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Articles 1 - 5 of 5
Full-Text Articles in Law
The New Major Questions Doctrine, Daniel Deacon, Leah Litman
The New Major Questions Doctrine, Daniel Deacon, Leah Litman
Law & Economics Working Papers
This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …
Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey
Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey
Law & Economics Working Papers
What does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (US Const. Article I, Section 8, Clause 1)? The definition of “tax” for constitutional purposes has become important in light of the Supreme Court’s 2012 decision in NFIB v. Sebelius, in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Affordable Care Act under the taxing power. This has led to commentators questioning …
May Hospitals Withhold Ventilators From Covid-19 Patients With Pre-Existing Disabilities? Notes On The Law And Ethics Of Disability-Based Medical Rationing, Samuel R. Bagenstos
May Hospitals Withhold Ventilators From Covid-19 Patients With Pre-Existing Disabilities? Notes On The Law And Ethics Of Disability-Based Medical Rationing, Samuel R. Bagenstos
Law & Economics Working Papers
Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’” This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the …
The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos
The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos
Law & Economics Working Papers
Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …
To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah
To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah
Law & Economics Working Papers
In Citizens United vs. FEC, the Supreme Court struck down a Federal ban on direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. The thesis of this Article is that by viewing Citizens United through the prism of theories about the corporate form, it is possible to understand why both the majority and the dissent departed from previous Supreme Court cases on the First Amendment rights of corporations, and to …