The modern era of partisanship in Supreme Court confirmations began during LBJ’s presidency. It saw two successful Supreme Court nominations and two failed ones that had lasting consequences. As the president, the Senate, nominees, interest groups, and the public mobilized, they created and politicized the confirmation process, and Republicans realized how powerful a tool the threat of an “activist Supreme Court” could be in shaping and uniting the GOP.

Why does the science of brain development have such compelling influence on our thinking about children’s development? This question is explored in relation to an important Supreme Court decision concerning adolescent responsibility in which the findings of developmental neuroscience were influential but misleading. In considering this case, the chapter explores the concepts of neurorealism (i.e., brain images provide “visual proof” of the brain’s influence on mental processes) and neuroessentialism (i.e., brain processes are the material basis for mental processes). Then the chapter describes why we are – but should not be – neurodeterminists by showing how the brain and mind are mutually influential in development and that both are affected by experience. The chapter also describes the difficulties of attributing specific mental processes to particular areas of the brain, and considers the importance of context and culture in the development of brain and mind. The chapter shows that without due consideration of the multiple influences on the developing brain and mind, and careful examination of the contexts in which they develop, mistaken applications of developmental brain science are more likely. The clear and accurate communication of the science is thus crucial to public understanding and responsible policy applications.

This chapter examines the design and performance of the most prominent recent innovation in platform governance, the Facebook (now Meta) Oversight Board. It contextualizes the examination of that board in the rule of law ideas of the preceding chapter. In the course of this analysis, it also develops some ideas about the normative function of platform legalism in building a kind of hybrid corporate/userbase platform identity which may be morally valuable as well as tactically valuable in resolving controversial governance issues. Finally, it suggests that the Oversight Board's handling of the "great deplatforming" of Donald Trump illustrates the capacity of lawlike modes of the decision to shape such an identity. It also serves as a counterexample to some of Carl Schmitt's ideas about sovereignty and emergency power.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Chapter 2 presents the federal response to violence against women. We begin the chapter with a brief overview of the history of domestic violence in the United States. We then analyze the response of Congress to the domestic violence epidemic as compared to the Supreme Court’s response. This detailed presentation reveals the gaps that federal laws havr created by leaving states the option to enforce them and relegating nearly all of the enforcement of domestic violence law to local authorities. This chapter underscores the role and limi, of federal policy in remedying the inequities among women in their personal protection from domestic violence. The lack of a cohesive federal response contributes to all four levels of gender inequality in domestic violence policy.

After formally adopting their competition laws, India and Pakistan were faced with the task of implementing them. However, although both countries established their national competition authorities, the CCI and the CCP, almost immediately after adopting their respective legislations, the enforcement of these legislations has not been without complications. This chapter compares the structures, mandates, and compositions of these authorities and their decision-making strategies, and provides a comparative overview of implementation of competition laws in the two countries by reference indicators derived from the orders issued by the CCI and CCP in respect of anti-competitive agreements and abuse of dominance. The chapter also links the performance of the CCI and CCP and their interactions with their countries’ pre-existing legal systems to the mechanisms and institutions employed by the countries in the adoption stage and the compatibility and legitimacy generated through them.

A series of important lawsuits in the 1820s represented an increasingly stark division in American thinking about the role and authority of the Supreme Court in: Hunter v. Martin, Devise of Fairfax (1814), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Cohens v. Virginia (1821). That debate over federalism reflected fundamentally different views of the foundation and formation of the Constitution. For John Marshall and other nationally minded Americans, the Constitution had been established as the act of one national people, forming a national government with considerable powers. For states’ rights advocates, the Constitution was a compact of sovereign states, leaving state sovereignty largely intact except for limited and express grants of powers to the national government. Those competing views shaped how each side regarded the role and authority of the Supreme Court, and rhetoric became more extreme as nationalists feared disunion and states’ rights advocates feared the disintegration of state authority, including over slavery.

Presidents Jefferson and Madison’s Republican-backed policies prompted new waves of state interposition. Federalist-dominated state legislatures in New England passed interposition resolutions that protested: Jefferson’s Embargo Acts (1807–1809); United States v. Peters (1809) emphasizing the Supreme Court’s finality over constitutionality; the recharter of the Bank of the United States; and Madison’s efforts to mobilize state militias before the War of 1812. After the controversy over the Alien and Sedition Acts and Jefferson’s election in 1800, Americans might have expected Republicans to advocate strict construction of national powers under the Constitution while Federalists would urge broader powers. However, defenses of states’ rights never belonged exclusively to one political viewpoint or party. Americans debated whether sounding the alarm resolutions and state interposition were legitimate state actions – and some asked if and when they would be justified in more forcefully resisting federal law, notably during the Hartford Convention in 1814 that called for constitutional amendments to reduce the power of Southern states and the repeal of the Three-Fifths Clause.

Two dominant constitutional issues in the 1790s illustrate the fluid nature of constitutional meaning in the early republic. One issue was whether the Constitution permitted individuals to sue states in federal court. The Supreme Court’s decision in Chisholm v. Georgia (1793) generated widespread state interposition to resist the Court’s broad interpretation of a constitutional clause and resulted in the Eleventh Amendment. A second constitutional issue generating interposition in 1796 was whether President Washington had exceeded his authority in negotiating the Jay Treaty with Great Britain. Federalists argued that the Constitution’s text clearly provided presidential authority while Republicans wanted Congress to speak for the sovereign people and have a vital role in assessing a treaty’s constitutionality. Both sides considered it important to understand the intent of those who drafted and ratified the Constitution and to employ that history in interpreting the document. Yet, this process of constitutional interpretation allowed inferences from the Constitution’s text, reliance on memory, and even thoughts about the framers’ intentions.

Both sides in the battle over postwar German policy shared the same ultimate objective: to reduce the likelihood of another world war. The question was how to achieve it. Both sides could make compelling cases. In Treasury Secretary Morgenthau’s view, future peace required the dismantling of Germany’s capacity to wage war. It was that simple. Remove their means of manufacturing the weapons of modern war, and the Germans could not threaten the peace. By contrast, War Secretary Stimson believed that peace required prosperity, and by forcing Germany to subsist at artificially low living standards, the Allies would breed resentments that would undermine stability. Morgenthau’s view was a negative conception of world order: disintegrate Germany from the calculus of great power politics, and the result would equal peace. Stimson’s view was more positive: reintegrate Germany into European recovery, and the Germans would become stakeholders in an interdependent world. Roosevelt’s advisors split down this divide. Their position depended in large part on what each believed about the German people, themselves.

The US Supreme Court had the power to overturn FDR’s internment order, but two main factors prevented it. Justice Felix Frankfurter worked hard to persuade his colleagues to keep the policy in place. Simultaneously, Frankfurter’s close friend, Assistant Secretary of War John McCloy, the most prominent official advocating internment, engaged in a cover-up. He collaborated with officials inside the War Department to suppress information and falsify records crucial to the Hirabayashi case. If the Court had known that the evidence of Japanese-American sabotage had been doctored, the Court might have struck the President’s order down. Chapter 4 unpacks the cover-up and shows how a small group of officials actively undermined the majority’s will.