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Full-Text Articles in Law
What Is The Optimal Basis For Imposing Government Liens?, Randall K. Johnson
What Is The Optimal Basis For Imposing Government Liens?, Randall K. Johnson
Faculty Works
By presenting a detailed case study, which focuses on who gets subjected to government liens, this essay helps U.S. states to make more informed decisions. It seeks to do so by critically assessing Illinois’ historic approach to lien imposition and enforcement, in part, because this state had the most forced sales of real property in recent years. In addition, Illinois also generated the largest amount of related economic losses in the U.S. during that same time period. This state did so despite adhering to the old majority rule for turning over surplus value from such sales. That rule required creditors …
Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters
Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters
Faculty Scholarship
The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …
The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters
The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters
All Faculty Scholarship
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Articles
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris
All Faculty Scholarship
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu
All Faculty Scholarship
Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.
Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney
Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney
Articles, Book Chapters, & Popular Press
This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …
The Effects Of Intent: Do We Know How Legal Standards Work?, Theodore Eisenberg, Sheri Lynn Johnson
The Effects Of Intent: Do We Know How Legal Standards Work?, Theodore Eisenberg, Sheri Lynn Johnson
Cornell Law Faculty Publications
No one knows how the intent standard works in racial discrimination cases, though many have speculated. To test the speculation, this study examines how the intent standard actually operates. Its findings cast doubt on whether we really know how any legal standard functions.
What Shapes Perceptions Of The Federal Court System?, Theodore Eisenberg, Stewart J. Schwab
What Shapes Perceptions Of The Federal Court System?, Theodore Eisenberg, Stewart J. Schwab
Cornell Law Faculty Publications
Two hundred years is a long time. It is too long after formation of a court system to ask such basic questions as (1) what cases occupy the system, and (2) whether even informed professionals have a reasonable picture of what goes on within the system. Nonetheless, continuing debate about the volume and makeup of litigation in general and of federal court litigation in particular requires legal scholars to address these questions. Professor Marc Galanter's work on the litigation explosion questions central assumptions about the nature and growth of the federal docket. Our prior work undermines widely held views about …
Explaining Constitutional Tort Litigation: The Influence Of The Attorney Fees Statute And The Government As Defendant, Stewart J. Schwab, Theodore Eisenberg
Explaining Constitutional Tort Litigation: The Influence Of The Attorney Fees Statute And The Government As Defendant, Stewart J. Schwab, Theodore Eisenberg
Cornell Law Faculty Publications
No abstract provided.
The Importance Of Section 1981, Theodore Eisenberg, Stewart J. Schwab
The Importance Of Section 1981, Theodore Eisenberg, Stewart J. Schwab
Cornell Law Faculty Publications
The Reality Of Constitutional Tort Litigation, Theodore Eisenberg, Stewart J. Schwab
The Reality Of Constitutional Tort Litigation, Theodore Eisenberg, Stewart J. Schwab
Cornell Law Faculty Publications