McCulloch and the Thirteenth Amendment

  By: Jennifer Mason McAward

 

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch ...READ MORE

The Thirteenth Amendment and the Regulation of Custom

  By: Darrell A.H. Miller

 

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the tech- nical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power ...READ MORE

Four Reservations on Civil Rights Reasoning By Analogy: The Case of Latinos and Other Nonblack Groups

  By: Richard Delgado

 

The protection of civil rights in the United States encompasses remedies for at least five separate groups. Native Americans have suffered extermination, removal, denial of sovereignty, and destruction of culture; Latinos, conquest and the indignities of a ...READ MORE

 

Originalism, Abortion, and the Thirteenth Amendment

  By: Andrew Koppelman

 

Does an originalist reading of the Thirteenth Amendment support a right to abortion? Not long ago a negative answer seemed obvious enough to make the question silly. Since then, however, originalism has become more sophisticated. It is ...READ MORE

Pluralism and Perfectionism in Private Law

By: Hanoch Dagan

Many private law scholars strive to divine broad, unified normative theories of property, contracts, torts, and restitution (or, at times, even of private law as a whole). These monist accounts suggest that one regulative principle guides the various ...READ MORE

“Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight”

  By: Peter L. Strauss

 

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of “allocation.” Because the term “deference” muddles rather than clarifies the structure’s operation, this Essay ...READ MORE

 

Stock Unloading and Banker Incentives

 

By: Robert J. Jackson, Jr.

 

Congress has directed federal regulators to oversee banker pay. For the first time, these regulators are now scrutinizing the incentives of risk-takers beyond the bank’s top executives. Like most public company managers, these bankers are increasingly ...READ MORE

On Avoiding Avoidance, Agenda Control, and Related Matters

By: Henry Paul Monaghan

 

Legal scholars have long posited that, heuristically at least, two basic adjudicatory models—the dispute resolution model and the law declaration model—compete for the Court’s affection along a wide spectrum of issues. The former focuses upon judicial resolution ...READ MORE

Recognizing Race

By: Justin Driver

 

Judges habitually decide whether to identify individuals racially within the context of judicial opinions. Yet this practice, which this Essay labels “recognizing race,” has thus far gone virtually unexplored by legal scholars. The dearth of scholarly attention to ...READ MORE

 

Transaction Consistency and the New Finance in Bankruptcy

By: David A. Skeel, Jr. & Thomas H. Jackson

 

Neither scholars nor the derivatives industry have fully explored the question of how the treatment of derivatives and repos in bankruptcy would change if their exemption from a number of bankruptcy’s core ...READ MORE

Managing Moral Risk: The Case of Contract

 

Rethinking the Laws of Good Faith Purchase

Fair Trespass

 

Profiling Originalism

Stimulus and Civil Rights