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Articles 1 - 30 of 34
Full-Text Articles in Law
Were The 1982 Merger Guidelines Old News?, Alan J. Meese, Sarah L. Stafford
Were The 1982 Merger Guidelines Old News?, Alan J. Meese, Sarah L. Stafford
Faculty Publications
This paper examines the impact of the 1982 Department of Justice Merger Guidelines on the stock market prices of publicly traded firms in the United States. We argue that those Guidelines were perceived by the market as a real change in enforcement policy that would result in substantial deregulation of mergers throughout the economy. We conduct an event study of S&P 500 firms to test this hypothesis and find evidence of a significant positive effect on the stock prices of firms in moderately concentrated industries subject to antitrust regulation, the firms for which the 1982 Guidelines articulate a substantially less …
One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl
One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl
Faculty Publications
This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Faculty Publications
No abstract provided.
Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu
Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu
Faculty Publications
This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …
Protests In Peril, Timothy Zick
Crimmigration-Counterterrorism, Margaret Hu
Crimmigration-Counterterrorism, Margaret Hu
Faculty Publications
The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigrationcounterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to …
Taxing Systemic Risk, Eric D. Chason
Taxing Systemic Risk, Eric D. Chason
Faculty Publications
A tax on the harmful elements of finance—a tax on systemic risk—would raise revenue and also lower the likelihood of future crisis. Financial institutions, which pay the tax, would try to minimize its cost by lowering their systemic risk. In theory, a tax on systemic risk is perfect policy. In practice, however, this perfect policy is unattainable. Tax laws need clear definitions to be administrable. Our current understanding of systemic risk is too abstract and too metaphorical to serve as a target for taxation.
Despite the absence of a clear definition of systemic risk, academics and policy makers continue to …
Algorithmic Jim Crow, Margaret Hu
Algorithmic Jim Crow, Margaret Hu
Faculty Publications
This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …
The Miranda Custody Requirement And Juveniles, Paul Marcus
The Miranda Custody Requirement And Juveniles, Paul Marcus
Faculty Publications
Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.
Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …
Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman
Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman
Faculty Publications
Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Faculty Publications
Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …
Discrimination Platforms, Kevin S. Haeberle
Discrimination Platforms, Kevin S. Haeberle
Faculty Publications
Off-exchange trading today has become defined by its opacity. Indeed, the framing of this symposium on What Happens in the Dark: An Exploration of Dark Pools and High Frequency Trading and its goal of "exam[ing] a portion of the modern market that remains largely outside of the public eye"l is much in line with contemporary thinking in policymaking, academic, and industry circles alike. Yet, off-exchange trading through "dark" pools and the like is far more transparent than thought, and exchange trading the opposite. In fact, much trading through off-exchange platforms is even more transparent than that facilitated by exchanges.
Despite …
Evaluating Stock-Trading Practices And Their Regulation, Merritt B. Fox, Kevin S. Haeberle
Evaluating Stock-Trading Practices And Their Regulation, Merritt B. Fox, Kevin S. Haeberle
Faculty Publications
High-frequency trading, dark pools, and the practices associated with them have come under tremendous scrutiny lately, giving rise to much hot rhetoric. Missing from the discussion, however, is a principled, comprehensive standard for evaluating such practices and the law that governs them. This Article fills that gap by providing a general framework for making serious normative judgments about stock-trading behavior and its regulation. In particular, we argue that such practices and laws should be evaluated with an eye to the secondary trading market's impact on four main aspects of our economy: the use of existing productive capacity, the allocation of …
Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen
Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen
Faculty Publications
No abstract provided.
Crowdfunding Without The Crowd, Darian M. Ibrahim
Crowdfunding Without The Crowd, Darian M. Ibrahim
Faculty Publications
The final crowdfunding rules took three years for the Securites and Exchange Commission to pass, but crowdfunding—the offering of securities over the Internet—is now a reality. But now that crowdfunding is legal, will it be successful? Will crowdfunding be a regular means by which new companies raise money, or will it be relegated to a wasteland of the worst startups and foolish investors? This Article argues that crowdfunding has a greater chance of success if regulators abandon the idea that the practice does (and should) employ “crowd-based wisdom.” Instead, I argue that crowdfunding needs intermediation by experts that mirrors the …
Rights Dynamism, Timothy Zick
Justice Scalia And Sherman Act Textualism, Alan J. Meese
Justice Scalia And Sherman Act Textualism, Alan J. Meese
Faculty Publications
No abstract provided.
Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann
Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann
Faculty Publications
No abstract provided.
Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle
Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle
Faculty Publications
Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.
The normative foundations of fiduciary loyalty come into sharper focus when viewed …
Amnesty For Even The Worst Offenders, Jay Butler
Amnesty For Even The Worst Offenders, Jay Butler
Faculty Publications
In recent years, global policy makers have declared that heads of state must be held accountable through criminal prosecution for internationally wrongful acts. Scholars too have insisted that the international system’s embrace of accountability excludes or renders illegal the granting of amnesty. This Article argues that that position is too narrow and uses the ongoing conflict in Syria, as well as other contemporary examples, to examine some of consequences of the clamor for prosecution.
The Article rejects the binary juxtaposition of amnesty and accountability in current international legal scholarship, and instead seeks to broaden the terms of the conversation by …
The Return Of The Unprovided-For Case, Michael S. Green
The Return Of The Unprovided-For Case, Michael S. Green
Faculty Publications
No abstract provided.
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
Faculty Publications
Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …
Neuroscience Changes More Than You Can Think, Paul S. Davies, Peter A. Alces
Neuroscience Changes More Than You Can Think, Paul S. Davies, Peter A. Alces
Faculty Publications
In this Essay, we consider the contribution of a startling new book, Law & Neuroscience (L&N), by Owen Jones, Jeffrey Schall, and Francis Shen. It is a law school course book (a genre not often the focus of a scholarly review essay) that supports fundamental inquiry into the relationship between emerging neuroscientific insights and doctrinal conceptions in the law. We believe that the book shifts the paradigm and so may profoundly affect the course of normative evaluation of law. In this Essay, we trace and evaluate the “argument” of the book and suggest ways in which its contribution to the …
Justice Scalia And Abortion Speech, Timothy Zick
Justice Scalia And Abortion Speech, Timothy Zick
Faculty Publications
No abstract provided.
Property As A Management Institution, Lynda L. Butler
Property As A Management Institution, Lynda L. Butler
Faculty Publications
No abstract provided.
The Jurisdiction Canon, Aaron-Andrew P. Bruhl
The Jurisdiction Canon, Aaron-Andrew P. Bruhl
Faculty Publications
This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most …
Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer
Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer
Faculty Publications
In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would …
The Vanishing Common Law Judge, Neal Devins, David Klein
The Vanishing Common Law Judge, Neal Devins, David Klein
Faculty Publications
The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …
From Rome To The Military Justice Acts Of 2016 And Beyond: Continuing Civilianization Of The Military Criminal Legal System, Fredric I. Lederer
From Rome To The Military Justice Acts Of 2016 And Beyond: Continuing Civilianization Of The Military Criminal Legal System, Fredric I. Lederer
Faculty Publications
No abstract provided.
Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs
Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs
Faculty Publications
International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …