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

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

Judicial Backlash or Just Backlash? Evidence from a National Experiment

 

By: David Fontana & Donald Braman

 

When the Supreme Court decides a controversial issue, does it generate a distinctive public backlash? Or would a similar decision by Congress generate a similar reaction? Surprisingly, although these questions pervade debates over constitutional law, ...READ MORE

 

Unions, Corporations, and Political Opt-Out Rights After Citizens United

 

By: Benjamin I. Sachs

 

Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in ...READ MORE

Federalism as a Safeguard of the Separation of Powers

 

By: Jessica Bulman-Pozen

 

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in ...READ MORE

The Indefensible Duty to Defend

  By: Neal Devins & Saikrishna Prakash

 

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties ...READ MORE

 

The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions

By: Mark. P. Gergen, John M. Golden & Henry E. Smith

 

A brusque opinion by the U.S. Supreme Court in a patent case has launched a revolution in the law of equitable remedies. The Court’s opinion in eBay Inc. v. MercExchange, ...READ MORE

The Article II Safeguards of Federal Jurisdiction

By: Tara Leigh Grove

 

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks ...READ MORE

Marriage as Punishment

By: Melissa Murray

 

Popular discourse portrays marriage as a source of innumerable public and private benefits: happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the ...READ MORE

 

Strategic Spillovers

By: Daniel B. Kelly

 

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in ...READ MORE

Deference and Dialogue in Administrative Law

The One Percent Problem

 

The Best Available Technology Standard

 

The Design of Agency Interactions