International Comity in American Law

By: William S. Dodge

 

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of ...READ MORE

Administering Section 2 of the Voting Rights Act After Shelby County

By:  Christopher S. Elmendorf & Douglas M. Spencer

 

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory ...READ MORE

Is the Price Right? An Empirical Study of Fee-Setting in Securities Class Actions

By:  Lynn A. Baker, Michael A. Perino and Charles Silver

 

Every year, fee awards enable millions of people to obtain access to justice and strengthen the deterrent effect of the law by motivating lawyers to handle class actions. But little research ...READ MORE

 

Free Exercise Lochnerism

By:  Elizabeth Sepper

  

In this Article, I identify and critique a phenomenon I call Free Exercise Lochnerism. In promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York—a case symbolic of the ...READ MORE

The Long-Term Effects of Hedge Fund Activism

By:  Lucian A. Bebchuk, Alon Brav and Wei Jiang

 

We test the empirical validity of a claim that has been playing a central role in debates on corporate governance—the claim that interventions by activist hedge funds have a detrimental effect on the long-term ...READ MORE

Of Monsters and Men: Perpetrator Trauma and Mass Atrocity

By:  Saira Mohamed

 

In popular, scholarly, and legal discourse, psychological trauma is an experience that belongs to victims. While we expect victims of crimes to suffer trauma, we never ask whether perpetrators likewise experience those same crimes as trauma. Indeed, if ...READ MORE

 

Uncivil Obedience

By:  Jessica Bulman-Pozen & David E. Pozen

 

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded ...READ MORE

DNA by the Entirety

By:  Natalie Ram

 

The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information ...READ MORE

An Enduring, Evolving Separation of Powers

By: Jon D. Michaels

 

This Article sets forth the theory of an enduring, evolving separation of powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first ...READ MORE

 

Due Process, Class Action Opt Outs, and the Right Not to Sue

By: Ryan C. Williams

 

Over the past three decades, the Supreme Court has repeatedly insisted that due process requires that absent class members be given an opportunity to opt out of a class action seeking predominantly money damages. The Court’s ...READ MORE

Pooling Powers

By:  Daphna Renan

 

By “pooling” legal and other resources allocated to different agencies, the executive creates joint structures capable of ends that no single agency could otherwise achieve. Pooling destabilizes core conceptions of administrative law. According to one influential account, for ...READ MORE

From Contract to Status: Collaboration and the Evolution of Novel Family Relationships

By:  Elizabeth S. Scott & Robert E. Scott

 

The past decade has witnessed dramatic changes in public attitudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer ...READ MORE

 

Timing Brady

By:  Miriam H. Baer

 

Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by ...READ MORE

Private Enforcement’s Pathways: Lessons from Qui Tam Litigation

By:  David Freeman Engstrom

 

How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer ...READ MORE

The Negotiated Structural Constitution

By:  Aziz Z. Huq

 

The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government.  It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action ...READ MORE

 

Taking Images Seriously

By:  Elizabeth G. Porter

 

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts more than 150 billion photos. Courts spend millions on ...READ MORE

Forcings

By:  Lee Anne Fennell

 

Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been ...READ MORE

Dictatorships for Democracy: Takeovers of Financially Failed Cities

By:  Clayton P. Gillette

 

States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally ...READ MORE

 

The Administrative Origins of Modern Civil Liberties Law

By:  Jeremy K. Kessler

 

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, ...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