Law Commons^™

Environmental Law After Sebelius: Will The Court’S New Spending Power Limits Affect Environmental State-Federal Partnerships?, Erin Ryan

Scholarly Publications

This issue brief, invited by the American Constitution Society, analyzes the regulatory impacts of the new spending power doctrine in the Supreme Court’s 2012 health reform decision, National Federation of Independent Business v. Sebelius. In Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending power grounds, rounding out the “New Federalism” limits on federal power first initiated by the Rehnquist Court in the 1990s. The …

A Game-Theoretic Model Of International Climate Negotiations, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Response To Comments By Professors Baer, Candeub, Medwed, Painter, And Prentice, Manuel A. Utset

Scholarly Publications

No abstract provided.

The End Of Cash, The Income Tax, And The Next 100 Years, Jeffrey H. Kahn, Gregg D. Polsky

Scholarly Publications

No abstract provided.

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Natural Law As Part Of International Law: The Case Of The Armenian Genocide, Fernando R. Tesón

Scholarly Publications

In this Article I argue that some norms are part of international law even if they have never been created by treaty or custom. Because such norms have never been posited, they are natural law norms, and my thesis is that these natural law norms are as much part of international law as the posited norms. By this I mean that these norms should figure in any catalog of what international law prescribes or permits.

The Expectation Measure And Its Discontents, Shawn J. Bayern, Melvin A, Eisenberg

Scholarly Publications

No abstract provided.

Administrative Proxies For Judicial Review: Building Legitimacy From The Inside-Out, David L. Markell, Emily Hammond

Scholarly Publications

Judicial review is considered an indispensable legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act (“APA”), but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check …

Reforming Federal Tax Litigation: An Agenda, Steve R. Johnson

Scholarly Publications

King Vertigorn, it is said, wished to build a castle to defend Britain against invaders. Each day, his mason raised and set the stones. Each night, however, the earth would rumble, bringing the work crashing to the ground. Vexed, Vertigorn asked Merlin for an explanation. Merlin’s mystical divination revealed that, in a cavern far below the surface, there resided two foes, a red dragon and a white dragon. In their perpetual struggle for dominance, first one dragon then the other would gain temporary ascendancy. Their jostling unsettled the ground, rendering all construction temporary.

In federal tax procedure, the red dragon …

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler

Scholarly Publications

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by …

Community-Scale Renewable Energy, Hannah J. Wiseman, Sara C. Bronin

Scholarly Publications

No abstract provided.

Risk And Response In Fracturing Policy, Hannah J. Wiseman

Scholarly Publications

An oil and gas extraction technique called hydraulic fracturing (also called fracing, fracking, or hydrofracking) has swept the country and has raised the stakes of the energy policy debate. As operators drill thousands of new wells and inject water and chemicals down these wells in order to fracture underground shale and tight sandstone formations, concerned citizens’ groups and the media have pointed to flaming tap water and have worried about chemical contamination; at the same time, industry representatives and many state regulators have sworn that the practice has never contaminated groundwater. The outpouring of attention to injection—just one stage of …

Dynamic Energy Federalism, Hannah J. Wiseman, Hari M. Osofsky

Scholarly Publications

United States energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges—such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy—we need …

Urban Energy, Hannah J. Wiseman

Scholarly Publications

Growing domestic energy development—the extraction of fuels and construction of electricity generation facilities—poses new challenges to a country accustomed to importing much of its energy. As has always been the case, fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. As we tap these sources in ever more numerous locations, energy development bumps up against certain human population centers. The City of Fort …

Medicine And Law As Model Professions: The Heart Of The Matter (And How We Have Missed It), Rob Atkinson

Scholarly Publications

This article has two coordinate goals: to undergird the functionalist understanding of professionalism with classical normative theory and to advance the classical theory of civic virtue with the insights of modern social science. More specifically, this article seeks to connect classical theories about the care of the body and the soul with modern theories of market and government failure. The first step is to distinguish two kinds of professions, caring professions like medicine and public professions like law, by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, …

Liberty Of Palate, Samuel R. Wiseman

Scholarly Publications

As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, …

Constitution-Making Gone Wrong, David Landau

Scholarly Publications

With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that, ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and …

Fraudulent Corporate Signals: Conduct As Securities Fraud, Manuel A. Utset

Scholarly Publications

Paying a dividend, repurchasing shares, underpricing an initial public offering, pledging collateral, and borrowing using short-term, instead of long-term debt, are all forms of corporate communications. They are “corporate signals” that tell investors certain things about a company’s operations and current financial position, and about the managers’ confidence in its future performance. This Article provides the first comprehensive analysis of the relationship between corporate signals and securities fraud. The incentive to communicate using corporate signals has increased in recent years, a phenomenon that, I argue, is due to the grow-ing complexity of public corporations, and, importantly, to a number of …

Corporate Actors, Corporate Crimes And Time-Inconsistent Preference, Manuel A. Utset

Scholarly Publications

No abstract provided.

When Socrates Meets Confucius: Teaching Creative And Critical Thinking Across Cultures Through Multilevel Socratic Method, Erin Ryan

Scholarly Publications

No abstract provided.

When Socrates Meets Confucius: Teaching Creative And Critical Thinking Across Cultures Through Multilevel Socratic Method, Erin Ryan

Scholarly Publications

This article presents a case study of adapting the Socratic Method, popularized in American law schools, to teach critical thinking skills underemphasized in Chinese universities and group competency skills underemphasized at U.S. institutions. As we propose it here, Multilevel Socratic teaching integrates various levels of individual, small group, and full class critical inquiry, offering distinct pedagogical benefits in Eastern and Western cultural contexts where they separately fall short. After exploring foundational cultural differences underlying the two educational approaches, the article reviews the goals, methods, successes, and challenges encountered in the development of an adapted “Multilevel Socratic” method, concluding with recommendations …

Why Equal Protection Trumps Federalism In The Same-Sex Marriage Cases, Erin Ryan

Scholarly Publications

Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued in March. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether to just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter under review is an individual right. This …

The Great American Gun Violence Lottery, Erin Ryan

Scholarly Publications

Reflecting on the one-year anniversary of the Sandy Hook elementary school shooting, this very short essay compares the experience of gun violence in America to the dystopian game of chance in Shirley Jackson’s classic American short story, "The Lottery." With references to the role of Constitutional law, media consumption, and cultural change, it urges an available, common-sense middle ground on gun policy. The essay was first published by the American Constitution Society (Dec. 17, 2013) and later appeared in the Huffington Post (Dec. 20, 2013).