This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on...
An increasing number of states have passed laws aimed at preventing the costs of litigation from burdening legitimate petitioning activity. These laws frequently include procedural protections, such as a special motion to dismiss. When state law claims are instead brought in federal court, these laws and their procedural protections implicate the Erie doctrine and the Rules of Decision Act, which has led some federal courts not to apply...
Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, often find themselves torn between competing obligations to defend statutes, on the one hand, and to maintain fidelity to state and federal constitutions, on the other. This Article takes up the...
Election law doctrine has long been dominated by rights-and- interests balancing: the weighing of the rights burdens imposed by electoral regulations against the state interests that the regulations serve. For the last generation, the election law literature has emphasized structural values that relate to the functional realities of the electoral system, competition chief among them. This Article introduces a new structural theory—the alignment...
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...
18 U.S.C. § 924(c)(1)(B)(ii) imposes an additional mandatory minimum sentence of thirty years for the possession of a machine gun during and in relation to a drug trafficking or violent crime. Prior to 2010, federal courts commonly excluded a mens rea requirement from § 924(c)(1)(B)(ii) by reasoning that machine gun possession was a sentencing factor, not an element...
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...
For almost two decades now, courts have struggled with a seemingly irreconcilable conflict between Rule 23 class actions and Rule 68 offers of judgment. The apparent tension between these two rules arises in the limbo between the filing of a putative class representative’s complaint and the court’s resolution of the class certification motion. During this time the...
The purpose of this Note is to analyze one widely enacted category of abortion regulations—parental involvement laws—and the effect of such regulations on their targeted group—pregnant minors. According to the Supreme Court, abortion regulations are constitutional only if they satisfy the undue burden standard, as expressed in Planned Parenthood v. Casey. By relying...