Digital Commons Network^™

On Regulatory Discord And Procedure, Elizabeth Chamblee Burch

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Businesses are increasingly global. But domestic courts’ jurisdiction remains largely provincial; both public and private regulators have overlapping, mismatched authority. Regulatory discord is readily apparent in consumer protection cases. When the Dodd-Frank Wall Street Reform and Consumer Protection Act empowered state regulators while simultaneously creating an encompassing federal regulator—the Consumer Financial Protection Bureau—it further contributed to overlap between federal agencies, states, and private litigation.

Whether this regulatory magnetism is optimal in terms of fundamental goals like compensation and deterrence is a hotly debated normative and empirical question. Yet, one need not wade too far into the substantive debate to appreciate …

Constructing Issue Classes, Elizabeth Chamblee Burch

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As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — …

Enforcing Immigration Equity, Jason A. Cade

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Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for …

Zivotofsky Ii's Two Visions For Foreign Relations Law, Harlan G. Cohen

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The five opinions in Zivotofsky v. Kerry – four by the Supreme Court’s Republican-nominated Justices – exposed fault-lines over foreign relations law that have remained hidden in many of the Court’s other cases. This short essay, part of an AJIL Unbound Agora on the case, explores the most notable of these fissures – that between Justice Kennedy, who wrote the majority opinion, and Chief Justice Roberts, who dissented. Their disagreement in this case highlights the two Justices’ very different visions of U.S. foreign relations law and reveals the dynamic that has defined the direction of the Court over the last …

Deciphering The Supreme Court's Opinion In Wynne, Walter Hellerstein

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In Wynne, the Supreme Court held that Maryland's personal income tax regime violated the dormant Commerce Clause because It taxed income on a residence and source basis without giving a credit to residents for in· come taxed on a source basis by other states. The Court suggested, how· ever, that a state may tax residents on all their Income without providing a credit for taxes paid by other states if the state did not tax nonresidents on income from sources within the state, even though such a taxing regime might result in double taxation of interstate commerce.

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2014, the United States Court of Appeals for the Eleventh Circuit, addressing an issue of first impression, rejected the district court's use of a Lone Pine case-management order as a means of testing the sufficiency of the plaintiffs' pleadings in a state law environmental torts case. The court also interpreted Florida law to mean that plaintiffs are not required to allege that groundwater contamination exceeded regulatory maximum contaminant levels for drinking water to maintain their claims and that they could recover "stigma" damages to their property without alleging actual contamination. The United States District Court for the Middle District …

The Price Of Corruption, Usha Rodrigues

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The Supreme Court recently held that campaign contributions under $5200 do not create a “cognizable risk of corruption.” It was wrong. This Essay describes a nexus of timely contributions and special-interest legislation. In the most noteworthy case, a CEO made a first-time $1000 donation to a member of Congress. The next day that representative introduced a securities bill tailored to the interests of the CEO’s firm.

Armed with this real-world account of how small-dollar campaign contributions coincided with favorable legislative action, the Essay reads McCutcheon v. Federal Election Commission with a critical eye. In McCutcheon the Supreme Court assumed that …

Formalism And Distrust: Foreign Affairs Law In The Roberts Court, Harlan G. Cohen

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When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the RobertsCourt foreign affairs law jurisprudence.

The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state laws, …

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

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High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …

Codifying Chevmore, Kent H. Barnett

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This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.

This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional …

The Open Access Advantage For American Law Reviews, Carol A. Watson, James M. Donovan, Caroline Osborne

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Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project ills this gap with specific findings on what authors and law reviews can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a …

Return Of The Jrad, Jason A. Cade

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Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. …

One Of The Perfect People, Ann Puckett

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This Article eulogizes Nancy P. Johnson.

Andrew B. Arnold's Fueling The Gilded Age: Railroads, Miners, And Disorder In Pennsylvania Coal Country, Laura Phillips Sawyer

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Andrew Arnold’s Fueling the Gilded Age explores the struggles for managerial control and economic power that erupted among coal miners, coal operators, and railroad executives in central Pennsylvania between 1872 and 1902. Rather than presenting an unassailable triumph of the railroads’ interests over labor, Arnold argues that the “coal industry defied order” (p. 3) and laborers exhibited “unexpected agency ” (p. 4, emphasis in original) by thwarting the plans of railroad executives to impose managerial capitalism from the top down. Instead, wage earners “refused to accept their designated fate as commodities” (p. 222) and thereby exerted influence on the institutional …

Formalism And Distrust: Foreign Affairs Law In The Roberts Court,, Harlan G. Cohen

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When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence. The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state …

The Responsible Corporation: Its Historical Roots And Continuing Promise, Larry D. Thompson

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The article focuses on the on the history of American corporations from the colonization period and its impact on private corporations such as venture capitalism. Topics discussed include legal and sustainable approach to corporate responsibility, role of laws in shaping corporate duties and behavior and devastating effect of excessive dividend payments. It also discusses the cases in which courts refuse to interfere with management's long-term decision making.

The Testamentary Foundations Of Commercial Arbitration, Peter B. Rutledge

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This Article offers the first systematic treatment of the relationship between commercial arbitration and testamentary arbitration. (By testamentary arbitration, I mean an arbitration clause contained in a will requiring beneficiaries to resolve differences over the estate by means of an enforceable decision by a private party rather than judicial resolution in a probate court.) Recent scholarship and jurisprudence have questioned the enforceability of these arrangements as incompatible with the requirement of a written "agreement" between parties to the arbitration. Contrary to these views, close examination of the historical record of testamentary arbitration leading to the Federal Arbitration Act's enactment reveals …

Rethinking Religious Minorities' Political Power, Hillel Y. Levin

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This Article challenges the assumption that small religious groups enjoy little political power. According to the standard view, courts, because of their countermajoritarian qualities, are indispensable for protecting religious minority groups from oppression by the majority. But this assumption fails to account for the many and varied ways in which the majoritarian branches have chosen to protect and accommodate even unpopular religious minority groups, as well as the courts’ failures to do so.

The Article offers a public choice analysis to account for the surprising majoritarian reality of religious accommodationism. Further, it explores the important implications of this reality for …

Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs

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This Article unites two disparate subjects of profound interest to legal scholars. One is fraud-on-the-market, reaffirmed late last term in Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton II). Probably the most important claim in the securities litigation universe, fraud-on-the-market is the sine qua non of almost every securities class action that is filed. The other subject consists of the work of Judges Frank Easterbrook and Richard Posner, the “superstars” of the current federal appellate bench.

My purpose is several-fold: first, to show that fraud-on-the-market’s evolution, up through and culminating in Halliburton II, has been driven in significant measure …

Taxing Compensatory Stock Rights Transferred In Divorce, Gregg Polsky, Kathleen Delaney Thomas

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Stock-based compensation has become increasingly prevalent in recent years. As a result, many high net worth divorces now result in the transfer of compensatory stock rights from the employee spouse to the nonemployee spouse as part of the marital settlement. Despite this growing trend, the tax consequences of these transfers have not yet been explored fully. This Article endeavors to fill this void and explain both the planning opportunities and potential pitfalls in transferring compensatory stock rights in divorce. These transfers can shift ordinary income from a high-bracket spouse to a lower-bracket spouse, creating a tax surplus that enlarges the …

Intentionalism Justice Scalia Could Love, Hillel Y. Levin

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Book review of The Nature of Legislative Intent by Richard Ekins (Oxford 2012).

Theorizing Precedent In International Law, Harlan G. Cohen

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Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a …

The Post-Postcolonial Woman Or Child, Diane Marie Amann

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This essay is based on remarks given as Distinguished Discussant for the 16th annual Grotius Lecture at the 2014 Annual Meeting of the American Society of International Law/Biennial Conference of the International Law Association. The essay examines the international law status of women, on the one hand, and children, on the other, through the contemporary lens of the post-postcolonial world and the historical lens of Hugo Grotius and the colonialist era. In so doing, the essay responds to the principal Grotius Lecture, "Women and Children: The Cutting Edge of International Law," which was delivered by Radhika Coomarswamy, NYU Global Professor …

Two-Time Presidents And The Vice-Presidency, Dan T. Coenen

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Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question, as it turns out, presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President totally ineligible for the Vice-Presidency? Is such a person barred from election to the Vice-Presidency even if that person remains appointable to that office? Is a twice-before-elected President, even if properly placed in the Vice-Presidency, incapable of succeeding from that office to the Presidency? And even if such a succession can occur, must the resulting term of service as President expire …

Intentionalism Justice Scalia Could Love, Hillel Y. Levin

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There is something useful, indeed beautiful, about a work that carefully and eloquently explores a new idea or reexamines an old one. The Nature of Legislative Intent is therefore useful and beautiful, and it offers much of philosophical value for textualist and non-textualist alike. but it offers little of practical consequence and is therefore unlikely to advance the ball outside of the hall of academia, not simply because of the failure of judges to take legal scholarship seriously (which is there loss, as well as sosciety's), but because on its own terms it cannot.

Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge

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The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that the …

The Once And Future Irrelevancy Of Section 12(G), Usha Rodrigues

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Among more fundamental reforms, the JOBS ACt of 2012 amended Section 12(g) of the Securities Exchange Act and sought to increase the number of shareholders (from 500 to 2000) that a firm must have before it must make public disclosures. Argument on the floor of Congress focused on the undue burden the provision placed on companies. This Article examines data that invalidates those anecdotal concerns.

Indeed, the data reveal important insights: First, my hand-collected dataset shows that, contrary to public concerns about Section 12(g)'s onerous burdens, it only affects a few firms - (less than three percent of those going …

Student Press Exceptionalism, Sonja R. West

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Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …

Good Cop -- Bad Cop: Police Violence And The Child’S Mind, Andrea L. Dennis

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Police violence against citizens lately has gripped the nation’s attention because of recent cases in Ferguson, Missouri; Staten Island, New York; Cleveland, Ohio; Baltimore, Maryland; and elsewhere. Children in those communities and nationwide have been directly and indirectly exposed to these well-publicized incidences of police killings and the aftermath of those killings.

Exposure to police violence may cause children physical, cognitive, emotional, and social trauma. Moreover, the exposure may negatively influence children’s mindsets regarding the criminal justice system and police.

Undoubtedly, these events of late are not the first and only instances in which children have been exposed to physically …

The Jury's Constitutional Judgment, Nathan Chapman

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Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …