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Who pays for the terrible destruction wrought by war? This problem is far from new, but it is currently receiving renewed attention as a result of the war in Ukraine. The options currently available to states that are the victims of unlawful wars in the postwar era are limited. For Ukraine, some have proposed addressing this shortfall by seizing frozen Russian sovereign assets, and both the United States and Canada have passed legislation permitting just that. European officials have considered a similar proposal, but they have thus far rejected them as too legally risky. Indeed, such plans run afoul of the longstanding international law doctrine of sovereign immunity. Put simply, they attempt to cure one international legal violation by engaging in another. In this Article, we offer another way forward for Ukraine and any other state that might find itself in this situation in the future: Ukraine may deploy what is known as the international law doctrine of countermeasures to freeze Russian sovereign assets in response to Russia's injurious and illegal conduct against it. We argue that frozen assets need not be returned to Russia at the close of the war as long as Russia has failed to pay reparations. That is because the failure to pay reparations is itself an unlawful act for which countermeasures (continued freezing of assets) may be kept in place even if the unlawful war has ceased. Moreover, other states may join Ukraine, putting in place collective countermeasures, sometimes called \"third-party\" countermeasures. However, we argue against using countermeasures doctrine to simply seize Russian assets; such seizures would not properly qualify as countermeasures and thus would violate international law. This approach to countermeasures, if adopted, could have implications beyond Ukraine, extending not only to future war reparations but also to international responses to cyber operations, human rights violations, or violations of environmental law obligations. Indeed, the challenge of securing reparations for Ukraine must be addressed not as a one-off problem but as a systemic one. We should therefore seek a solution that will benefit not just Ukrainians but other similarly situated actors in the future. This is yet another reason that existing ad hoc legislative proposals to seize Russian assets are inadequate: They might provide money to Ukrainians now, but they will undermine the international legal system while doing little to help future victims. Keeping the larger picture in view is not only important as a matter of equity and justice. It is also in the best interests of Ukraine, which must maintain unprecedented levels of global support for its ongoing defensive actions and efforts to hold the architects of this illegal war accountable for the extraordinary harm they have done. This Article's proposal for institutionalizing collective countermeasures meets this challenge, offering a way to reinforce the reparations obligation in circumstances beyond the present conflict.

Since the Supreme Court overruled Roe v. Wade in 2022, there has been a significant focus on pregnancy complications. This focus has created some risks. Highlighting medically indicated abortion stories could stigmatize the vast majority of abortion seekers who lack medical reasons for abortion and result in narrow remedies that do nothing to undermine abortion bans. This Article presents a way to convert these risks into an opportunity: to use pregnancy complications as a wedge to challenge abortion bans more generally and make abortion more accessible for everyone. We present a long-term strategy to dismantle abortion bans, using several legal theories surrounding pregnancy complications to show that abortion bans are inherently vague, religiously discriminatory, and arbitrary. We then zoom out and show that pregnancy complication cases reveal that Dobbs itself is unworkable and must be overturned. Though the current Supreme Court is unlikely to adopt the theories we describe, there is already evidence that state and lower federal courts are open to them. Moreover, legal losses have the potential to sway public attitudes by revealing how all abortions are health-saving.

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm's way; and (4) reactively moving people to new locations following natural disasters. This final tool of unmanaged retreat has emerged as the default \"strategy.\" However, longstanding property and tort law doctrines-developed when there was a more stable physical environment-are poised to thwart these tools. In this Article, I argue that just as climate change destabilizes the physical environment, legal doctrine is also ripe for destabilization. Using coastal zone adaptation challenges as a touchpoint, I show how legal doctrines designed for a more stable physical environment constrain climate adaptation efforts. For example, if governments invest in armoring measures, they will confront physical takings jurisprudence that mandates just compensation. The duty to repair and maintain-a mixed question of property and tort law-complicates disinvestment by states and localities from coastal roads and their retreat from coastal areas. Legal doctrine needs to adapt to meet the climate moment. Absent a doctrinal change, climate adaptation will default to unmanaged retreat-an ad hoc, reactive, and disjointed \"strategy\" that exacerbates existing inequalities.

Rooted in equitable principles, the writ of habeas corpus permits an incarcerated individual to collaterally attack their sentence or conviction. Every person who is incarcerated under a state or federal conviction is entitled to at least one full opportunity to obtain federal habeas review. However, amidst concerns of the abuse of the writ, Congress and federal courts have severely narrowed this avenue for relief. Among its various restrictions on federal habeas review, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a habeas petitioner from filing a \"second or successive\" petition unless they can meet one of the Act's two narrow exceptions. Yet neither Congress nor the Supreme Court has meaningfully defined the term \"second or successive.\" The Court has only explained that it is a \"term of art\" not to be read literally, and that its content derives from pre- and post-AEDPA case law. Left with this scant guidance, lower courts have struggled to apply this statutory provision.

Machine learning algorithms increasingly mediate our public discourse - from search engines to social media platforms to artificial intelligence companies. As their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech. This article proposes a way to successfully draw that line based on a principle that we call \"speech certainty\" - the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it's not the programmer's speech. Accordingly, this article contends that the output of machine learning algorithms isn't entitled to First Amendment protection. It reveals that the question of how an algorithm works is constitutionally significant. With the Supreme Court in 'Moody v NetChoice' demanding further inquiry into what constitutes protected expressive activity for social media platforms, that question can no longer be ignored. By failing to distinguish between traditional and machine learning algorithms, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. Protection for the output of machine learning algorithms would, for the first time in the Constitution's history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence.

Can treaty terms be implied? And, if so, what does that mean? This Article draws on concepts from the branch of linguistics known as pragmatics to analyze how the rules on treaty interpretation allow, in exceptional cases, for the identification of implied terms in otherwise express treaty texts. Its key insight is that implied terms fit within the framework of Articles 31 and 32 of the Vienna Convention on the Law of Treaties and are derived from the associated interpretation of express terms. They cannot be derived from a separate process—and indeed such a separate process is not possible under the positive law.

In the summer of 2023, journalist Charlotte Alter published a gripping article in 'Time' magazine about \"Ashley,\" a rising seventh grader who became a mother a few months before the news article was published. Alter explained, \"Ashley just had a baby,\" and as she was sitting in a relative's apartment in Clarksdale, Mississippi, \"wearing camo-print leggings,\" she touched the \"plastic hospital bracelets still on her wrists.\" Hours before, she was released from the hospital. Months before, she was raped.

Tens of thousands of students in K-12 schools suffer sexual harassment each year. While presidential administrations and Congress have proposed reforms to Title IX to tackle this problem, the potential of Section 1983 Equal Protection Clause claims to protect students from and remedy their sexual harassment has gone overlooked. Not only does the Equal Protection Clause provide students some broader rights than Title IX, but Section 1983 also exists to remedy civil rights violations. Section 1983 Equal Protection Clause claims therefore have significant potential to address sexual harassment in ways Title IX cannot. These equal protection claims based on school sexual harassment, however, have yet to fulfill their potential. When students who suffer sexual harassment bring these claims against schools, courts import Title IX's onerous standards into their evaluation of the equal protection issues. Courts thus collapse students' Title IX and equal protection rights, and students' equal protection claims fail. This article is the first in the academic literature to identify this civil rights collapse and explain that it occurs based on false and unjustified assumptions. To reverse this rights collapse, this article proposes a reconceptualization of the standards for evaluating students' equal protection claims for school sexual harassment - one that unyokes their evaluation from Title IX. These changes would leverage the power of Equal Protection Clause claims to protect students where Title IX does not.

In December 2023, the Department of Justice and the Federal Trade Commission issued the eighth iteration of the Merger Guidelines--guidance documents that outline the antitrust agencies' priorities when reviewing a merger or acquisition. These documents are not legally binding. And yet over the past fifty years, courts have heavily relied upon the Guidelines to decide antitrust cases, citing them in equal breath with statutes and case law. This is a deference that has unfolded quietly. Courts piling on citations to the Guidelines have not articulated exactly what kind of deference these guidance documents are receiving. Nor have they explained why this deference is happening at all. This Note seeks to shine a light on how and why the Merger Guidelines climbed to such an incredibly prominent position in modern antitrust jurisprudence. First, it charts the history of the Guidelines' birth and development from 1968 to 2023, highlighting how the Guidelines and the case law gradually came into conversation with one another. It then explores how the antitrust agencies came to voluntarily adopt notice-and-comment procedures that mimic the Administrative Procedure Act's requirements, despite having no obligation to do so. This Note argues that the agencies have sought to cloak the Guidelines in greater procedure in order to bolster their popular legitimacy and temper judicial skepticism. After categorizing the specific language judges have used to refer to the Guidelines in merger decisions from December 2000 to February 2025, this Note concludes that courts have generally failed to label their deference. From this silence, the Note predicts courts will continue to rely on the Guidelines and argues they should apply Skidmore deference when doing so. This Note closes with an exploration of whether the Supreme Court's doctrinal tidal waves in deference and finality might uproot the thus far nameless deference. The first year of cases issued under the 2023 Guidelines reveals that the Guidelines have largely remained persuasive to the courts. Antitrust's north star continues to light the way.