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Don’t Die! How Biosimilar Disparagement Violates Antitrust Law

Carrier, Michael A. | October 6, 2020

Competition is the key to low prices in the pharmaceutical industry. For decades, Americans have benefitted from affordable generic versions of brand-name drugs. But now, we stand poised on the wave of a revolution. Biologics, which include lifesaving, cancer-treating drugs, can cost hundreds of thousands of dollars per year and are forecast to be the “fastest growing segment of drug spending” in coming years.

The hope, then, is that just like generic drugs, competition from follow-on products known as biosimilars will lower prices. But the fear is that they will not. Why? One main reason is disparagement.

Biosimilars are nearly the same as biologics. In fact, they are required to be “highly similar” to, and have “no clinically meaningful differences” from, biologics. Despite this, biologic manufacturers have raised ominous warnings that biosimilars are not the same as biologics but have differences that pose grave safety consequences. Doctors are getting the message loud and clear and are refusing to prescribe appropriate—and more affordable—biosimilars. It thus comes as no surprise that government agencies have serious concerns about the behavior of biologic companies.

This Essay addresses biologic manufacturers’ disparagement of biosimilars. It sketches the background of the industry and introduces the unique regulatory setting. It then sets forth the caselaw and explains how disparagement can violate antitrust law.


Distinguished Professor, Rutgers Law School. I would like to thank Tom Cotter, Shubha Ghosh, Elizabeth Jex, Carl Minniti, and Rebecca Tushnet for their helpful comments.

Copyright 2020 by Michael A. Carrier

Cite as: Michael A. Carrier, Don’t Die! How Biosimilar Disparagement Violates Antitrust Law, 115 Nw. U. L. Rev. Online 119 (2020),

Delegating or Divesting?

Hamburger, Philip | September 30, 2020

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.


Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School, and President of the New Civil Liberties Alliance.

Copyright 2020 by Philip Hamburger

Cite as: Philip Hamburger, Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020),

Pretrial Detention in the Time of COVID-19

Carroll, Jenny E. | July 30, 2020

COVID-19 has shone a light on the preexisting flaws in the criminal justice system. This Essay focuses on one of the challenges the criminal justice system faces in light of COVID-19: that of a pretrial detention system that falls more harshly on poor and minority defendants, swells local jail populations, is fraught with bias, produces unnecessarily high rates of detention, and carries a myriad of downstream consequences, both for the accused and the community at large. Long before the first confirmed case, United States’ jails were particularly susceptible to contagions. The COVID-19 crisis exacerbates this problem creating an acute threat to the health of those in custody and those who staff our jails. The pandemic reveals that even during “ordinary times” the pretrial detention system fundamentally miscalculates public safety interests to the detriment of both detainees and the communities they leave behind. Simply put, current pretrial detention models fail to account for the risks defendants face while incarcerated and pit defendants’ interests against the very communities that depend on them.


Wiggins, Childs, Quinn & Pantazis Professor of Law, University of Alabama School of Law. Thank you to Adam Steinman, Ronald Krotoszkynski, Brandon Garrett, Lauryn Gouldin, Megan Stevenson, Jessica Eaglin, Sandy Mayson, Lee Kovarsky, Justin Murray, Benjamin Levin, Anna Roberts, Valena Beety, Thomas Frampton, Aaron Littman, Alice Ristroph, Andrew Ferguson, and Jocelyn Simonson. Thanks also to all those who participated in the inaugural Duke Law Center for Science and Justice Criminal Works in Progress meeting and the Arizona State University Sandra Day O’Connor College of Law Criminal Justice Center Workshop. Finally, this piece would not have been possible without the hard work and faith of Samantha Greenky and the diligent editing of the Northwestern University Law Review Online.

Copyright 2020 by Jenny E. Carroll

Cite as: Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, 115 Nw. U. L. Rev. Online 59 (2020),

The Crypto Quandary: Is Bankruptcy Ready?

McDermott, Megan | July 4, 2020

As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard-hit businesses will need to reorganize to adjust to new conditions, while out-of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer and business bankruptcies. Although legislative solutions may be necessary to adequately address these complications, at the very least, greater awareness of these issues will help ensure that courts and stakeholders are better prepared to address this looming crisis.


Lecturer and Honorary Fellow in the Institute for Legal Studies, University of Wisconsin School of Law. Early versions of this paper were presented at the 2019 National Business Law Scholars Conference at University of California, Berkeley School of Law and the Second International Comparative Insolvency Symposium at the University of Miami School of Law. I am grateful to my fellow panelists and attendees for their questions, comments, and suggestions.

Copyright 2020 by Megan McDermott

Cite as: Megan McDermott, The Crypto Quandary: Is Bankruptcy Ready?, 115 Nw. U.L. Rev. Online 24 (2020),

What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause

Kohler-Hausmann, Issa | May 8, 2020

Students for Fair Admissions (SFFA) v. Harvard—a case alleging racial discrimination against Asian applicants in undergraduate admissions on appeal to the First Circuit—is one of the most notable recent equal protection challenges to be advanced almost exclusively on the basis of statistical evidence. The case could well end affirmative action in higher education and beyond if it winds up at the Supreme Court. However, the central issue in this case is not an evidentiary question about what is probative of discrimination; it is a substantive question about what constitutes discrimination. The plaintiffs SFFA put forward a substantive definition of racial nondiscrimination—group-based conditional parity—under which equal protection is denied if applicants grouped by race do not face similar likelihood of admission conditional on having similar credentials. Neither Harvard, in defending their affirmative action practices, nor the trial judge, in ostensibly favoring Harvard’s expert findings, meaningfully countered SFFA’s definition of discrimination. This Essay argues that there is no good normative reason to accept this definition of what equal protection demands in the context of higher education admissions because it will be violated whenever groups sit in some relation of social and material inequality to each other. Furthermore, it is at odds with the Supreme Court’s line of cases allowing universities to value racial diversity and the graded scrutiny scale in the equal protection doctrine. Before to debating the content of a substantive principle of nondiscrimination/equal protection with respect to a particular form of groupness, we must first define what constitutes that form of social groupness. A relation of equality and fairness proposed by a principle of ‘nondiscrimination’ or ‘equal protection’ is only valid in light of what makes the social grouping what it is under current conditions.


Professor of Law & Sociology, Yale University. I am very grateful to Lily Hu, Moritz Hardt, Robert Post, Gideon Yaffe, Elise C. Boddie, Sharad Goel, and Josh Cohen for generous and helpful feedback, and to the editorial board of the Northwestern University Law Review for their dedicated work on the piece. A special thanks to Arjun Mody for excellent and patient RA work over the past year. And to Katie, for endless patience over countless dinners with DAGs on napkins and doctrinal debates . . . thank you and love you.

Copyright 2020 by Issa Kohler-Hausmann

Cite as: Issa Kohler-Hausmann, What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause, 115 Nw. U.L. Rev. Online 1 (2020),

The New Swing Votes on the U.S. Supreme Court

Harris, Daniel | March 20, 2020

The big surprise on the U.S. Supreme Court during the October 2018 term was how often the Court’s newest members disagreed with each other. In cases with at least one dissent, Justice Neil Gorsuch and Justice Brett Kavanaugh were on opposite sides 49% of the time. Frequently, one or the other joined with the Court’s four Democratic appointees, resulting in liberal victories in cases involving federal business regulation and federal criminal law.

There is a pattern to the disagreements between the new appointees— the two Justices have profoundly different attitudes toward the federal government. Justice Kavanaugh has a positive view of the federal government. As a result, he tends to resolve ambiguities in favor of the government and the exercise of federal power. Justice Gorsuch, on the other hand, has a skeptical attitude toward federal power. He resolves doubts against the government and the exercise of federal power. As a practical matter, this means that Justice Kavanaugh is a potential liberal ally in federal regulatory cases and Justice Gorsuch is a likely ally in federal criminal cases.


Adjunct Professor of Agency Law, Chicago-Kent College of Law.

Copyright 2020 by Daniel Harris

Cite as: Daniel Harris, The New Swing Votes on the U.S. Supreme Court, 114 Nw. U.L. Rev. Online 258 (2020),

From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States

Heath, J. Benton | February 25, 2020

The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine.


Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing.

Copyright 2020 by J. Benton Heath.

Cite as: J. Benton Heath, From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States, 114 Nw. U. L. Rev. Online 250,

Kafka’s Court: Seeking Law and Justice at Guantanamo Bay

Alka Pradhan | February 7, 2020

Alka Pradhan, Kafka’s Court: Seeking Law and Justice at Guantanamo Bay, in Women & Law 151 (2020) (joint publication of the top sixteen law reviews).

Considering a Domestic Terrorism Statute and Its Alternatives

Francesca Laguardia | January 17, 2020

Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of “international” as opposed to “domestic” terrorism. Public, legal, and law enforcement commenters have begun calling for a “domestic terrorism statute,” arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists. This Essay explains that the primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate right-wing organizations as “terrorists.” Law enforcement pursuing international terrorists rely on these designations and material support statutes far more than on any statutes prohibiting terrorist acts, largely because the acts prohibited are so limited that they are rarely useful, even in the international context.
But the two options of designating domestic terrorist organizations or creating a broad terrorism statute are highly problematic. This Essay discusses the barriers to prosecuting domestic terrorists as terrorists, including the problems with current terrorism statutes in responding to modern, small scale attacks and the tactics used to prosecute international terrorists. It then explores the problems with broad, generalized terrorism statutes that have been passed at the state level and drafted in Congress, and the problems with simply applying the international framework for terrorist designations to domestic terrorists. Finally, it suggests several alternative options to lessen the disparity between the handling of right-wing and other domestic terrorists, and international terrorists.


Associate Professor, Justice Studies, Montclair State University. J.D., New York University School of Law, 2007; Ph.D., New York University Institute for Law and Society, 2012.

Copyright 2020 by Francesca Laguardia

Cite as: Francesca Laguardia, Considering a Domestic Terrorism Statute and Its Alternatives, 114 Nw. U. L. Rev. Online 212 (2020),

The Common Law as Silver Slippers

Crawford, Bridget J. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Professor of Law, Elisabeth Haub School of Law at Pace University.

Copyright 2019 by Bridget J. Crawford

Cite as: Bridget J. Crawford, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 131 (2019),

The Promise and Peril of a Common Law Right to Abortion

Cohen, David S. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Professor of Law, Drexel University Kline School of Law.

Copyright 2019 by David S. Cohen

Cite as: David S. Cohen, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 140 (2019),

Women are (Allegedly) People, Too

Grossman, Joanna L. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Ellen K. Solender Endowed Chair in Women and the Law & Professor of Law, SMU Dedman School of Law.

Copyright 2019 by Joanna L. Grossman

Cite as: Joanna L. Grossman, Women are (Allegedly) People, Too, 114 Nw. U. L. Rev. Online 149 (2019),

The Common Law as a Terrain of Feminist Struggle

Choudhury, Cyra Akila | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Professor of Law, Florida International University College of Law.

Copyright 2019 by Cyra Akila Choudhury

Cite as: Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle, 114 Nw. U. L. Rev. Online 160 (2019),

Intellectual Property Infringement and the Right to Say No

Chon, Margaret | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Donald & Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law.

Copyright 2019 by Margaret Chon

Cite as: Margaret Chon, Intellectual Property Infringement and the Right to Say No, 114 Nw. U. L. Rev. Online 169 (2019),

The Female Body in the Workplace: Judges and the Common Law

Reyes, Maritza I. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Associate Professor of Law, Florida A&M University College of Law.

Copyright 2019 by Maritza I. Reyes

Cite as: Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law, 114 Nw. U. L. Rev. Online 177 (2019),

In Search of the Common Law Inside the Black Female Body

McMurtry-Chubb, Teri A. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Visiting Distinguished Professor of Law, UIC John Marshall Law School; Professor of Law, Mercer University Walter F. George School of Law.

Copyright 2019 by Teri A. McMurtry-Chubb

Cite as: Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body, 114 Nw. U. L. Rev. Online 187 (2019),

Negative Liberty Meets Positive Social Change

Bernstein, Anita | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.


Anita and Stuart Subotnick Professor of Law, Brooklyn Law School.

Copyright 2019 by Anita Bernstein

Cite as: Anita Bernstein, Negative Liberty Meets Positive Social Change, 114 Nw. U. L. Rev. Online 195 (2019),

Foreign Corruption of the Political Process Through Social Welfare Organizations

Silber, Norman I. | October 4, 2019

Social welfare organizations are prohibited from channeling foreign contributions to favored political candidates. Prospects for enforcing this prohibition, however, are uncertain. Do federal election laws or tax laws provide effective tools? Are state authorities equipped to hold a nonprofit culpable as an entity, or to hold a manager or board member responsible? These questions are important to understand whether the existing rules safeguard the nonprofit community and the fairness of elections. This Essay concludes that federal tax and election rules are likely to be less effective than the authority vested with state attorneys general to monitor and hold accountable nonprofits and their officers and directors who become vehicles for foreign interference in national elections.


Professor of Law, Maurice A. Deane School of Law, Hofstra University; Senior Research Scholar, Yale Law School. Address inquiries to

I am sincerely grateful to Danielle Berkowsky and the editorial board of NULRO for accepting this Essay and strengthening it; and to Bernardo Lopez, Abigail Bachrach, Eugene Hwangbo, Sophie Frishberg, Olivia Vega, and other staff members of the Northwestern University Law Review Online for thoughtful revisions and sensitive editing; thanks to Ashley Ehman, Zachary Gould and Megan Musachio for many insights and diligence; to Pamela Hines and to law librarian Isaac Samuels.

This Essay developed from a presentation to the 2018 Annual Conference of the Association for Research on Nonprofit Organizations and V oluntary Associations. Thanks for helpful comments, criticism, and suggestions from Peter Brann, Evelyn Brody, Putnam Barber, Johnny Rex Buckles, Eugene R. Fidell, Brenner M. Fissell, Eric M. Freedman, Mitchell M. Gans, Daniel J.H. Greenwood, Jennifer A. Gundlach, David C. Hammack, Terri Lynn Helge, Irina D. Manta, Lloyd Hitoshi Mayer, Dana Brakman Reiser, and James E. Tierney.

Copyright 2019 by Norman I. Silber

Cite As: Norman I. Silber, Foreign Corruption of the Political Process Through Social Welfare Organizations, 114 Nw. U. L. Rev. Online 104 (2019),


Autonomous Vehicles and Police De-escalation

Woods, Jordan Blair | September 9, 2019

Several experts predict that autonomous vehicles will become mainstream in the next few decades. Although autonomous vehicles will have massive implications for law enforcement, the technology has received little to no attention in criminal procedure and policing scholarship. This Essay introduces a new vector into the nascent law and policy discourse on autonomous vehicles and policing—de-escalation and officer safety. Although largely overlooked in this discourse, officer safety is a crucial topic given its powerful role in shaping officer training, departmental policies, and Fourth Amendment law. This Essay argues that autonomous vehicles and their included technologies (for instance, sensory technology, real-time high definition (HD) mapping, and network connectivity systems) have promise to decrease possibilities for escalation during vehicle stops in at least five ways: (1) vehicles will be programmed to follow traffic rules, making traffic stops much less common; (2) sensory technology will prevent vehicles from hitting other vehicles or persons, decreasing motor vehicle assaults against officers; (3) driver’s license requirements could be eliminated, taking the enforcement of driver’s license laws out of the hands of police; (4) DUI law reforms could abolish the need for officers to conduct DUI stops, investigations, or arrests; and (5) sensory technology in vehicles will reduce investigations associated with hit-and-run offenses, and will simplify accident investigations overall. This Essay explores how these potential changes have vast implications for Fourth Amendment law, officer training, and law enforcement policy on motor vehicle stops.


Assistant Professor of Law, University of Arkansas School of Law, Fayetteville. I am thankful for the helpful discussions and suggestions from Maureen Carroll, Beth Colgan, Andrew Crespo, Mary Fan, Andrew Ferguson, Brenner Fissell, Sharon Foster, Will Foster, Brian Gallini, Carol Goforth, Sara Gosman, Aya Gruber, Rachel Harmon, Wes Henricksen, Alex Lee, Cynthia Lee, Jill Lens, Jonathan Marshfield, Jonathan Masur, Tiffany Murphy, Cyndi Nance, Alex Nunn, Susannah Pollvogt, Laurent Sacharoff, David Schwartz, Joanna Schwartz, Nadav Shoked, Annie Smith, Seth Stoughton, Alan Trammell, and Ekow Yankah. I am grateful for the feedback that I received at the Northwestern/Penn/Stanford Junior Faculty Forum for Law and STEM, the Law of the Police Conference at the University of South Carolina School of Law, CrimFest 2018, ABA-AALS 2018 Criminal Justice Section Academic Roundtable, and faculty workshops at Northwestern Pritzker School of Law, Brooklyn Law School, and Cardozo Law School. Thank you to the editors and staff of the Northwestern University Law Review Online for their careful edits and suggestions.

Copyright 2019 by Jordan Blair Woods

Cite as: Jordan Blair Woods, Autonomous Vehicles and Police De-escalation, 114 Nw. U. L. Rev. Online 74 (2019),

Alienating Citizens

Frost, Amanda | August 5, 2019

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases. Using information gathered from responses to Freedom of Information Act requests, legal filings, and interviews, this Essay is the first to describe the Trump Administration’s denaturalization campaign in detail. The Essay then situates denaturalization within the Trump Administration’s broader approach to immigration. Under a policy known as “attrition through enforcement,” the Trump Administration has sought to discourage immigration and encourage “self-deportation.” Although attrition through enforcement is typically described as a method of persuading unauthorized immigrants to leave the United States, the denaturalization campaign and other Trump Administration initiatives suggest that the same approach is now being applied to those with legal status.


Professor of Law, American University Washington College of Law. I received valuable comments on this paper from Jill Family, Alexandra Lahav, Jayesh Rathod, Juliet Stumpf, and the participants in the IV CINETS Conference at Queen Mary University of London and the GLOBALCIT Annual Conference at the European University Institute. Special thanks to Melina Oliverio for her excellent research assistance.

Copyright 2019 by Amanda Frost

Cite as: Amanda Frost, Alienating Citizens, 114 Nw. U. L. Rev. Online 48 (2019),