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

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

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

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

 

Implied Public Rights of Action

By:  Seth Davis

 

This Article analyzes the federal courts’ power to provide public remedies when the legislature has been silent. Like private parties, the United States and the states regularly claim a right to judicial relief or a particular remedy that ...READ MORE

Escaping Entity-Centrism in Financial Services Regulation

By:  Anita K. Krug

 

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric ...READ MORE

Missing the Forest for the Trolls

By:  Mark A. Lemley & A. Douglas Melamed

 

Patent trolls are increasingly blamed for the growing costs of patent litigation and seemingly excessive damages awards and patent royalties. There is much to support these allegations. Trolls now account for a majority ...READ MORE

 

Predatory Pricing and Recoupment

By:  Christopher R. Leslie

 

Predatory pricing is a two-step strategy for securing monopoly profits. During the first step—the predation stage—a firm charges a price below its costs in the hope of driving its competitors out of the market by forcing them ...READ MORE

A New New Property

By:  David A. Super

 

Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that ...READ MORE

Pathetic Argument in Constitutional Law

By:  Jamal Greene

 

Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ...READ MORE

 

Intellectual Property Defenses

By:  Gideon Parchomovsky & Alex Stein

 

This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls ...READ MORE

Conventions of Agency Independence

By:  Adrian Vermeule

 

It is often said that the legal touchstone of agency independence is whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence. Many important agencies ...READ MORE

The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights

By:  Ronald J. Gilson & Jeffrey N. Gordon 

 

Equity ownership in the United States no longer reflects the dispersed share ownership of the canonical Berle-Means firm. Instead, we observe the reconcentration of ownership in the hands of institutional investment intermediaries, ...READ MORE

 

The Exceptions Clause as a Structural Safeguard

By:  Tara Leigh Grove

 

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an ...READ MORE

Just Undercompensation: The Idiosyncratic Premium in Eminent Domain

By:  Brian Angelo Lee

 

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property’s owners receive “just compensation,” which the Supreme Court has defined as equal to ...READ MORE