This Article challenges the conventional wisdom that the law had little to say about immigration before 1875. Instead, it offers a reframing of immigration law history as including what scholars have previously thought of as “settlement history”: the immigration of whites to the western territories. The Article focuses on a particular group of immigrants—the so-called Mercer Girls—to explore both how the failure to invoke exclusionary immigration law and the presence of other kinds of laws (including homestead acts and anti-miscegenation statutes) functioned to shape the population of the nascent western territories. A close look at this type of immigration and this group of immigrants in particular facilitates a reconceptualization not only of narratives of American westward immigration, but also of the way immigration law actually works, both on its own and in tandem with other doctrinal schemes. The story of the Mercer immigrants can help us put exclusionary immigration law in context as part of a broad set of legal strategies used to produce, shape, and maintain populations. More importantly, it shows us that the study of restriction only tells part of the story of our country. To understand whether immigration policy is meeting its goals, we must look to see how the law fosters immigration as well as how the law restricts it.

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress’s preemption power by the anti-commandeering rule, properly understood. The Article develops a new framework for analyzing the boundary between permissible preemption and prohibited commandeering—the state-of-nature benchmark. The state-of-nature benchmark eliminates much of the confusion that has clouded disputes over the legal status of state medical marijuana laws. Just as importantly, the Article demonstrates why these state laws matter in a more practical sense. By legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to any issue pitting permissive state laws against harsh federal bans, including abortion, sports gambling, and firearms possession.

Mutual fund incubation is a process by which new funds are initially operated out of public view. The high-performing funds are then marketed to investors, and the low-performing funds are quietly terminated. This selection process is not revealed to investors, thus creating the illusion that the successful funds’ returns were the result of skill rather than luck. Also, some fund companies subsidize their incubator funds in ways that do not continue after the funds are sold to the public. As a result, the high returns of successful incubator funds generally do not persist after the funds are marketed to investors. We argue that incubation is a misleading practice that must be better addressed by the SEC. Although SEC rules prevent marketing of funds based on preregistration performance, the SEC permits companies to engage in post-registration incubation without disclosing to investors the selection process or the typical lack of performance persistence. In addition, the SEC permits funds to selectively use performance data from predecessor and similar funds and private accounts without disclosing the selection process. We recommend greater disclosure, or outright prohibition, of fund incubation and similar deceptive practices.