Tagged with "Vol. 112"

“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

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

 

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

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

 

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

Reframing the Right: Using Theories of Intangible Property to Target Honest Services Fraud After Skilling

By: Brette M. Tannenbaum

 

Few federal criminal statutes have been as widely charged—and widely criticized—as the honest services statute, 18 U.S.C. § 1346. Primarily, this is because federal prosecutors have used the statute to charge corrupt officials with mail or wire ...READ MORE

Time Waits for No Man—But Is Tolled for Certain Post-Judgment Motions: Federal Rule of Appellate Procedure 4(A)(4) and the Fate of Withdrawn Post-Judgment Motions

By: Lena Husani Hughes

 

In 2007, the Supreme Court, in Bowles v. Russell, determined that Federal Rule of Appellate Procedure 4(a)(6)’s appeal deadline is a jurisdictional requirement. Failure to meet the deadline cannot be excused, as it divests the court of ...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

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

Deterring Global Bribery: Where Public and Private Enforcement Collide

By: Rashna Bhojwani

 

The international community has become increasingly concerned with deterring global bribery. While the Foreign Corrupt Practices Act of 1977 (FCPA) serves as the dominant public enforcement mechanism, international arbitration tribunals function as the primary private enforcement mechanism, refusing ...READ MORE

 

Does Five Equal Three? Reading the Takings Clause in Light of the Third Amendment’s Protection of Houses

By: Thomas G. Sprankling

 

The Supreme Court’s 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for “public use” ...READ MORE