Across the First Amendment, the distinction between for-profit businesses and nonprofit organizations is in trouble. In recent years, courts have rejected this distinction in the context of free-speech challenges to campaign-finance restrictions and free-exercise claims to obtain legal exemptions from health-care regulations. Although there is a great deal of popular...
By “pooling” legal and other resources allocated to different agencies, the executive creates joint structures capable of ends that no single agency could otherwise achieve. Pooling destabilizes core conceptions of administrative law. According to one influential account, for example, Congress exercises control over the bureaucracy through agency design. Pooling,...
Since its formation, the Commodity Futures Trading Commission (CFTC) has taken a hands-off approach with respect to its oversight of the futures industry. It has relied on self-regulatory organizations (SROs)—namely, exchanges such as the Chicago Mercantile Exchange and associations such as the National Futures Association (NFA). The Dodd–Frank Act (Dodd–Frank),...
Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court’s hands-off approach, have sought reform along three axes:...
For decades, American fashion designers have been fighting, to no avail, for a federal law that protects their designs. In light of this inaction at the federal level, this Note explores the possibility of making use of the states’ traditional role as “laboratories of democracy” and passing a state law protecting works of fashion, specifically garment designs....
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated behaviors that require the weighing...
This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex- discrimination argument’s evanescence in contemporary marriage litigation, this Essay draws lessons about...
How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer protection. Yet legal scholars have not offered sustained theoretical or empirical analysis of how private...
In a recent case, the Eighth Circuit, following the lead of other courts interpreting Minnesota law, hinted that a plaintiff may not be able to pursue an unjust-enrichment claim if a statutory cause of action is available. It did so by calling unjust enrichment an equitable remedy and invoking the “irreparable injury rule,” which states that a plaintiff may not...