious: raise legal awareness. Indeed, “know-your-rights” campaigns and legal self-help tools are predicated on the assumption that knowledge leads to power. But is legal knowledge enough to spur legal action?
To test this crucial question, we leverage an original, nationally representative dataset of over three thousand people living in the U.S. We use the context of worker misclassification to experimentally test how legal knowledge shapes the actions that people say they would take to solve a problem. We find that although legal knowledge increases legal action, its effects are limited: Even when they knew they had been treated illegally, only one in four respondents would consider pursuing legal help.
Yet legal knowledge also catalyzes problem-solving in an unexpected way: It empowers people to consider more varied solutions to their own misclassification. Specifically, legal knowledge reduces two key cognitive and affective barriers to action: self-blame and futility. We explain these findings’ implications for ending worker misclassification and helping solve the access to justice crisis.
Notes
No More “Vague Handwaving”: Applying the Overlooked “Person Aggrieved” Provision of the North Carolina Administrative Procedure Act to Election Litigation
William Allred | PDF
The North Carolina Administrative Procedure Act requires claimants against state agencies to be “persons aggrieved,” meaning they have been “affected substantially” in their “person, property, or employment” by the challenged agency action. But in the 2024 general election, North Carolina state courts largely ignored this requirement, permitting plaintiffs to sue based on allegations of harm that some considered to reflect no more than “vague handwaving about election integrity.” This fact-light litigation strained state resources and reduced ballot access. But the solution is not so simple as just reminding courts that a statute exists. State appellate courts have never explained how the “person aggrieved” provision should apply to elections, so it has previously been unclear what plaintiffs challenging electoral regulations must show to satisfy the NCAPA’s “person, property, or employment” formulation. This Note dispels the confusion. It conducts the first ever comprehensive survey of the history and case law surrounding the “person aggrieved” provision and extrapolates how that provision should apply to elections. It concludes that to challenge electoral regulations under the NCAPA, the plaintiff must be a political party or candidate and must show that the challenged regulation stands to substantially affect the outcome of a specific race.
From Womb to Wallet: Recognizing the Placenta’s Lawful Role in the U.S. Marketplace
Christina Moss | PDF
Modern biotechnology has transformed the human placenta from medical waste into a lucrative commercial resource. Placental tissue is used across industries—from cosmetics touting antiaging effects to pharmaceuticals employing it as a raw material for wound therapies. Yet while hospitals and biotechnology companies profit from this growing placenta economy, the women from whom the placentas originate receive neither compensation nor complete information. Federal law provides little guidance, and most states lack explicit regulations, producing a legal vacuum that allows stakeholders to exploit ambiguity. For-profit companies routinely frame their placenta procurement as altruistic donation rather than commercial exchange, citing the federal law to justify nonpayment.
Although placentas function as temporary organs inside the womb, this Note contends that the placenta’s characteristics align it more closely with other lawful markets in biological materials such as plasma and gametes than with organs that federal law forbids from sale or compensated transfer. Unlike those vital organs, placentas are naturally and necessarily expelled from the body during childbirth. Because the law already permits compensation for analogous body products such as plasma and gametes, placentas should receive equivalent treatment as legitimate objects of market exchange for which donors may lawfully receive compensation.
To remedy this inequitable framework, this Note proposes amending the National Organ Transplant Act to expressly exclude placentas from its scope. Such a reform would align federal law with the realities of the modern bioeconomy and affirm women’s rightful stake in the economic value of the materials their bodies produce—formalizing the placenta’s legal and economic transformation from afterbirth to asset.
Fair and Balanced: Why We Need a Federal Anti-SLAPP Law for Good-Faith Journalism
Christian H. Ross | PDF
Strategic lawsuits against public participation (SLAPPs) pose a serious threat to free expression, often targeting journalists and media outlets to intimidate or silence critical reporting. Many states have adopted anti-SLAPP statutes that provide procedural protections for speech to deter meritless, speech-chilling suits. But not all states have such laws, resulting in a patchwork of uneven speech protections across the United States. Even where such laws exist, SLAPP plaintiffs can often evade them by forum-shopping or removing to federal court, where state anti-SLAPP provisions do not always apply. In the absence of a federal anti-SLAPP law, journalists across the country remain vulnerable to costly litigation that can chill democratically vital speech. A uniform federal solution is needed—yet if crafted too broadly, a federal anti-SLAPP law could inadvertently shield even intentionally false or malicious speech, undermining legitimate defamation remedies and public accountability.
This Note argues that Congress should enact a federal anti-SLAPP statute anchored in a “good-faith journalism” standard to strike the proper balance. Good-faith journalism means speech that a reasonable person would believe is a direct presentation of facts or a description of events produced through deliberate action to report in accordance with established journalistic professional and ethical standards. By conditioning anti-SLAPP protections on good-faith journalism, this tailored approach navigates First Amendment constraints on speech regulations and ensures that such a federal anti-SLAPP law neither over-protects low-value falsehoods nor under-protects valuable, factual reporting. A federal anti-SLAPP law built on good-faith journalism would fortify freedom of expression by safeguarding the press’s essential role in democracy, while preserving accountability by denying special protection to those who flout journalistic integrity through intentional or reckless falsehoods.