Introduction A central lesson of the financial crisis of 2007–2008 was that firms behaving like banks should be regulated like banks. Nonbanks that perform the same economic function as banks—so-called “shadow banks”—create the same risks and demand the same regulatory response as depository institutions with bank charters. The principal legislative reform passed in the wake […]
In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping...
Introduction In his recent essay Between Scylla and Charybdis: Taxing Corporations or Shareholders (or Both), Dean David Schizer elucidates the complexities involved in choosing how to divide the tax burden on corporate profits between a tax paid by the corporation itself and one paid by its shareholders. He emphasizes the important point that strategic behavioral […]
Introduction In Fisher v. University of Texas in June 2016, the Supreme Court upheld the use of race-conscious affirmative action in college admissions. While recognizing a university’s interest in the educational benefits that derive from a diverse student body, Justice Kennedy cautioned in the majority opinion: “A university’s goals cannot be elusory or amorphous—they must […]
Introduction The Judicial Conference of the United States is charged with “carry[ing] on a continuous study of the operation and effect” of the national rules of court procedure promulgated under the Rules Enabling Act. The cycle of rulemaking regularly produces amendments that supersede or abrogate rules. Do the now-dead versions of a rule have any […]
Introduction Evidence compellingly demonstrates—as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA)—that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. In 2011, a […]
Introduction The Constitution protects us from criminal conviction unless the state can prove guilt beyond a reasonable doubt. However, after defining reasonable doubt, many trial courts will then instruct jurors “to search for the truth” of what they think really happened. Defendants have argued that such truth-related language reduces the state’s burden of proof to […]
Introduction Pressure is building again for Congress to reform patent law. Various proposals would reduce patent-litigation costs through fee shifting, delaying discovery, or allowing manufacturers to defend suits on behalf of their customers. Eluding consideration, however, is one simple change that might eliminate millions or even billions of dollars worth of waste across the entire […]
Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?
This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree...