Archive: 2012

Nullifying the Debt Ceiling Threat Once and for All: Why the President Should Embrace the Least Unconstitutional Option

Neil H. Buchanan* & Michael C. Dorf**


I. Introduction


In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling.1 This respite, unfortunately, was merely ...READ MORE

The Purpose-Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing

Colin Miller*


Under the doctrine of forfeiture by wrongdoing, a party who successfully engages in conduct designed to render a prospective witness unavailable at trial forfeits his objection to the admission of hearsay statements made by that witness. Typically, this forfeiture ...READ MORE

Perfecting Criminal Markets

  By: David Michael Jaros


From illicit drugs to human smuggling to prostitution, legislators may actually perfect the very criminal markets they seek to destroy. Criminal laws often create new dangers and new criminal opportunities. Criminalizing drugs creates opportunities to sell ...READ MORE


The Agency Class Action

  By: Michael D. Sant’Ambrogio & Adam S. Zimmerman


The number of claims languishing on administrative dockets has become a “crisis,” producing significant backlogs, arbitrary outcomes, and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless ...READ MORE

Delegating to Enemies

  By: Jacob E. Gersen & Adrian Vermeule


An axiom of institutional design is known as the ally principle: All else equal, voters, legislators, or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally ...READ MORE

The Cold Reality of the Ineffective Hot News Remedy, and the Case for Contract

By: Gregory D. Beaton

The hot news misappropriation doctrine permits a plaintiff to seek time-limited injunctive relief against an alleged misappropriator in order to promote the reporting and dissemination of noncopyrightable information. While the hot news remedy may be a powerful ...READ MORE


Due Process in Prison: Protecting Inmates’ Property After Sandin v. Conner

By: Kaitlin Cassel

In 1995, the Supreme Court, in Sandin v. Conner, altered the standard by which federal courts determine when due process attaches to prisoners’ liberty interests. This new standard recognizes prisoners’ liberty interests only upon a showing of an ...READ MORE

Fair Labor Fraud: The Peculiar Interplay of Civil RICO and the Federal Minimum Wage Act

  By: James W. Crooks


This Note examines the interaction between the Fair Labor Standards Act (FLSA), which guarantees a minimum wage and overtime pay to most categories of employees, and the civil remedies of the Racketeer Influenced and Corrupt Organizations ...READ MORE

The Thirteenth Amendment and the Regulation of Custom

  By: Darrell A.H. Miller


Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to ...READ MORE


Into the Light of Day: Relevance of the Thirteenth Amendment to Contemporary Law

  By: Alexander Tsesis


The Essays in this volume address four broad themes: (I) the Thirteenth Amendment in relation to other constitutional provisions, (II) the significance of the Amendment in restructuring federalism, (III) the limits of the Amendment’s grant of congressional and ...READ MORE

The Dangerous Thirteenth Amendment

  By: Jack M. Balkin and Sanford Levinson


Through most of its history, the Thirteenth Amendment has been interpreted extremely narrowly, especially when compared to the Fourteenth Amendment and the Bill of Rights. The Thirteenth Amendment has been read in this ...READ MORE

Subtraction by Addition?: The Thirteenth and Fourteenth Amendments

  By: Mark A. Graber


The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be ...READ MORE


The Thirteenth Amendment, the Power of Congress, and the Shifting Sources of Civil Rights Law

  By: George Rutherglen


Most of the recent controversy over the Thirteenth Amendment concerns the possibility of using the Amendment to create rights like those under the Equal Protection and Due Process Clauses, but without the restrictions of the state action ...READ MORE

The Supreme Court and the History of Reconstruction—And Vice-Versa

  By: Eric Foner


Beginning in the 1930s, Reconstruction historiography underwent a dramatic change. Early-twentieth-century historians of Reconstruction viewed aggressive federal intervention to protect the civil rights of freed slaves as a mistake, and they celebrated the Compromise of 1877 and ...READ MORE

Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage

  By: Aviam Soifer


The Peonage Abolition Act of 1867 abolished voluntary as well as involuntary servitude. Congress did this in sweeping terms, based on the Enforcement Clause of the Thirteenth Amendment, but Congress explicitly extended protections beyond those proclaimed in ...READ MORE


Gender Discrimination and the Thirteenth Amendment

  By: Alexander Tsesis


Although the Thirteenth Amendment was ratified more than a century and a half ago, courts have yet to delve into its relevance to gender discrimination. This oversight is unfortunate given the extent to which jurisprudence about another ...READ MORE

James Ashley’s Thirteenth Amendment

  By: Rebecca E. Zietlow


On January 31, 1865, the United States House of Representatives voted to approve the Thirteenth Amendment. Chairing the final debate over the Amendment was Representative James Ashley, a lifelong opponent of slavery from Northwest Ohio who ...READ MORE

Thirteenth Amendment Optimism

  By: Jamal Greene


Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the Amendment’s drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has ...READ MORE


McCulloch and the Thirteenth Amendment

  By: Jennifer Mason McAward


Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch ...READ MORE

The Thirteenth Amendment and the Regulation of Custom

  By: Darrell A.H. Miller


Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the tech- nical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power ...READ MORE