Faculty Working Papers

Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Research Paper Series

Recent Working Papers:

Fake News: Why the FTC’s Campaign Against “Big Tech Censorship” is Wrong on the Facts and the Law

04-2026 Thomas A. Lambert, James C. Cooper

The U.S. Federal Trade Commission’s (FTC’s) recent campaign against “Big Tech censorship” of conservative viewpoints is unjustified as a matter of policy and likely to fail as a matter of law. The FTC’s policy argument for intervention rests on four factual premises: (1) that major technology platforms systematically and unjustifiably sup-press user-generated content that expresses conservative viewpoints; (2) that such sup-pression harms consumers by “drying up access to ideas”; (3) that censorship of conservative content is a manifestation of anemic competition among platforms; and (4) that intervention by the FTC would increase opportunities for expression and enhance market output. Each of those factual premises is unsound. A survey of the empirical literature demonstrates that right-leaning content is more often amplified than sup-pressed by leading technology platforms and that disparities in enforcement are better explained by differences in engagement patterns and misinformation sharing. Moreover, even if some platforms did suppress particular viewpoints, there is no evidence of marketwide “drying up” of ideas—the harm FTC leadership has identified as central to its interventionist rationale. Nor is content moderation a result of deficient competition among platforms; it is instead a means by which platforms compete, accommodate heterogenous preferences of users and advertisers, overcome network effects, and expand opportunities for citizens to broadcast their ideas to large groups of people. Finally, there is little reason to believe that FTC intervention would improve upon the status quo, as each of the alternative content moderation approaches the Commission might impose would leave users worse off than they are under the current state of affairs. The policy argument for FTC intervention is thus quite weak.

When it comes to the law, the FTC’s prospective enforcement theories face serious—and likely fatal—obstacles. Efforts to penalize or coerce technology platforms for their content-moderation decisions raise substantial First Amendment concerns, as recent Supreme Court precedent makes clear that platforms’ editorial judgments about what speech to host, promote, or demote are protected expressive activity. Even apart from those constitutional limits, the FTC would likely fail because the statutory provision it claims the technology platforms are violating—the FTC Act’s prohibition on “unfair methods of competition” and “unfair or deceptive acts or practices”—provides no viable basis for liability. FTC liability theories based on inter-platform agreements, advertiser boycotts, agreements with the government, and unilateral exclusionary practices fail to establish an unfair method of competition. Nor can the Commission meet the legal tests for “deception” or “unfairness” and thereby establish an unfair or deceptive act or practice. An FTC enforcement action based on alleged Big Tech censorship of conservatives is thus likely to fail as a matter of law.

When Tax Law, Textualism, Property Law, and M&A Law Converge: AbbVie Inc. v. Commissioner of Internal Revenue

04-2026 Donald J. Kochan

This article lies at an intersection of tax law, textualism, property law, and mergers and acquisitions law and policy. A June 2025 U.S. Tax Court decision interpreted International Review Code Section 1234 to determine that “break-up fees”— contractual fees agreed to be paid when certain merger and acquisition deals break down—as “ordinary business expenses.” They could not be capital losses—defined as losses “with respect to property” because the managers were making these commitments and the managers are not owners of the corporation. The decision makes sense – because it respects the text, is consistent with principles of authority and nemo dat non quod habet at the heart of property law, and because it creates a more welcoming treatment of merger-based risks, meaning it encourages merger negotiations something which is socially beneficial. The U.S. Tax Court got it right. And the IRS decision not to pursue an appeal was both wise and beneficial the vitality of the merger market.

Zombie Antitrust: Is Robinson-Patman a Dead Law Walking?

04-2026 Timothy J. Muris

By the 1970s, a nearly unanimous Antitrust community had concluded that the Federal Trade Commission‘s (FTC) enforcement of the Robinson-Patman Act perverted Antitrust law. FTC enforcement declined and then was abandoned entirely, with the Supreme Court declaring in 2006 that lower courts should avoid applying Robinson Patman in ways “geared more to the protection of existing competitors than to the stimulation of competition.” Shattering this consensus, the Biden FTC brought the first two government cases in many years (one continued by the Trump FTC). The Biden Commissioners claimed that the old consensus both misunderstood the nature of the statute and was based on faulty reasoning of the Chicago school and the Reagan Administration.

The revivalist story of Robinson Patman’s history is fictitious, denying the statute’s protectionist origins. Only 15 days after the Supreme Court struck down the government’s attempt to end the Great Depression by cartelizing business to raise prices, Wright Patman introduced “The Wholesaler Grocer’s Protection Act,” written by the wholesaler grocer trade association and seeking the same goal in a different guise. To overcome significant opposition, including from the Roosevelt Administration, the actual legislation included new defenses and greater complexity and ambiguity. The result was, as historian Ellis Hawley concluded, “a vague law,” the “actual effects of which would depend on its administration and interpretation.” Nevertheless, the FTC through the 1960s took an aggressive competitor-protection approach to enforcement. An overwhelming consensus developed that the Act was used to protect competitors rather than competition and consumers. Beginning in 1970, the FTC abandoned Robinson Patman as the center of its competition universe, long before the Reagan Administration.

Surprisingly, revivalists also claim no evidence shows that Robinson Patman enforcement was anticompetitive, ignoring both business responses to the Act and the many studies of problematic FTC enforcement. This report for the Competitive Enterprise Institute details numerous, well-known examples of enforcement and policy that raised cost and reduced competition. For example, the FTC encouraged direct competitors to share their prices; it discouraged selective price cutting in industries most susceptible to tacit or explicit collusion; and it discouraged small businesses from cooperating to compete successfully with larger ones. The overwhelming experience of the businesses, attorneys, and others most exposed to Robinson Patman is compelling evidence that led them to revolt and conclude that FTC enforcement was fundamentally inconsistent with antitrust’s purpose of protecting competition and consumers.

Finally, in a companion piece summarized here, “Stop Making Sense: Reviving the Robinson-Patman Act, and the Economics of Intermediate Price Discrimination,“ SSRN-6299819, Bruce Kobayashi and I discuss current economic literature, both theoretical and empirical, regarding intermediate price discrimination. Economists continue to debunk the economic incoherence of a favorite argument of revivalists, used 90 years ago and resurrected today, that discounts to large retailers are only possible because small firms pay more. Modern theoretical justifications of mandating uniform pricing show beneficial results are possible, but only in narrow circumstances that provide no practical or policy guidance. Moreover, when key institutional features of pricing that large firms actually use are incorporated, the results support using, not restricting, differential pricing. Not surprisingly, empirical studies fail to support revival. Causal evidence of harm from intermediate price discrimination is nonexistent, and indirect evidence is consistent both with the benefits of differential pricing and the high costs of the efforts of the FTC and others to impose uniformity.

Injury in Fact: Measuring the Causal Impact of Spokeo v. Robins on Judicial and Litigant Behavior

03-2026 James C. Cooper, Bruce Kobayashi, Sasha Romanosky

Spokeo v. Robins represented a potentially sweeping change to standing doctrine, but its lack of clarity left its ultimate impact on the law uncertain. Several studies have measured Twiqbal’s impact, but to our knowledge, Spokeo’s impact has received no empirical attention despite its potential to nullify statutory requirements. We fill this gap by examining filings from Ninth Circuit cases. We employ a “straddle design” to control for filing selection, comparing a treatment sample exposed to Spokeo with a control sample. We find evidence of large defendant motion selection and early settlement selection. While we find that 25 percent of cases dismissed under Spokeo would have been negatively affected compared to the counterfactual, we find mixed evidence that Spokeo actually changed the legal standard. The impact of Spokeo (both selection and judicial treatment) is confined to class actions, with any judicial treatment effects primarily concentrated on TCPA cases.

The Right to Use Private Property

03-2026 Ilya Somin

The right to use is a central element of property rights. But it is an under-analyzed aspect of the right to private property protected by the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever it takes “private property” for public use. Modern Supreme Court jurisprudence wrongly provides only modest protection for the right to use. This chapter makes the case for a strong right to use under the Takings Clause.

Part I outlines the importance of the right to use property in the real world. For most types of property, that right is an essential element of the “bundle of sticks” possessed by the owner, often even the most important element. That point applies to both property in land, and personal property. Part II makes the originalist case for a strong right to use under the Takings Clause. William Blackstone—a major influence on early American conceptions of property law and on the leading American Founders—regarded the right to use as a central element of property rights. The same was true of leading court decisions and legal theorists around the time when the Takings Clause and the rest of the Bill of Rights became “incorporated” against state and local governments in 1868. Part II also gives a brief overview of the “police power” exception to Takings Clause liability and its relevance to the right to use. That exception would deny compensation in cases where the use restricted poses a significant threat to public health or safety. But it does not do so in other situations, including the vast majority of exclusionary zoning restrictions on housing construction.

Obviousness

03-2026 Donald J. Kochan

This Essay defends the virtue and utility of stating the obvious from time to time, even inside rigorous academic analysis. And, like Professor Orin Kerr’s A Theory of Law, it aims to provide a citable source for obvious statements and for the contextual utility of stating obvious things. It fills a gap, because it may be impossible to find a source for obvious claims. As a solution, an author can cite to this Essay to (1) make a contestable assertion that the point is obvious and need not cite any other sources; and (2) to defend the scholarly utility of sometimes making obvious statements in academic work. The Essay also explains that the citation to it can serve a deliberative function. Such citation allows an author to clarify that they are staking a transparent claim that the statement to which this citation is appended is an obvious one, thereby directly welcoming peer criticism or contrasting challenge that the claim is instead non-obvious.

Comment to Consumer Financial Protection Bureau on Advance Notice of Proposed Rulemaking on Personal Financial Data Rights Reconsideration

03-2026 Todd J. Zywicki

On August 22, 2025, the Consumer Financial Protection Bureau announced an Advance Notice of Proposed Rulemaking on Personal Financial Data Rights Reconsideration, aka, the “1033 Rulemaking.” This Comment, filed on October 21, 2025, addresses the four questions posed by the CFPB.

This Comment argues that the rulemaking provides an opportunity to enact a regulatory structure that can benefit consumers, competition, innovation, and financial inclusion, especially for consumers historically underserved by the traditional financial system. In addition, by creating an efficient, workable regulatory structure, the rule can increase consumer data privacy and security by eliminating the need for cumbersome workarounds like screen-scraping practices that impose costs on financial institutions and increase the risk of data breaches for consumers.

The Comment starts by observing that the data in question is not “owned” by either consumers or banks but instead is jointly produced by consumers and providers. As a result, instead of focusing on who “owns” the data, regulatory policy should focus on consumer’s decision-making over how their data is used and preventing misuse of their data, instead of unsolvable questions of data “ownership.”

Regarding the four specific questions posed by the CFPB, the Comment advocates for a broad definition of “representative” that includes third-party data aggregators and fintech providers, noting that narrow interpretations ignore the benefits consumers derive from seller-driven competition. It criticizes the high access fees demanded by large banks as a manifestation of an “anticommons” problem designed to extract monopoly rents and stifle rivals, suggesting instead that fees should be limited to marginal costs or ideally remain at a baseline of zero. On the issue of data security, clear, API-based sharing protocols are far safer than the ad hoc workarounds, such as “screen scraping,” that emerge when consumer demand for portability is blocked. Finally, the Comment urges the CFPB to move away from archaic “notice and consent” models toward a “tort approach” that focuses on preventing the actual misuse of information while facilitating legitimate uses that increase consumer welfare.

Litigation Without Romance: An Incentives Story

03-2026 Donald J. Kochan

It is a romantic notion to believe that the motivations and drivers of litigation are solely grounded in the pursuit of justice, unaffected by the realities of human nature—including individuals pursuit of self-interest, incentives, interest in identifying and willingness to take advantages within systems that might lead to gains, and the temptations to invest in shaping doctrines and institutions to create new routes or conditions to better advance their interests. Borrowing from James M. Buchanan’s Noble-prize winning work on public choice theory and his characterization of those insights as being a tale of “politics without romance,” this Article calls for adopting a view of “litigation without romance,” to coin a phrase. We should examine litigation with the same skeptical eye that public choice has demanded of legislation, understanding that it is a venue for human activity that thus naturally is not devoid of human incentives.

While the court system is designed to be available for the redress of wrongs, its ability to generate financial gains independent of, or in excess of, compensation for wrongs creates an environment where individuals are incentivized to invest in litigation as a means for profit or to achieve redistributive effects. It is basic economics to predict that individuals will invest in outcomes that are cost beneficial. This Article examines a few manifestations of these incentives within the contemporary litigation system.

Church Autonomy and Interlocutory Appeals

02-2026 Lael Weinberger, Branton Nestor

The church autonomy doctrine protects the freedom of religious institutions to decide for themselves, free from state interference, matters of church government, faith, and doctrine. While church autonomy is a well-established doctrine, it presents challenging questions that split scholars and divide courts—particularly about how church autonomy interacts with civil procedure. One puzzle that has arisen repeatedly in recent years is when a denial of a church autonomy defense can be appealed. In multiple cases arising in different circuits—involving suits by removed ministers, fired teachers, and disgruntled tithers—a religious institution asserted church autonomy as a defense to a lawsuit at an early stage (motion to dismiss, summary judgment). But in each case, the district court denied the motion, allowing the case to go forward against the church. And so the church sought to make an interlocutory appeal—an appeal before the case is over. Essentially every court of appeals in the last few years to address the question—the Second Circuit, the Seventh Circuit, the Tenth Circuit, the D.C. Circuit—has said that the interlocutory appeal is unavailable. They reason that the church autonomy doctrine does not generally protect against the litigation process itself, and that any harm to church autonomy can be addressed at the end of the litigation through an ordinary appeal.

This Article argues that these courts are wrong. Under the existing law applied by the courts to decide when interlocutory review should be available, church autonomy makes the cut for permitting interlocutory appeal. Existing First Amendment doctrine is best read as protecting religious institutions from judicial review and inquiry into matters of church government, faith, and doctrine reserved to competent church authorities. Judicial control of these matters violates nonestablishment principles and contravene free exercise protections—and it is the very process of judicial review and inquiry, not just the end result, that can violate the Constitution. If church autonomy doctrine isn’t enforced at the front end of the litigation, the error cannot be fixed at the end of the litigation. If this is correct, then two civil procedure measures would be appropriate: First, denials of a church autonomy defense at the outset of litigation should be subject to interlocutory review. Second, courts should use their discretionary tools to manage litigation and to draft amendments to the appellate rules that recognize the ways that church autonomy protections will be affected by litigation.

Church autonomy’s limitations on the exercise of judicial power by civil courts over matters of church government, faith, and doctrine have important implications for civil procedure—including interlocutory appeals. Church autonomy limits the process of judicial review by civil courts over church matters. In particular, it limits the power of civil courts to second-guess religious decisions by religious authorities, and it limits their power to subject those decisions to judicial scrutiny. Because the constitutional harms from such judicial review cannot be undone on the back-end, church autonomy should be subject to interlocutory appeal under current law. In doing so, civil procedure can respect foundational constitutional principles—protecting religious institutions in their appropriate sphere.

The Origins of Church Autonomy: Religious Liberty After Disestablishment

02-2026 Lael Weinberger

Many of the Supreme Court's major cases on religious liberty in the last decade have featured religious institutions rather than individuals as the key actors. The Court has endorsed a "church autonomy" doctrine which protects religious institutions' ability to self-govern. In the name of church autonomy, the Court excepted religious institutions from what are apparently otherwise neutral and generally-applicable laws. Critics have argued that this is a novel move, out of step with the Court's precedents, and without deeper historical support-the critics claim that religious liberty in the early republic was not understood to protect church government from regulation by the civil government. Meanwhile, proponents of a robust church autonomy doctrine (including the Supreme Court) have traced the doctrine's antecedents to political theory and theology going back into the medieval period-but without devoting equal attention to the history of religious institutions in early America.

This article revisits the origins of church autonomy in American law. Rather than a late addition to the church-state conversation, church autonomy was one of the very first principles of church-state relations that American judges proclaimed in the aftermath of disestablishment. Most of the original American colonies had established churches. The United States Constitution prohibited any national establishment of religion, and the states with established churches gradually ended their legal establishments in the early republic. As judges in state courts wrestled with how to honor the principles of religious freedom and disestablishment in the following several decades, they gradually coalesced around a general principle to guide their decisions: matters of internal church governance should be respected by civil courts. In essence, the principle was church autonomy.

Moving from the descriptive to the normative, this paper argues that this history provides a solid foundation for church autonomy in American law. The historical grounding matters for a variety of normative constitutional approaches, as history is relevant to originalism and evolving-constitution theories alike. The history also provides insight into some of the current questions about church autonomy doctrine. The early history of church autonomy presents alternative approaches to contemporary doctrine on issues of the doctrine's scope, procedural character, and rationale.

Stop Making Sense: Reviving the Robinson-Patman Act and the Economics of Intermediate Price Discrimination

02-2026 Bruce Kobayashi, Timothy J. Muris

We examine the modern theoretical and economic literature analyzing intermediate good price discrimination, and its bearing on recent attempts to revive enforcement of the Robinson-Patman Act. While economists have replaced economically incoherent arguments with internally consistent theoretical models that show that it is possible for intermediate good price discrimination to decrease welfare, the literature has been much less successful in providing theoretical guidance or empirical evidence on whether and when these possibility theorems apply to potential real-world cases outside of the academic blackboard. When models instead incorporate key institutional features of pricing that large firms actually use, such as non-linear pricing and bargaining, economic analyses find that restricting intermediate good price discrimination increases input prices and reduces welfare.

The lack of useful guidance from models and empirical evidence suggesting potential harm is particularly relevant when one considers the history and content of Robinson-Patman. Like the economic literature, neither the statute nor its history at the Federal Trade Commission (FTC) provides useful guidance for enforcing the statute consistent with modern antitrust principles. The statute's protectionist origins (although not necessarily it's actual language) and the FTC’s misguided application show instead that enforcement had little purpose other than to try to constrain innovation in manufacturing and retailing by large, efficient firms. The companion piece to this paper, Zombie Antitrust: Is Robinson Patman a Dead Law Walking? details the Act’s history, including the reasons for disuse after decades of aggressive FTC enforcement and the recent efforts at revival. While cases “targeted” towards harmful discriminatory input pricing sound useful in theory, such a strategy appears impractical. Moreover, for any harms from discriminatory prices identified by the modern economic literature, the antitrust law already can apply a nuanced policy that considers both the benefits and costs of challenged practices under existing Sherman and Clayton Act precedent. Thus, there is little marginal benefit from reviving the Act, a statute ill-suited to such a task.

Trade Associations, Group Boycotts, and the Collective Use of Market Power

02-2026 John M. Yun

Trade associations can generate substantial procompetitive benefits by supplying industry expertise, developing standards and certifications, and mitigating information asymmetries through the collective knowledge of its members. At the same time, vesting an organization with authority to represent the shared interests of marketplace rivals creates an inherent tension. There is often a fine line between cooperation that benefits consumers and collusion that harms them, including through group boycotts.

This Article examines the treatment of group boycotts under the antitrust laws and proposes an economically grounded framework for categorizing distinct types of cases to assess when such conduct constitutes an antitrust violation. This categorization is based on the nature of the restraint and the level of the supply chain at which the effects are felt. A central contribution of this approach is to clarify that trade association conduct—including group boycotts—often involve different objectives, can produce different competitive harms, and can implicate different relevant markets along a supply chain. The Article further considers how the presence of a multisided platform affects the competitive analysis in trade association disputes.

The Article then applies the framework to X Corp. v. Global Alliance for Responsible Media (GARM), a recent antitrust challenge against a coalition of advertisers. X alleges that GARM unlawfully conspired, under the guise of brand-safety standards, to orchestrate an advertising boycott of X. GARM, by contrast, contends that any advertiser withdrawals involved only a subset of members, were not coordinated, and reflected independent, unilateral decisions driven by brand-safety concerns. Further, GARM contents that its actions are protected speech under the First Amendment. This Article concludes with an assessment of the merits of X’s complaint and the validity of GARM’s First Amendment defense under guiding Supreme Court precedents.

Judicial Nominations in President Trump’s Second Term: Form and Substance

02-2026 Robert Luther III

Drawing on my experience as a former Trump White House lawyer responsible for judicial nominations during the initial two years of President Trump’s first term, this essay will address three dimensions of the judicial nominations landscape at the start of his second term: (1) federal judicial selection in recent years; (2) the claims about what judicial selection will purportedly look like during President Trump’s second term; and (3) as someone with some visibility into the current White House Counsel’s Office’s process, what I anticipate judicial selection will actually look like during President Trump’s second term.

Three False Rumors About Federal Judicial Clerkships

01-2026 Robert Luther III

Since 2019, over 200 of my former students secured federal judicial clerkships. Over sixty Scalia Law graduates will commence federal clerkships from 2025-28, and we secured four U.S. Supreme Court clerkships through the 2022-26 terms. During the 2024-25 term, Scalia Law had over seventy graduates clerking for judges across the country, including thirty-two on federal courts, with fifteen of them on the U.S. Courts of Appeals and one on the U.S. Supreme Court. Because Scalia Law graduates only around 130 students per year, it’s one of the top law schools in the country for clerkships by percentage of class. And that certainly applies if you want to clerk for a judge appointed by President Donald J. Trump—trust me. That said, I’d like to bury three myths about clerkships that I hear from students every year—but never seem to die.

Time for a New Restatement

01-2026 Thomas P. Gallanis

In February 2025, the author wrote by email to the American Law Institute’s Director, Judge Diane Wood, encouraging the ALI to consider whether the time had come to undertake a new Restatement of the law of trusts. Director Wood replied swiftly and kindly that “[t]his possibility had not been on my radar” but that the ALI would begin thinking about “the best way to take a closer look at your suggestion.” The ALI now is considering the idea.

This brief article is aimed at building support for a new Restatement. The article also examines whether a new Restatement of the law of trusts might be bundled with a new Restatement of the law governing wills and other donative transfers.

Facilitating Fintech’s Future: How Congress and Regulation can Support Innovation in Fintech, Earned Wage Access and Buy Now, Pay Later Products

01-2026 Todd J. Zywicki

Technological innovation has long been a central driver of competition, consumer choice, and financial inclusion in U.S. consumer financial services. From the advent of standardized credit reporting and automated underwriting to online banking and digital payments, innovation has repeatedly expanded access while reducing costs and discriminatory practices. Today, fintech represents the latest and most consequential wave of this evolution. While some innovations, such as artificial intelligence and alternative data underwriting, are genuinely novel, others, including Earned Wage Access (EWA) and Buy Now, Pay Later (BNPL), are modernized versions of well-established financial practices delivered more efficiently through technology.

This article argues that fintech’s benefits accrue most strongly to consumers historically underserved by the traditional financial system, including younger, lower-income, rural, and minority households. Drawing on a broad range of empirical research, it shows that fintech products increase access to credit, reduce reliance on high-cost alternatives, lower transaction costs, and mitigate demographic disparities in pricing and approval rates. Evidence indicates that EWA helps workers smooth income volatility, avoid overdraft fees and payday loans, and improve job retention. BNPL enables consumers to manage liquidity and spread the cost of purchases, usually with no interest, without increasing overall financial distress. Moreover, while critics have expressed concern that both EWA and BNPL could lead to increased financial distress, empirical evidence to date indicates that these speculative concerns are unfounded.

Despite these benefits, fintech innovation faces growing regulatory risks. The article contends that inconsistent and overly burdensome state regulation, arbitrary asset thresholds, and misguided restrictions threaten competition and consumer welfare by raising costs and limiting choice. It concludes that a coherent national regulatory framework—emphasizing competition, proportional oversight, and evidence-based intervention—is essential to preserve fintech’s promise. Properly designed regulation can protect consumers while allowing innovation to flourish, particularly for those with the fewest existing financial options.

Title VI Hostile Environment Law in the Shadow of Antisemitic Violence

01-2026 David E. Bernstein

Following Hamas’s October 7, 2023 attack on Israel, American universities have faced a wave of Title VI complaints alleging deliberate indifference to antisemitic harassment of Jewish students. Many of these claims arise in the context of anti-Israel campus protests featuring rhetoric that, while deeply offensive and often perceived as endorsing violence, is ordinarily protected by the First Amendment. Courts and commentators have increasingly concluded that such protected speech cannot form any part of a cognizable hostile-environment claim. This Article argues that this conclusion rests on a fundamental misstatement of both Title VI doctrine and the nature of the claims being advanced.

The Article contends that Jewish students’ post–October 7 claims do not seek to impose liability for protected political expression. Rather, they allege that universities have failed to address unprotected antisemitic conduct—including physical assaults, threats, intimidation, vandalism, unlawful encampments, and selective nonenforcement of neutral conduct rules—that materially interferes with access to education. Within this framework, protected speech plays a limited but legitimate role: not as actionable harassment, but as contextual evidence bearing on whether a university’s inaction in the face of unprotected conduct reasonably gives rise to fear of violence and intimidation.

Drawing on extensive documentation of antisemitic assaults and threats on campuses and in the surrounding society, the Article argues that the “reasonable person” standard governing hostile-environment claims must be applied in light of contemporary conditions. When violent rhetoric coincides with lawless behavior and administrative indifference, Jewish students’ fear for their physical safety cannot be dismissed as hypersensitivity to ideas. Properly understood, Title VI permits—indeed, requires—universities to enforce neutral conduct rules to mitigate hostile environments without suppressing protected speech. Courts therefore err when they dismiss such claims at the pleading stage by conflating demands for physical security with demands for ideological conformity.

The Misuse of the Bayh-Dole Act and the Folly of Price Controls on Drug Patents

11-2025 Adam Mossoff

This chapter in Bring Medicines to Life: How Intellecutal Property Enables Innovation in the Life Sciences analyzes and critiques the “price control theory of the Bayh-Dole Act,” demonstrating that this decades-long campaign to use the Bayh-Dole Act to impose price controls on drug patents is both statutorily unjustified and policy folly. First, it provides novel statutory analyses of the Bayh-Dole Act to show once again that the text, structure, and function of the march-in power in § 203 precludes the National Institutes of Health (NIH) from using it to grant licenses to generic drug companies to reduce prices of prescription drugs. Second, it addresses the economic errors underlying this price-control agenda even when the NIH is legally authorized in other provisions of the Bayh-Dole Act to impose conditions in its grant agreements and licenses, such as affordability mandates or reasonable price restrictions. Invoking this other statutory power in the Bayh-Dole Act, the Biden Administration adopted an “affordability” mandate in all licenses of NIH-owned patents in early 2025, and the Trump Administration officially implemented this policy on October 1, 2025. But this is policy folly. Contrary to conventional wisdom, almost all R&D funding for prescription drugs is from private sources. Given this economic data on drug R&D, a similar price-control policy adopted by the NIH failed. In 1989, the NIH adopted a “reasonable pricing” condition in its research grant agreements and licenses for any resulting prescription drug. This policy resulted in a collapse of NIH research agreements and licenses. NIH Director Varmus thus withdrew the “reasonable pricing” mandate in 1995, recognizing that it was contrary to the commercialization goals of the Bayh-Dole Act. The 2025 “affordability” mandate in NIH licenses will similarly undermine the commercialization of biomedical innovations created by NIH scientists. In sum, price controls on drug patents contravene the Bayh-Dole Act’s statutory text and function in harnessing the patent system as an engine of healthcare innovation through patent licensing and technology transfer.

Immigration is Not Invasion

11-2025 Ilya Somin

In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as “invasion” under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as “invasion.” As James Madison explained in 1800, “Invasion is an operation of war.” Illegal migration and drug smuggling do not qualify.

Part I summarizes the history of the “invasion” debate and currently ongoing litigation over it. Part II explains why the broad interpretation of “invasion” is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to “invasion” in the Federalist Papers.

In Part III, I consider the meaning of “invasion” in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters.

Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress’ power to declare war, and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of “invasion.” They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.

Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of “invasion” or the factual issue of whether an “invasion” – properly defined – has actually occurred.

International Finance and the Geopolitics of Market Infrastructures

10-2025 Paolo Saguato

This Article examines how financial market infrastructures (FMIs)—long regarded as neutral, technocratic utilities—have become instruments of geopolitical influence and economic statecraft. Drawing on three case studies—SWIFT sanctions, EU-UK post-Brexit equivalence disputes, and the EU’s withdrawal of FMI recognition for India, South Africa, and the United Arab Emirates—this article shows how FMIs are increasingly ‘weaponized’ as tools of financial diplomacy. It argues that mutual recognition and equivalence regimes, originally designed to foster cross-border regulatory coordination and financial stability, have evolved into levers of jurisdictional power. These mechanisms now serve both ‘offensive’ purposes (such as sanctions) and ‘defensive’ strategies (such as re-shoring euro clearing), revealing their political and discretionary nature. Yet, this transformation is not necessarily a design failure. Rather, it reflects the adaptability of these regimes to a pluralistic international legal order where sovereignty and market access must be balanced. The Article contributes to the literature on international financial governance by analyzing how FMI access decisions sit at the intersection of law, markets, and geopolitics—and by suggesting how these dynamics might reshape global financial integration.

View More Faculty Working Papers