Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that property rights long have offered owners of real property.
As Reich himself predicted, procedural rights have proven largely ineffectual, especially for low-income people....
In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entity centric, therefore,...
Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement—which copyright law grants authors in order to render its exclusive rights operational—has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright...
Predatory pricing is a two-step strategy for securing monopoly profits. During the first step—the predation stage—a firm charges a price below its costs in the hope of driving its competitors out of the market by forcing them to sell at a loss as well. If it succeeds, the firm can proceed to the second step—the recoupment stage. After it has the market to itself, the now-dominant firm charges a monopoly price in an effort to recoup the...
The Mandatory Victims Restitution Act requires restitution for federal crimes involving property. In particular, the defendant is required to return any property taken, or, if return is impossible, to pay for the victim’s loss, which may be offset by a partial return of the property. In mortgage fraud cases, this usually entails calculating the lender’s loss—an unpaid loan—and offsetting that loss by the value of the collateral for...
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When governmental actors offend federal rights, victims are often left with no one to hold accountable in federal courts. This Article explores this accountability gap in cases involving local officials’ violations of the Constitution. Local government, after all, is the layer of government that is often closest to our daily lives, from law enforcement to education. This Article argues that as a descriptive matter, contrary...
Lower courts disagree about whether and when the Fifth Amendment permits prosecutors to raise an adverse inference of guilt from a criminal suspect’s silence. In Salinas v. Texas, the Supreme Court introduced a new wrinkle into the constitutional analysis: Suspects must first expressly invoke their right to remain silent during police questioning in order to later claim protection for that silence at trial. Significantly, silence...
Since it was decided in 2003, Lawrence v. Texas has underwritten the effort to expand access to marriage to same-sex couples. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage—same-sex or otherwise. Instead, Lawrence was a case about criminal sex and more specifically about limiting the state’s authority to regulate and...