Constitutional rules are norms whose application depends on an interpreter’s identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive...
No. 7
For over half a century, New York City’s groundbreaking Landmarks Preservation Law has protected the city’s most significant structures and spaces. Yet today, some of New York’s most celebrated interior landmarks are closed off to the public, the very group for whose benefit the spaces have been protected. In order to receive a landmark designation, an interior must be “customarily open...
The United States taxes both corporations and shareholders on corporate profits. In principle, the United States could rely on only one of these taxes, as many commentators have suggested. Although choosing to tax the corporation or its owners may seem like taking money from one pocket or the other, this Essay emphasizes a key difÂference: These taxes prompt different planning. Relying on one or the other mitigates some distortions and leaks,...
The Supreme Court’s denial of certiorari in Madden v. Midland Funding, LLC leaves a dangerous precedent standing in the Second Circuit that poses a significant risk to the consumer-credit market writ large. This Note highlights the dangers that the Madden ruling presents and in so doing cautions against the adoption of the ruling by other circuits. Moreover, given the centrality of New York in the financial economy...
Administrative law presumes a neat system of agency rulemaking and adjudication followed by judicial review. But the reality of the administrative state departs starkly from this model. One such departure is the use of audited self-regulatory organizations (SROs)—private organizations comprised of specific industries that formulate binding law to regulate themselves. Although SROs operate subject to the oversight of federal agencies, their power...