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Articles 1 - 8 of 8
Full-Text Articles in Judges
Amendment Creep, Jonathan L. Marshfield
Amendment Creep, Jonathan L. Marshfield
Michigan Law Review
To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …
The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard
The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard
Articles
The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the …
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Michigan Law Review
Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …
The Sec's Shift To Administrative Proceedings: An Empirical Assessment, Adam C. Pritchard, Stephen Choi
The Sec's Shift To Administrative Proceedings: An Empirical Assessment, Adam C. Pritchard, Stephen Choi
Law & Economics Working Papers
Congress has repeatedly expanded the authority of the SEC to pursue violations of the securities laws in proceedings decided by its own administrative law judges, most recently in the Dodd Frank Act. We report the results from an empirical study of SEC enforcement actions against non-financial public companies to assess the impact of the Dodd Frank Act on the balance between SEC district court and administrative enforcement actions. We show a general decline in the number of court actions against public companies post Dodd Frank. At the same time, we show an increase in average civil penalties post-Dodd Frank for …
The Return Of Coverture, Allison Anna Tait
The Return Of Coverture, Allison Anna Tait
Michigan Law Review First Impressions
Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the …
The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld
The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld
Michigan Law Review First Impressions
Everyone has strong feelings about Justice Scalia. Lionized by the political right and demonized by the left, he has been among the most polarizing figures in American public life over the course of the last halfcentury. It is hardly surprising, then, that in the weeks since Justice Scalia’s death, the public discourse surrounding his legacy has exhibited something of a split personality. There have, of course, been plenty of appropriately respectful—even admiring—tributes from some of the Justice’s ideological adversaries; and here and there one of the Justice’s champions has acknowledged, with a hint of lament, the acerbic quality of some …
Lights Hidden Under Bushel's Case, Thomas A. Green
Lights Hidden Under Bushel's Case, Thomas A. Green
Book Chapters
Some forty years ago, Charlie Donahue created a course which he titled "Law, Morals and Society." Designed for undergraduates, and situated among the offerings of the University of Michigan's interdisciplinary Medieval and Renaissance Collegium, the course reflected the approach to doing history that, as this volume recognizes, Charlie has followed throughout his long and enormously influential career as scholar, teacher, lecturer, and inepressible master of well-timed interventions during conference-panel discussion periods. "LMS" was composed of four units. Charlie, who taught two of them, led off with the legal basis for the deposition of Richard II; I followed with the law …
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Articles
In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …