Law Commons^™

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has, however, failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Publications

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

Scholarly Publications

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret …

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

Scholarly Publications

In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …

A Behavioral Justification For Escalating Punishment Schemes, Murat C. Mungan

Scholarly Publications

The standard two-period law enforcement model is considered in a setting where individuals usually, but not exclusively, commit crimes only after comparing expected costs and benefits. Where escalating punishment schemes are present, there is an inherent value in keeping a clean criminal record; a person with a record may unintentionally become a repeat offender if he fails to exert self-control, and be punished more severely. If the punishment for repeat offenders is sufficiently high, one may rationally forgo the opportunity of committing a profitable crime today to avoid being sanctioned as a repeat offender in the future. Therefore, partial deterrence …

Redesigning The Science Court, Justin Sevier

Scholarly Publications

Scientific evidence is a field in crisis. The validity and reliability of forensic techniques have been criticized by nearly every actor in the legal community—by attorneys, judges, the legal academy, and even the National Academy of Sciences—and high-profile cases of scientific evidence gone awry have garnered national attention. Policymakers have suggested many solutions to the scientific evidence crisis, including a controversial proposal to remove complex scientific cases from state and federal dockets and to hear those cases instead in a specialized “science court.”

Science court proposals face one substantial hurdle: they have become exceedingly unpopular. But …

How Do The Courts Create Popular Legitmacy?: The Role Of Establishing The Truth, Punishing Justly, And/Or Acting Through Just Procedures, Justin Sevier, Tom R. Tyler

Scholarly Publications

No abstract provided.

Mercenary Criminal Justice, Wayne A. Logan

Scholarly Publications

To some degree, money has always figured in criminal justice. Early on, private enforcers of the criminal law received payments for their work. Remuneration played a less explicit but still prominent role in the nineteenth and twentieth centuries as public actors carried out the work of criminal justice. Today, amid significant budget pressures brought on by the Great Recession and the costs of running the nation’s massive criminal justice apparatus, courts and other system actors rely heavily on a growing number of legal financial obligations (“LFOs”) as revenue sources. When this happens, courts and other system actors become mercenaries, in …

The Individual Mandate Tax Penalty, Jeffrey H. Kahn

Scholarly Publications

In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court upheld the constitutionality of that provision under Congress’s taxing power.

Despite the Supreme Court upholding the individual mandate, fundamental questions remain. This Article addresses the question of whether the use of a tax penalty to encourage taxpayers to do something that the government desires is …

Loving And Legitimacy: Irs Regulation Of Tax Return Preparation, Steve R. Johnson

Scholarly Publications

No abstract provided.

Reflections On Home Concrete, Steve R. Johnson

Scholarly Publications

Positive statutory law – principally the Internal Revenue Coe – is the most important source of tax rules. Despite its volume, however, the Code contains many gaps. Tax regulations promulgated by the Department of the Treasury are the principal vehicles for filling the most important gaps.

When consistent with the Code and issued pursuant to proper procedures, Treasure Regulations have the force of law. The validity of Treasury Regulations has been a major battleground in contemporary tax litigation. In the last five years alone, the issue has arisen in high profile cases such as Swallows, Mannella, Lantz, Mayo, Dominion Resources, …

Orginalism Talk: A Legal History, Mary Ziegler

Scholarly Publications

Progressives have long recognized the tremendous political appeal of originalism. For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public. By drawing on new historical research on anti-abortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk—the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs …

Remedying Regulatory Diseconomies Of Scale, Hannah J. Wiseman

Scholarly Publications

Rules in the modern administrative state tend to lag behind reality, and a key contributor to this stickiness – the volume of regulated activity – is largely ignored. When legislators or agency staff initially write rules to constrain the externalities of an activity, they assume that the activity will occur at a particular scale. Based on the known impacts at this scale, policymakers and regulators balance the harms of the regulated activity against the costs of regulation to industry, striking a compromise within the chosen rule or choosing to not regulate at all.

If the activity later expands from this …

Note, Institutionally Appropriate Approaches To Privacy: Striking A Balance Between Judicial And Administrative Enforcement Of Privacy Law, Lauren Henry Scholz

Scholarly Publications

No abstract provided.

Fraud In The Market, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

United States V. Caronia: How True Does "Truthful" Have To Be?, Elissa Philip Gentry

Scholarly Publications

No abstract provided.

A Dynamic Theory Of Judicial Role, David Landau

Scholarly Publications

Recent scholarship has focused heavily on the activism of courts in the fragile democracies of the “Global South.” Courts in countries like India, Colombia, and South Africa have issued landmark decisions in difficult political environments, in the process raising unanswered questions about the appropriate conception of judicial role in these climates. Much of the judicial and academic effort in these contexts is self-consciously oriented towards using courts to carry out basic improvements in the quality of political systems seen as badly deficient. In other words, the core task is to improve the quality of the democratic system over time. These …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

In National Federation of Independent Business v. 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 new Sebelius doctrine constrains the federal spending power in contexts involving changes to ongoing intergovernmental partnerships with very large federal grants. However, the decision gives little direction for …

Avoiding Adversarial Adjudication, Michael T. Morley

Scholarly Publications

There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Scholarly Publications

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …