Law Commons^™

Cost-Benefit Analysis As A Commitment Device, Matthew Wansley

Articles

Cost-benefit analysis does not age well. As scientific understanding of health, safety, and environmental risks accumulates over time — and as the technology to mitigate those risks becomes more affordable — the assumptions underlying a rule’s cost-benefit analysis obsolesce. Yet because of agency inaction, rulemaking ossification, and inattention to priority setting, outdated rules persist. In order to combat obsolescence, agencies should use cost-benefit analysis as a commitment device. When an agency analyzes a rule, it should precommit to subsequently adopting a more stringent rule than the one it initially promulgates, if and when a private actor credibly demonstrates that the …

Revisiting The Revolution: Reintegrating The Wealth Transmission System, Melanie B. Leslie, Stewart E. Sterk

Articles

Thirty years ago, John Langbein published "The Nonprobate Revolution and the Future of Succession." The article celebrated testators' newfound ability to avoid the expense and delay of the probate court system by holding assets in a variety of non-probate devices, such as retirement and bank accounts with beneficiary designations and revocable trusts. Langbein high-lighted problems the revolution might generate and predicted how they might be resolved. Since then, significant problems have indeed developed. First, wills law doctrines designed to effectuate intent of testators have not been universally extended to non-probate transfers. Second, the fragmentation of the wealth transmission process has …

Postdefault Interest Rates In Bankruptcy, David G. Carlson

Articles

This Article shows that as Bankruptcy Code section 506(b) is currently written, postdefault interest rates are prohibited when the default is an “ipso facto event” — a filing for bankruptcy or insolvency as the event of a default. Yet some courts have insisted on postdefault interest in situations reinstating a loan agreement and have been ignoring restrictions on pendency interest to permit oversecured creditors from obtaining penalty rates of interest. This Article argues that those holdings violate section 506(b) and Supreme Court precedent. It begins with an analysis of ipso facto defaults, showing that the Bankruptcy Code prohibits ipso facto …

Virtuous Capture, Matthew Wansley

Articles

A regulatory agency is captured if, instead of the public interest, it pursues the interests of powerful firms it is intended to regulate. Scholars disagree about which agencies are captured, how they become captured, and what reforms, if any, can prevent capture. There is consensus on one issue: capture is a vice.In this Article, I argue that capture can be a virtue. When powerful interest groups thwart justified regulation, the optimal strategy for pursuing that regulation may be to indirectly empower interest groups that stand to profit from it in the long-run. Legislation creating new interest groups — or altering …

Facing Terror Together: Public Agents And Civic Worth, Ekow N. Yankah

Articles

No abstract provided.

Professor Alan R. Bromberg And The Scholarly Role Of The Treatise, Wendy Gerwick Couture

Articles

No abstract provided.

Class-Action Tolling, Federal Common Law, And Securities Statutes Of Repose: A Recommendation, Wendy Gerwick Couture

Articles

This Essay focuses on a narrow, but potentially outcome determinative, question: Does the filing of a securities class action toll the three-year outer time limit applicable to claims under sections 11 and 12(a)(2) of the Securities Act and the five-year outer time limit applicable to claims under section 10(b) of the Securities Exchange Act, such that potential class members-after a decision on class certification-can assert an individual federal action, even if those outer time limits would have elapsed absent tolling? There is currently a circuit split on this issue, with the Tenth Circuit answering "yes" and the Second Circuit answering …

Making "Conservation" Work For The 21st Century: Enabling Resilient Place, Jerrold A. Long

Articles

During the New Deal, as part of a larger effort implementing Progressive Era "conservation" regimes, the federal government authorized the structurally-invasive Flood Control Act of 1936. At the same time, the Standard State Soil Conservation Districts Law promoted the creation of local, place-based efforts to protect or restore locally-valued resources. "Conservation" thus came to signify both the invasive, structural, engineering approach of mid-20th Century flood control, and the local, more responsive and flexible nature of soil conservation districts. But our understandings of our place in the natural world have changed subtly but significantly over the past century. Any legitimate natural …

The Status Of Nonstatus, Geoffrey Heeren

Articles

Millions of unauthorized immigrants in the United States have no legal immigration status and live in constant fear of deportation. There are millions more who do have some sort of status, like lawful permanent residency, asylum, or a nonimmigrant visa. In between is the netherworld of nonstatus. Here live noncitizens who possess government documentation but few rights. They have no pathway to lawful permanent residence or citizenship and cannot receive most public benefits. If nonstatus is denied or revoked by a prosecutor or bureaucrat, there is no right to a hearing or an appeal. If the Executive Branch discriminates in …

Civic Education, The Rule Of Law, And The Judiciary: A Republic, If You Can Keep It, Donald L. Burnett Jr.

Articles

No abstract provided.

Materiality And A Theory Of Legal Circularity, Wendy Gerwick Couture

Articles

This Article argues that the materiality doctrine, which lies at the heart of securities fraud, has the potential to operate as a self-fulfilling prophecy. This Article labels this phenomenon "legal circularity." In order to place the potential legal circularity of materiality in context among the various other legal doctrines that share this potential, this Article proposes a two part Theory of Legal Circularity. First, this Article proposes the following Legal Circularity Test to identify potentially circular doctrines: A legal doctrine is potentially circular if: (1) the legal doctrine incorporates the behavior or attitude of a population or person, either hypothetical …

Idaho Administrative Law: A Primer For Students And Practitioners, Richard Henry Seamon

Articles

No abstract provided.

Community Land Trusts: Why Now Is The Time To Integrate This Housing Activists' Tool Into Local Government Affordable Housing Policies, Stephen R. Miller

Articles

No abstract provided.

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

Articles

In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper's interest in publishing the photograph …

Transcending Formalism And Functionalism In Separation-Of-Powers Analysis: Reframing The Appointments Power After Noel Canning, Ronald J. Krotoszynski Jr.

Articles

Contemporary separation-of-powers theory and practice generally rely on two competing theories-formalism and functionalism-to frame and decide contested questions about the scope of each branch's constitutional power and authority. In some areas, this dichotomy works reasonably well and possesses significant explanatory force. But the dichotomy's utility is considerably less obvious in the context of the federal appointments process.

The Supreme Court's recent decision in National Labor Relations Board v. Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separation-of-powers questions that equally implicate text, structure, and historical practice. Moreover, Justice Breyer's Noel Canning opinion deftly transcends the formalism-functionalism …

Rethinking Standing In Patent Challenges, Michael J. Burstein

Articles

No abstract provided.

Pay For Play: The Compensated Leisure Flaw Of Contract Damages, Mitchell L. Engler

Articles

Contract damages aim to leave the injured party in as good a position as if the contract had been fulfilled. But discharged laborers often obtain a much better result due to the lack of a reduction for their excused work effort on breach. After first exposing the problematic ramifications of this unjustified deviation, this Article then provides two workable corrections.

Why Instrumentalism Matters, Kyron Huigens

Articles

No abstract provided.

Redressing Hiv/Aids Discrimination In Nigeria: The Implications Of The Anti-Discrimination Act Of 2015, Ngozi Okidegbe

Articles

No abstract provided.

The Current State Of The Consumer Class Action, Myriam E. Gilles, Samuel Issacharoff, Andrew J. Pincus, Theodore D. Rave

Articles

No abstract provided.

What Internationals Know: Improving The Effectiveness Of Post-Conflict Justice Initiatives, Elena Baylis

Articles

The field of post-conflict or transitional justice has developed rapidly over the last thirty years. The United States, the United Nations, and many other international organizations, governments, and institutions have contributed to hundreds of international criminal trials and rule of law programs. International staff, known as “internationals,” travel among post-conflict states and international criminal tribunals to carry out these initiatives. In addition to being a field of work, post-conflict justice also constitutes an emergent body of legal knowledge, composed of substantive standards, rules of procedure, best practices, and other elements. Just as the programs and institutions of post-conflict justice have …

On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake

Articles

This article, published in the B.U. Law Review Symposium issue, “The Civil Rights Act of 1964 at 50: Past, Present and Future,” reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it …

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman

Articles

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with. This article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, …

Adversarial Science, Sanne H. Knudsen

Articles

Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.

In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like …

Reforming Copyright Interpretation, Zahr K. Said

Articles

This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the other …

Obergefell'S Squandered Potential, Peter Nicolas

Articles

No abstract provided.

In The Name Of Patent Stewardship: The Federal Circuit’S Overreach In Commercial Law, Xuan-Thao Nguyen

Articles

While the U.S. Court of Appeals for the Federal Circuit has admirably commandeered its stewardship of patent law-Congress bestowed the Federal Circuit with exclusive jurisdiction over patent appeals since 1982-the court has unabashedly extended its reach, unwelcomed, into commercial law. Camouflaged in the name of patent stewardship, the Federal Circuit's foray into commercial law has yielded unexpected and unjustifiable results. This Article argues that, paradoxically, to maintain its stewardship of patent law, the Federal Circuit should not invoke patent law to rationalize its decisions concerning commercial law, which have dramatically altered established commercial law. This encroachment into commercial law, which …

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Investment Arbitration In East Asia And The Pacific A Statistical Analysis Of Bilateral Investment Treaties, Other International Investment Agreements And Investment Arbitrations In The Region, Sandra Friedrich, Claudia T. Salomon

Articles

Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region's continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IlAs. On the heels of this development, the …