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...
No. 2
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...