Archive: 2014

Free Speech and Guilty Minds

By:  Leslie Kendrick

 

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the ...READ MORE

Prosecuting Leakers the Easy Way: 18 U.S.C. § 641

By:  Jessica Lutkenhaus

 

18 U.S.C. § 641 prohibits the theft or misuse of federal government “things of value.” The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or ...READ MORE

Overcoming Administrative Silence in Prisoner Litigation: Grievance Specificity and the “Object Intelligibly” Standard

By:  Antonieta Pimienta

 

The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust available administrative remedies before filing a federal action challenging prison conditions. Thus, an inmate can only file a lawsuit in federal court after proceeding through each step ...READ MORE

 

On Mass Patent Aggregators

By: David L. Schwartz

 

Response to: Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117 (2013).

 

The debate about patent trolls is everywhere. From the op-ed pages of The Wall Street Journal and ...READ MORE

Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting

By:   Jarrod Shobe

 

All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition ...READ MORE

Tort Law vs. Privacy

By:  Eugene Volokh

 

Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the ...READ MORE

 

Manual Override? Accardi, Skidmore, and the Legal Effect of the Social Security Administration’s HALLEX Manual

By:  Timothy H. Gray

 

The Social Security Administration’s Disability Insurance program encompasses a mammoth adjudicatory and appellate process, rivaling in size the entire federal judiciary. The SSDI is principally governed by validly promulgated regulations, but the SSA also uses an ...READ MORE

An “Unfortunate Bit of Legal Jargon”: Prosecutorial Vouching Applied to Cooperating Witnesses

By:  Rajan S. Trehan

 

Vouching, which developed out of the Supreme Court’s desire to protect the jury’s right to evaluate credibility, traditionally forbids prosecutorial statements designed to enhance or attest to the credibility of a government witness. This Note examines ...READ MORE

Protecting Reliance

By:  Victor P. Goldberg

 

Reliance plays a central role in contract law and scholarship. One party relies on the other’s promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing ...READ MORE

 

Embedded International Law and the Constitution Abroad

  By: Sarah H. Cleveland

 

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Responsibility for Regime Change

By:  Jay Butler

 

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of ...READ MORE

The FTC and the New Common Law of Privacy

By:  Daniel J. Solove & Woodrow Hartzog

 

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal ...READ MORE

 

Contracting Around Citizens United

By:  Ganesh Sitaraman

 

The Supreme Court’s decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have ...READ MORE

Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v. Sebelius

By:  Arjun K. Jaikumar

 

The Public Health Service Act (PHSA), codified at 42 U.S.C. §§ 201–300, confers federal authority to institute medical quarantine and isolation measures in response to outbreaks of specific infectious diseases. Congress’s authority to pass the PHSA is ...READ MORE

Judges Behind Bars: The Intrusiveness Requirement’s Restriction on the Implementation of Relief Under the Prison Litigation Reform Act

By:  Kiira J. Johal

 

Since its enactment, the Prison Litigation Reform Act of 1996 (PLRA) has obstructed prisoners from bringing suit in federal court. In the relatively uncommon cases where prison lawsuits do succeed under the PLRA, the statute authorizes courts ...READ MORE

 

Borrowing by Any Other Name: Why Presidential “Spending Cuts” Would Still Exceed the Debt Ceiling

Neil H. Buchanan* and Michael C. Dorf**

 

On multiple occasions since mid-2011, the United States has come perilously close to exhausting its borrowing authority under a statutory limit commonly called the “debt ceiling.” In prior work, we argued that, in the event ...READ MORE

Constitutional Nondefense in the States

By:  Katherine Shaw

 

Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, ...READ MORE

 

Elections and Alignment

By:  Nicholas O. Stephanopoulos

 

Election law doctrine has long been dominated by rights-and-interests balancing: the weighing of the rights burdens imposed by electoral regulations against the state interests that the regulations serve. For the last generation, the election law literature ...READ MORE

Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law

By:  Leo E. Strine, Jr.

 

In his essay, The Myth That Insulating Boards Serves Long- Term Value, Professor Lucian Bebchuk draws a stark dichotomy between so-called “insulation advocates” and proponents of shareholderdriven direct democracy. This Essay begins by rejecting this crude ...READ MORE