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

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

 

Delimiting Limitations: Does the Immigration and Nationality Act Impose a Statute of Limitations on Noncitizen Removal Proceedings?

By: Liliana Zaragoza

With the rate of noncitizen removal reaching its peak in 2011, it is no wonder that in recent years the Obama Administration, policymakers, and commentators across many fields have increasingly analyzed potential removal policy changes in light of ...READ MORE

Bad Guys in Bankruptcy: Excluding Ponzi Schemes From the Stockbroker Safe Harbor

  By: Samuel P. Rothschild

 

The Bankruptcy Code (“Code”) reflects tension between two important goals: minimizing systemic risk in the securities market and remedying securities fraud. To minimize the displacement in the securities market that a major bankruptcy in the industry ...READ MORE

When Antitrust Met WTO: Why U.S. Courts Should Consider U.S.-China Disputes in Deciding Antitrust Cases Involving Chinese Exports

  By: Dingding Tina Wang

 

Antitrust law is domestic, while WTO law is international. Domestic antitrust law generally targets private conduct, while WTO law targets state conduct. What happens when private and state conduct mix? The peculiar, hybrid nature of China’s ...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

“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

Bakalar v. Vavra and the Art of Conflicts Analysis in New York: Framing a Choice of Law Approach for Moveable Property

By: Laurie Frey

 

The facts of Bakalar v. Vavra presented a familiar scenario in Holocaust-era art cases. A good faith purchaser, who thought he had bought clear title to a drawing, went to sell the drawing at auction in New York and ...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

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

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

 

Due Process and “the Worst of the Worst”: Mental Competence in Sexually Violent Predator Civil Commitment Proceedings

By: John L. Schwab

 

Sexually Violent Predator (“SVP”) civil commitment statutes have been adopted by a number of states and by the federal government. The statutes provide for the indefinite post-incarceration detention of individuals whom the state determines have a strong ...READ MORE

Whose Applicable Guideline Range Is It Anyway? Examining Whether Nominal Career Offenders Can Receive Sentence Modifications Based on Retroactive Reductions in the Crack Cocaine Guidelines

 

By: Evan R. Kreiner

 

The recent reductions in the guideline range for federal crack cocaine offenses have spurred tens of thousands of motions for sentence modifications under 18 U.S.C. § 3582(c)(2) by individuals sentenced pursuant to the old, harsher crack cocaine ...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

Benefit Corporations: How to Enforce a Mandate to Promote the Public Interest

 

By: Briana Cummings

 

A new trend has emerged within the past decade: corporations that seek to turn a profit while affirmatively promoting the public interest. To accommodate this trend, six states have recently enacted legislation creating the benefit corporation, a for-profit ...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

 

“Knowingly” Ignorant: Mens Rea Distribution in Federal Criminal Law After Flores-Figueroa

  By: Leonid (Lenny) Traps

 

The Supreme Court has repeatedly and emphatically disfavored applying strict liability to ambiguous elements of federal criminal statutes. The presumption against strict liability has been most pronounced where the statute at issue contains a mens rea ...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