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Articles 1 - 18 of 18
Full-Text Articles in Law
Deliberation's Demise: The Rise Of One-Party Rule In The Senate, Kathleen Clark, Tiefer Charles
Deliberation's Demise: The Rise Of One-Party Rule In The Senate, Kathleen Clark, Tiefer Charles
Scholarship@WashULaw
Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of …
Political And Non-Political Speech And Guns, Gregory P. Magarian
Political And Non-Political Speech And Guns, Gregory P. Magarian
Scholarship@WashULaw
Constitutional rights depend on justifications. Some combination of theory, his- tory, and practical reasoning needs to establish why and to what extent a given right warrants legal protection. The justifications that courts and theorists articulate for a given right determine the right’s breadth and the specific contours of its protection. Justification has particular importance at the formative stage of a newly recognized constitutional right. At present, courts are building doctrine around the Second Amendment “right of the people to keep and bear Arms,”1 recognized as an individ- ual right just over a decade ago in District of Columbia v. Heller.2 …
The Regulatory Accountability Act And The Future Of Apa Revision, Ronald M. Levin
The Regulatory Accountability Act And The Future Of Apa Revision, Ronald M. Levin
Scholarship@WashULaw
This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that …
Fiduciary Principles In Banking Law, Andrew F. Tuch
Fiduciary Principles In Banking Law, Andrew F. Tuch
Scholarship@WashULaw
When are banks fiduciaries of their customers and clients? This question is of more than theoretical interest given the organizational structure of modern financial institutions and the broad-ranging functions they perform. In this chapter of the Oxford Handbook of Fiduciary Law, I canvass fiduciary principles in banking law. I consider when fiduciary duties exist and what they require, the range of remedies available for breach, and the various techniques banks use to exclude or modify fiduciary duties. One puzzling feature of the legal landscape is that clients bring actions less often than banks’ size and conduct might suggest, which contributes …
Federally Funded Slaving, Rafael I. Pardo
Federally Funded Slaving, Rafael I. Pardo
Scholarship@WashULaw
This Article presents a new frame of reference for thinking about the federal government’s complicity in supporting the domestic slave trade in the antebellum United States. While scholars have accounted for several methods of such support, they have failed to consider how federal bankruptcy legislation during the 1840s functionally created a system of direct financial grants to slave traders in the form of debt discharges. Relying on a variety of primary sources, including manuscript court records that have not been systematically analyzed by any published scholarship, this Article shows how the Bankruptcy Act of 1841 enabled severely indebted slave traders …
When Audiences Object: Free Speech And Campus Speaker Protests Articles & Essays, Gregory P. Magarian
When Audiences Object: Free Speech And Campus Speaker Protests Articles & Essays, Gregory P. Magarian
Scholarship@WashULaw
In March 2017, conservative author Charles Murray arrived to speak at Middlebury College in Vermont, invited by a student affiliate of the American Enterprise Institute. Murray planned to discuss his 2013 book, Coming Apart: The State of White America, 1960-2010. Many Middlebury students and faculty, however, deplored Murray for an earlier book, 1994’s The Bell Curve, where he drew specious connections between race and intelligence. Others simply considered Murray an intellectual lightweight who didn’t warrant a speaking slot at the prestigious college. Murray’s critics objected to the Political Science Department’s co-sponsorship of his ppearance and the college president’s plan to …
Teacher For The Nation, Daniel Epps
Teacher For The Nation, Daniel Epps
Scholarship@WashULaw
In these brief remarks, delivered at the Hastings Law Journal's Symposium on the Jurisprudence of Justice Kennedy, I discuss Justice Kennedy's impact on American law. I reflect on the events that led to Justice Kennedy's appointment to the Supreme Court and discuss his vision of the Justices as teachers for the nation and how that vision seems to have informed his view of judicial review.
Reassessing Self-Dealing: Between No Conflict And Fairness, Andrew F. Tuch
Reassessing Self-Dealing: Between No Conflict And Fairness, Andrew F. Tuch
Scholarship@WashULaw
Scholars have long disagreed on which of two rules is more effective when a fiduciary engages in self-dealing. Some defend the “strict” no-conflict rule, which categorically bans self-dealing. Others prefer the “flexible” and “pragmatic” fairness rule, which allows self-dealing if it is fair to beneficiaries. The centrality of this debate cannot be overstated: corporate law as a field is fundamentally concerned with self-dealing by fiduciaries. Yet a lack of firm data means that this debate has dragged on for decades, with no end in sight. This article makes a simple but powerful point: the entire debate is somewhat misguided because, …
A Study Of The Relationship Between Law School Coursework And Bar Exam Outcomes, Robert R. Kuehn
A Study Of The Relationship Between Law School Coursework And Bar Exam Outcomes, Robert R. Kuehn
Scholarship@WashULaw
The recent decline in bar exam passage rates has triggered speculation that the decline is being driven by law students taking more experiential courses and fewer bar-subject courses. These concerns arose in the absence of any empirical study linking certain coursework to bar exam failure.
This article addresses speculation about the relationship between law school coursework and bar exam outcomes. It reports the results of a large-scale study of the courses of over 3800 graduates from two law schools and the relationship between their experiential and bar-subject coursework and bar exam outcomes over a ten-year period. At both schools, the …
Corporate Stewardship, Danielle D'Onfro
Corporate Stewardship, Danielle D'Onfro
Scholarship@WashULaw
Harnessing strategies both ancient and modern — hostages, surety, gatekeepers, and blame — this Article proposes a new tool for achieving more efficient corporate compliance. It begins with the premise that a handful of well-known factors, including agency costs, misaligned time-horizons, cognitive biases, and insufficiently deterrent legal regimes sometimes cause companies to ignore important public safety obligations even when those obligations are cost-effective and welfare-maximizing. The result is systemic undercompliance with certain regulatory obligations. Despite the seriousness of this problem, currently available options for motivating compliance mostly fail to make public-safety regulations sufficiently salient to the individuals who perform the …
Immigrant Sanctuary As The 'Old Normal': A Brief History Of Police Federalism, Trevor George Gardner
Immigrant Sanctuary As The 'Old Normal': A Brief History Of Police Federalism, Trevor George Gardner
Scholarship@WashULaw
Three successive presidential administrations have opposed immigrant sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigration enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular history of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridical fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driving this longstanding …
Right At Home: Modeling Sub-Federal Resistance As Criminal Justice Reform, Trevor George Gardner
Right At Home: Modeling Sub-Federal Resistance As Criminal Justice Reform, Trevor George Gardner
Scholarship@WashULaw
Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments. This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform. In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition. The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law …
Data-Driven Constitutional Avoidance, Gregory P. Magarian, Lee Epstein, James L. Gibson
Data-Driven Constitutional Avoidance, Gregory P. Magarian, Lee Epstein, James L. Gibson
Scholarship@WashULaw
This article uses a case study to explain how empirical analysis can promote judicial modesty. In Matal v. Tam, the U.S. Supreme Court invoked the First Amendment to strike down the Lanham Act's bar on federal registration of "disparaging" trademarks. The Tam decision has great constitutional significance. It expands First Amendment coverage into a new field of economic regulation, and it deepens the constitutional prohibition on viewpoint-based speech regulations. This article contends that empirical analysis could have given the Court a narrower basis for the Tam result, one that would have avoided the fraught First Amendment issues the Court decided. …
How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman
How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman
Scholarship@WashULaw
The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in …
Forum Selling Abroad, Jens Frankenreiter, Stefan Bechtold, Daniel Klerman
Forum Selling Abroad, Jens Frankenreiter, Stefan Bechtold, Daniel Klerman
Scholarship@WashULaw
Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff manipulation of …
Proxy Advisor Influence In A Comparative Light, Andrew F. Tuch
Proxy Advisor Influence In A Comparative Light, Andrew F. Tuch
Scholarship@WashULaw
The reform of proxy advisors is on the U.S. regulatory agenda, with debate focusing on the extent of influence that these actors exert over institutional investors and corporate managers. But the debate examines the U.S. position in isolation from other systems. If we broaden our focus, we see that the factors usually cited for proxy advisors’ influence exist similarly in the United Kingdom but that proxy advisors there exert significantly weaker influence than they do in the United States. Why this difference when we would expect a similar role for proxy advisors in both systems based on the presence of …
The Foundations Of Anglo-American Corporate Fiduciary Law, Andrew F. Tuch
The Foundations Of Anglo-American Corporate Fiduciary Law, Andrew F. Tuch
Scholarship@WashULaw
How does legal doctrine form, why does it change, and why do doctrines with a common starting point, in legal systems with a shared heritage, diverge? This essay reviews and critiques a book by David Kershaw that addresses these questions. The book charts the evolution of corporate fiduciary law in the United Kingdom and United States and, comparing the two systems, explains how and why the respective legal regimes evolved as they did. Kershaw weighs in on contested U.S. scholarly debates, confronting the common claim that doctrinal change is less the product of internal logic or strict precedent than a …
Mens Rea Reform And Iis Discontents, Benjamin Levin
Mens Rea Reform And Iis Discontents, Benjamin Levin
Scholarship@WashULaw
This article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …