Technological Innovation, International Competition, and the Challenges of International Income Taxation

By: Michael J. Graetz & Rachael Doud

Because of the importance of technological innovation to economic growth, nations strive to stimulate and attract the research and development (“R&D”) that leads to that innovation and to make themselves hospitable environments for the ...READ MORE

No Exit? Withdrawal Rights and the Law of Corporate Reorganizations

  By:  Douglas G. Baird & Anthony J. Casey

 

Bankruptcy scholarship is largely a debate about the comparative merits of a mandatory regime on one hand and bankruptcy by free design on the other. By the standard account, the current law ...READ MORE

Perfecting Criminal Markets

  By: David Michael Jaros

 

From illicit drugs to human smuggling to prostitution, legislators may actually perfect the very criminal markets they seek to destroy. Criminal laws often create new dangers and new criminal opportunities. Criminalizing drugs creates opportunities to sell ...READ MORE

 

The Agency Class Action

  By: Michael D. Sant’Ambrogio & Adam S. Zimmerman

 

The number of claims languishing on administrative dockets has become a “crisis,” producing significant backlogs, arbitrary outcomes, and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless ...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

 

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