What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of the targeted territory is outmoded. Based on a careful examination of subsequent practice of the parties to the conventions,...
The Public Health Service Act (PHSA), codified at 42 U.S.C. §§ 201–300, confers federal authority to institute medical quarantine and isolation measures in response to outbreaks of specific infectious diseases. Congress’s authority to pass the PHSA is derived from the Commerce Clause of the U.S. Constitution. Until recently, the constitutionality of the PHSA’s...
Since its enactment, the Prison Litigation Reform Act of 1996 (PLRA) has obstructed prisoners from bringing suit in federal court. In the relatively uncommon cases where prison lawsuits do succeed under the PLRA, the statute authorizes courts to implement and enforce relief to curb the constitutional violation found in that case. In authorizing such judicial authority,...
One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of...
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...
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...
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...
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...
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...