The Supreme Court’s decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third...
All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition exists because scholars generally give little consideration to the underlying actors and their evolving roles in the drafting...
In his essay, The Myth That Insulating Boards Serves Long-Term Value, Professor Lucian Bebchuk draws a stark dichotomy between so-called “insulation advocates” and proponents of shareholder-driven direct democracy. This Essay begins by rejecting this crude divide between “good” and “evil,” and focuses instead on the practical realities surrounding...
Some of the most interesting discussions of cost-benefit analysis focus on exceptionally difficult problems, including catastrophic scenarios, “fat tails,” extreme uncertainty, intergenerational equity, and discounting over long time horizons. As it operates in the actual world of government practice, however, cost-benefit analysis usually does not need to explore...
The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. In part because of the limited availability of judicial review in this area, some commentators have suggested that presidential authority has become “unbounded” by law and is now governed only or primarily by politics. At the same...
Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likelyto establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide...
China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in...