Judges must consider domestic violence when determining child custody under state law. Many states guide the custody inquiry with statutory presumptions against awarding custody to abusers. With custody outcomes often hinging on allegations of domestic violence, judges increasingly turn to experts for answers. But expert assessments of domestic violence in the child custody context lack a uniform and reliable methodology. As this Note reveals,...
Issue Archives
Bankruptcy scholarship is largely a debate about the comparativemerits of a mandatory regime on one hand and bankruptcy by free designย on the other. By the standard account, the current law of corporateย reorganization is mandatory. Various rules that cannot be avoided ensureย that investorsโ actions are limited and they do not exercise theirย rights against specialized assets in a way that destroys the value of aย business as a whole. These...
This Essay uses Peter Straussโs work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (โexpert agenciesโ) with respect to presidential oversight. Over the last three decades, agencies promulยญgating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both...
This Essay offers a specification of the rule of lawโs demands of administrative law and government inspired by Professor Peter L. Straussโs scholarship. It identifies five principlesโauthorization, notice, justification, coherence, and procedural fairnessโwhich provide a framework for an account of the rule of lawโs demands of administrative governance. Together these principles have intriguing results for the evalยญuation of administrative...
It is often said that the legal touchstone of agency independence isย whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence.ย Many important agencies whose heads lack for-cause tenureย protection are conventionally treated as independent, while otherย agencies whose heads enjoy for-cause tenure protection are by allย accounts thoroughly dependent upon organized...
It has been an obsession of modern civil procedure to design ways toย reveal more before trial about what will happen during trial. Litigantsย today, as a matter of course, are made to preview the evidence they willย use. This practice is celebrated because standard theory says it shouldย induce the parties to settle; why incur the expenses of trial, if everyoneย knows what will happen? Rarely noted, however, is one complication:ย The impact of...
In Bostick and Drayton, the Supreme Court announced that perย se rules were inappropriate in answering the Fourth Amendment seizureย question, โWould a reasonable citizen feel free to leave?โ But when, ifย ever, can one factor in a pedestrian encounter with police be so inherentlyย coercive that it becomes dispositive? The D.C. and Fourth Circuitsย explicitly disagree over whether police retention of identification documentsย constitutes...
Over the past decade, the crime of illegal reentry has risen to prominence.ย It is not only the most common federal immigration charge, butย also the most prosecuted federal crime. The cost of enforcing illegalย reentry offenses has grown in kind, and Immigration and Customsย Enforcement (ICE) is now particularly resource-strapped. Against thisย backdrop, this Note addresses an ambiguous provision in the statuteย governing illegal reentry, the...
American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which...
The 2008 financial crisis raised puzzles important for understanding how the capital market prices common stocks and in turn, for the intersection between law and finance. During the crisis, there was a dramatic five-fold spike, across all industries, in โidioยญsyncratic riskโโthe volatility of individual-firm share prices after adjustment for movements in the market as a whole.
This phenomenon is not limited to the most recent financial...