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Full-Text Articles in Law

A Holistic View Of Agency Enforcement, David L. Markell, Robert L. Glicksman Dec 2014

A Holistic View Of Agency Enforcement, David L. Markell, Robert L. Glicksman

Scholarly Publications

The law review literature has long recognized that effective enforcement is an essential component of effective regulation. Yet much of the literature focuses on one aspect of the enforcement challenge or another. For example, the underlying theory about optimal levels of enforcement has received considerable attention, as have topics such as the relative merits of using deterrence-based versus cooperation-based approaches and the use of citizen suits. The purpose of this Article is to consider agencies’ enforcement and compliance promotion function holistically.

This Article proposes a three-layered conceptual framework for considering options for structuring the administrative agency enforcement and compliance promotion ...


A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan Nov 2014

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty and ...


Emotional Fact-Finding, Mark Spottswood Oct 2014

Emotional Fact-Finding, Mark Spottswood

Scholarly Publications

No abstract provided.


Introduction: Environmental Law Without Congress, Shi-Ling Hsu Oct 2014

Introduction: Environmental Law Without Congress, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


The Accidental Postmodernists: A New Era Of Skepticism In Environmental Law, Shi-Ling Hsu Sep 2014

The Accidental Postmodernists: A New Era Of Skepticism In Environmental Law, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Graphic Labels, Dire Warnings And The Facile Assumption Of Factual Content In Compelled Commercial Speech, Nat Stern Jul 2014

Graphic Labels, Dire Warnings And The Facile Assumption Of Factual Content In Compelled Commercial Speech, Nat Stern

Scholarly Publications

No abstract provided.


The Price Of Privacy, 1973 To The Present, Mary Ziegler Jul 2014

The Price Of Privacy, 1973 To The Present, Mary Ziegler

Scholarly Publications

The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade. Roe is seen to have promoted a single-issue agenda based on the importance of privacy and choice. Because Roe so quickly came under attack, its defense became a priority, and activists speaking out in favor of the opinion felt encouraged to defend it on its own terms. If the abortion issue were a matter of ordinary politics rather than constitutional law, the argument goes, activists would be free to develop more compelling claims for reproductive rights and to pursue a broader reproductive-health program ...


Of Bitcoins, Independently Wealthy Software, And The Zero-Member Llc, Shawn J. Bayern Jul 2014

Of Bitcoins, Independently Wealthy Software, And The Zero-Member Llc, Shawn J. Bayern

Scholarly Publications

An innovative software technology known as Bitcoin makes it easier for software to operate with some degree of financial autonomy. In a meaningful sense, it is now possible for software to conduct business on its own account, without using the traditional financial system as an intermediary and without a financial existence tied to an existing natural or legal person. This Essay explores this possibility and suggests that legally autonomous entities, such as a limited liability company (LLC) with no members, are a useful legal structure for factually autonomous systems.


Climate Change Regulation And Prediction Markets, Shi-Ling Hsu Jul 2014

Climate Change Regulation And Prediction Markets, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal Jun 2014

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts ...


Reasoned Explanation And Irs Adjudication, Steve R. Johnson May 2014

Reasoned Explanation And Irs Adjudication, Steve R. Johnson

Scholarly Publications

Under the Administrative Procedure Act (APA), an administrative action can be invalidated as arbitrary and capricious if the agency fails to sufficiently explain the reasons for its choices. This principle applies to agency adjudication as well as to agency rulemaking. How does this principle apply to IRS adjudications? Examining five paradigms of IRS decisionmaking, this Article first establishes that the IRS does engage in APA–style adjudication. The Article then examines tax-specific explanation requirements and asks whether a more robust explanation duty patterned on the APA should be imposed on IRS determinations. Based on a variety of legal and prudential ...


Expressive Enforcement, Avlana Eisenberg May 2014

Expressive Enforcement, Avlana Eisenberg

Scholarly Publications

Laws send messages, some of which may be heard at the moment of enactment. But much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions in the context of domestic criminal law have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws—the paradigmatic example of expressive legislation—as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions ...


Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler May 2014

Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler

Scholarly Publications

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.

This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid un-wanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

This article uses the legal history of struggle over spousal consent ...


The Truth-Justice Tradeoff: Perceptions Of Decisional Accuracy And Procedural Justice In Adversarial And Inquisitorial Legal Systems, Justin Sevier May 2014

The Truth-Justice Tradeoff: Perceptions Of Decisional Accuracy And Procedural Justice In Adversarial And Inquisitorial Legal Systems, Justin Sevier

Scholarly Publications

Two studies provide empirical support for Thibaut and Walker’s (1978) theory that inquisitorial and adversarial dispute resolution systems are associated with different psychological values: the pursuit of truth and the pursuit of justice. Study 1 suggests that, in civil and criminal disputes, the adversarial system is perceived to produce less truth than it does justice, and less truth than does the inquisitorial system. Conversely, the inquisitorial system is perceived to produce less justice than it does truth, and less justice than does the adversarial system. Study 2 examines how legal outcomes moderate litigants’ perceptions of the truth and justice ...


A Cost-Benefit Analysis Of Sugary Drink Regulation In New York City, Shi-Ling Hsu Apr 2014

A Cost-Benefit Analysis Of Sugary Drink Regulation In New York City, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


The Perils Of Productivity, Mark Spottswood Apr 2014

The Perils Of Productivity, Mark Spottswood

Scholarly Publications

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is ...


Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler Apr 2014

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Scholarly Publications

On its fortieth anniversary, Roe v. Wade serves as the most prominent example of the damage judicial review can do to the larger society. Scholars from across the ideological spectrum have related how Roe helped to entrench the ideological positions held by those on either side of the abortion issue, precluding any form of productive compromise. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences, serving as both a justification for overruling Roe and as a case study of the benefits of varying interpretive methods.

This Article reevaluates the beyond backlash claim through a careful ...


The Institutional Progress Clause, Jake Linford Apr 2014

The Institutional Progress Clause, Jake Linford

Scholarly Publications

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some copyright owners and special defenses to some users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a careful consideration of what ...


Capital Rigidities, Latent Externalities, Shi-Ling Hsu Apr 2014

Capital Rigidities, Latent Externalities, Shi-Ling Hsu

Scholarly Publications

Capital, one of two fundamental inputs to production, is critical to economic growth. As such, legal rules and institutions generally seek to create more of it, and they also seek to protect existing capital from policy changes. However, capital is often durable, and during its natural life, information may emerge pointing to negative externalities resulting from operation of that capital. Legal rules and institutions, in seeking to stimulate and sustain economic growth by promoting and protecting capital, thus tend to induce the creation of excess capital. This abundance of capital creates excess resistance to new regulation or policy reform, as ...


Epa Enforcement: A Heightened Emphasis On Mitigation Relief, David Markell Mar 2014

Epa Enforcement: A Heightened Emphasis On Mitigation Relief, David Markell

Scholarly Publications

No abstract provided.


Pretrial Detention And The Right To Be Monitored, Samuel R. Wiseman Mar 2014

Pretrial Detention And The Right To Be Monitored, Samuel R. Wiseman

Scholarly Publications

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, electronic monitoring has the potential to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants ...


Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick Jan 2014

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 ...


Reflections On Home Concrete, Steve R. Johnson Jan 2014

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, and Loving ...


The Individual Mandate Tax Penalty, Jeffrey H. Kahn Jan 2014

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 ...


Loving And Legitimacy: Irs Regulation Of Tax Return Preparation, Steve R. Johnson Jan 2014

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

Scholarly Publications

No abstract provided.


Remedying Regulatory Diseconomies Of Scale, Hannah J. Wiseman Jan 2014

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 baseline, the ...


Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck Jan 2014

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.


The Case For Mandatory Training On Screening For Domestic Violence In The Wake Of The Affordable Care Act, Nat Stern, Karen Oehme Jan 2014

The Case For Mandatory Training On Screening For Domestic Violence In The Wake Of The Affordable Care Act, Nat Stern, Karen Oehme

Scholarly Publications

No abstract provided.


Note, Institutionally Appropriate Approaches To Privacy: Striking A Balance Between Judicial And Administrative Enforcement Of Privacy Law, Lauren Henry Scholz Jan 2014

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.


A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld Jan 2014

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 ...