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Full-Text Articles in Law
Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max J. Minzner
Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max J. Minzner
Max Minzner
Judgments do not bind nonparties. This core due process constraint on issue preclusion means that courts can only adjudicate questions of fact and law with respect to those individuals appearing in court. However, the operation of stare decisis routinely extinguishes the rights of nonparties without notice or an opportunity to be heard. This Article examines the due process challenge to the operation of precedent. The traditional justifications for applying a due process analysis only to preclusion and not to precedent are inadequate. Instead of excepting stare decisis from the operation of procedural due process, we should see it as meeting …
The Criminal Rules Enabling Act, Max J. Minzner
The Criminal Rules Enabling Act, Max J. Minzner
Max Minzner
The Rules Enabling Act (the "REA") authorizes the Supreme Court to prescribe "general rules of practice and procedure" as long as those rules do not "abridge, enlarge or modify" any substantive right.' The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure ("Civil Rules"). In order to avoid REA concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court's approach in these cases. The literature frequently argues for more expansive interpretations of the REA that would …
Gagged But Not Bound: The Ineffectiveness Of The Rules Governing Judicial Campaign Speech, Max J. Minzner
Gagged But Not Bound: The Ineffectiveness Of The Rules Governing Judicial Campaign Speech, Max J. Minzner
Max Minzner
This article argues that while the text and the history of the gag rule would seem to indicate that implied commitments are prohibited, candidates have a wide variety of methods available to signal voters how they might decide cases if they reach the bench. Courts have failed to recognize the importance of limiting speech other than traditional policy promises due to a failure to adequately consider the most important motivating factor behind the gag rule: providing litigants impartial adjudication. Because courts have not made this the primary consideration in the gag rule cases, speech occurs in campaigns that would otherwise …
Entrenching Interests: State Supermajority Requirements To Raise Taxes, Max J. Minzner
Entrenching Interests: State Supermajority Requirements To Raise Taxes, Max J. Minzner
Max Minzner
At the opening of the 104th Congress, the new Republican majority imposed the first supermajority requirement "limited to particular cases" in the history of Congress. The unanswered question is whether the Rule is a good idea, particularly whether this Rule is well designed. The states have extensive experience with supermajority requirements for tax increases. This article attempts to answer the question of supermajority design. If alterations in the tax code are to be restricted, how should they be limited? To what type of bills should a supermajority requirement apply? At what level should the requirement be implemented? When and how …
Construction Work: The Canons Of Indian Law (Case Note), Max J. Minzner
Construction Work: The Canons Of Indian Law (Case Note), Max J. Minzner
Max Minzner
Congressional pronouncements in the area of Indian law have often been both sweeping and contradictory. To clear away some of the resulting confusion, the Supreme Court has adopted canons for construing these acts: Most importantly, ambiguous statutes and treaties are interpreted in favor of the tribes. In Alaska v. Native Village of Venetie, the Ninth Circuit applied this canon in interpreting the Alaska Native Claims Settlement Act (ANCSA), determining that Alaska's native villages qualify as "Indian country." This Case Note will show that the court's reliance on the canon of construction was misplaced. The most consistent interpretation of recent Supreme …
Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner
Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner
Max Minzner
This Article attempts to analyze why, in the current jurisdictional framework, tribes are treated differently from states but not differently from each other. This article analyzes the key assumptions underlying jurisdictional and choice of law analyses both inside and outside Indian Country. After a summary overview of current tribal court systems, this Article attempts to identify features of tribal courts that might indicate that they a) might disadvantage non-tribal litigants and b) are threatened by the incursion of concurrent state jurisdiction. The article points to one potential reason that the Court has assumed that all Indian tribes are alike, which …
Why Agencies Punish, Max J. Minzner
Why Agencies Punish, Max J. Minzner
Max Minzner
In addition to promulgating regulations, federal administrative agencies penalize entities that violate their rules. In 2010 alone, the National Highway Traffic Safety Administration imposed a statutory maximum $16.4 million penalty on Toyota, and the Securities and Exchange Commission recovered $535 million from Goldman Sachs, the largest civil penalty a financial services firm has ever paid. The academic literature proposes two major theories explaining why agencies might seek these monetary penalties. First, agencies might seek to deter misconduct by using civil penalties to raise the expected cost of regulatory violations above the cost of compliance. Alternatively, agencies might use civil penalties …
For-Profit Public Enforcement, Max J. Minzner, Margaret H. Lemos
For-Profit Public Enforcement, Max J. Minzner, Margaret H. Lemos
Max Minzner
This Article investigates an important yet undertheorized phenomenon: financial incentives in public enforcement. Each year, public enforcers assess billions of dollars in penalties and other financial sanctions for violations of state and federal law. Why? If the awards in question were the result of private lawsuits, the answer would be obvious. We expect that private enforcers - the victims of law violations and their fee-seeking attorneys - will attempt to maximize financial recoveries. Record recoveries come as no surprise in private class actions, for example. But dollar signs are harder to explain in the context of public enforcement. Unlike private …
Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max Minzner
Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max Minzner
Max Minzner
No abstract provided.
Entrenching Interests: State Supermajority Requirements To Raise Taxes, Max Minzner
Entrenching Interests: State Supermajority Requirements To Raise Taxes, Max Minzner
Max Minzner
No abstract provided.
Should Agencies Enforce?, Max J. Minzner
Should Agencies Enforce?, Max J. Minzner
Max Minzner
This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because it believes that agency subject matter expertise will generate appropriate enforcement choices. Similarly, the Supreme Court has strongly deferred to agency enforcement because it sees it as intimately intertwined with other agency regulatory decisions. Scholars have also generally taken for granted that specialist agencies will be enforcement experts because they …