Archive: 2012

Four Reservations on Civil Rights Reasoning By Analogy: The Case of Latinos and Other Nonblack Groups

  By: Richard Delgado


The protection of civil rights in the United States encompasses remedies for at least five separate groups. Native Americans have suffered extermination, removal, denial of sovereignty, and destruction of culture; Latinos, conquest and the indignities of a ...READ MORE

Originalism, Abortion, and the Thirteenth Amendment

  By: Andrew Koppelman


Does an originalist reading of the Thirteenth Amendment support a right to abortion? Not long ago a negative answer seemed obvious enough to make the question silly. Since then, however, originalism has become more sophisticated. It is ...READ MORE

How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) From the Debt Ceiling Standoff

By: Neil H. Buchanan & Michael C. Dorf

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made ...READ MORE


Harnessing the Private Attorney General: Evidence from Qui Tam Litigation

By: David Freeman Engstrom

What role do expertise and specialization play in regulatory regimes that deploy private litigation as an enforcement tool? This question is of enormous practical importance to the optimal design of law enforcement across a range of regulatory ...READ MORE

Pluralism and Perfectionism in Private Law

By: Hanoch Dagan

Many private law scholars strive to divine broad, unified normative theories of property, contracts, torts, and restitution (or, at times, even of private law as a whole). These monist accounts suggest that one regulative principle guides the various ...READ MORE

Delimiting Limitations: Does the Immigration and Nationality Act Impose a Statute of Limitations on Noncitizen Removal Proceedings?

By: Liliana Zaragoza

With the rate of noncitizen removal reaching its peak in 2011, it is no wonder that in recent years the Obama Administration, policymakers, and commentators across many fields have increasingly analyzed potential removal policy changes in light of ...READ MORE


Bad Guys in Bankruptcy: Excluding Ponzi Schemes From the Stockbroker Safe Harbor

  By: Samuel P. Rothschild


The Bankruptcy Code (“Code”) reflects tension between two important goals: minimizing systemic risk in the securities market and remedying securities fraud. To minimize the displacement in the securities market that a major bankruptcy in the industry ...READ MORE

Marriage as? A Reply to Marriage as Punishment

Brenda Cossman*

Response to: Melissa Murray, Marriage as Punishment, 112 Colum. L. Rev. 1 (2012)

In Marriage as Punishment, Professor Melissa Murray reads marriage against its more mainstream grain:1 Rather than classifying marriage as a public and/or private good, Murray uses the history ...READ MORE

Labor Speech, Corporate Speech, and Political Speech: A Response to Professor Sachs

Matthew T. Bodie*


Why do corporations spend money on politics? A recent report by the Manhattan Institute found that “most firms, like most individuals, behave rationally and strategically in their spending decisions on campaigns and lobbying, devoting resources in ways that, ...READ MORE


Transaction Simplicity

By: Stephen J. Lubben


David Skeel and Thomas Jackson come at the important question of derivatives in bankruptcy by wondering why the Bankruptcy Code was largely left out of the Dodd-Frank Act.1 On one level, it is an odd question: Recent experience notwithstanding, the vast ...READ MORE

Dialogue, Deferred and Differentiated


By: Emily Hammond Meazell




When agency actions are challenged in court multiple times in an iterative fashion, the resulting dialogue offers insights into the features of the court/agency relationship that are not necessarily apparent in other contexts. In Deference and Dialogue in Administrative Law,1 I examine a ...READ MORE

The Impact of Public Disclosure on Equity Dispositions by Corporate Managers


By: David I. Walker




Year after year, the senior managers of public companies in the U.S. receive a large chunk of their compensation in the form of company equity—stock and options—and year after year, managers exercise options and sell shares. Between ...READ MORE


Houston, We Have a Problem: Does the Second Amendment Create a Property Right to a Specific Firearm?


By John L. Schwab & Thomas G. Sprankling




Ever since the Supreme Court’s 2008 decision in District of Columbia v. Heller,1 lower federal courts have endeavored to answer outstanding questions about the contours of the Second Amendment right. One issue that has received scant attention, ...READ MORE

Of Dialogue—and Democracy—in Administrative Law

By Jim Rossi


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When Antitrust Met WTO: Why U.S. Courts Should Consider U.S.-China Disputes in Deciding Antitrust Cases Involving Chinese Exports

  By: Dingding Tina Wang


Antitrust law is domestic, while WTO law is international. Domestic antitrust law generally targets private conduct, while WTO law targets state conduct. What happens when private and state conduct mix? The peculiar, hybrid nature of China’s ...READ MORE


Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment

  By: Michael Coenen


Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free speech right, these courts tend to treat an individual’s expression as either protected, in which ...READ MORE

“Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight”

  By: Peter L. Strauss


This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of “allocation.” Because the term “deference” muddles rather than clarifies the structure’s operation, this Essay ...READ MORE


Bakalar v. Vavra and the Art of Conflicts Analysis in New York: Framing a Choice of Law Approach for Moveable Property

By: Laurie Frey


The facts of Bakalar v. Vavra presented a familiar scenario in Holocaust-era art cases. A good faith purchaser, who thought he had bought clear title to a drawing, went to sell the drawing at auction in New York and ...READ MORE