Things to Read This Week (2/16/26)
The spring submission season means an abundance of riches:
States and the Strongman, by Jessica Bulman-Pozen and Gillian Metzger. Two of the great federalism scholars take on the Trump administration. The discussion of so-called Supremacy Clause immunity is especially timely.
The Truth About Consequences: Purdue Pharma’s Lessons for Statutory Interpretation, by Michael Francus. Ex ante / ex post issues aside, we need much more of this kind of ex post consequentialism about Supreme Court decisions.
Patronage Pardons, by Lee Kovarsky. (“Abuse of presidential pardon power is taking a new and frightening turn. The Donald Trump administration is using clemency, including pardons, to signal impunity to regime allies contemplating misconduct. Such clemency has a predictable effect: it induces loyalist crime by reducing the expected penalty. “Patronage pardoning” refers to the clemency practices that power this loyalty-for-protection exchange. Those practices pose a grave threat to the rules-based constitutional order, and they are the subject of this Article.”). People occasionally ask me if I think we should eliminate the pardon power, and I still say no, but I can see why they ask.
Effectuating Congress’s Power of the Purse, by Zach Price. Very very important, perhaps more important than all of the flashier stuff you read about constitutional controversies over the past year.
The Insignificance of Judicial Opinions, by Justin Driver — very glad to see a fellow traveler on the judgment/opinion divide. Among other things it contains a nice comparison of the post-Brown Warren Court to the modern shadow docket. This is part of the Jorde lecture symposium featuring the lead lecture by my colleague David Strauss — Polarization, Victimization, and Judicial Review — which acts as sort of a counterpoint to Richard’s foreword.
The symposium also contains, among other things, Imperfect Guardians by Akbar and Doerfler, which is one of the first places I’ve seen which contains an interesting partial defense of judicial review — especially interesting given the authors (“To be clear, ours is not an argument to forgo the courts. The judiciary is a terrain of state power worthy of contestation. Courts may provide limited tactical venues against authoritarian gestures, as the recent months have demonstrated.”).
Last, but certainly not least, How Equity Changes, by Sam Bray — forthcoming in the Supreme Court Review. (“This Article grapples with a central question raised by CASA: if equity is not static, then what counts as legitimate innovation?”)
