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Articles 5101 - 5130 of 25411
Full-Text Articles in Entire DC Network
An Unappreciated Constraint On The President's Pardon Power, Aaron J. Rappaport
An Unappreciated Constraint On The President's Pardon Power, Aaron J. Rappaport
Faculty Scholarship
Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President's pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The "specificity requirement" means that vague and broadly worded pardons are invalid. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper's argument rests on an originalist understanding of the constitutional text, …
Social Enterprise Lawyering, Alina S. Ball
To Litigate A Pandemic: Cases In The United States Against China And The Chinese Communist Party And Foreign Sovereign Immunities, Chimene Keitner
To Litigate A Pandemic: Cases In The United States Against China And The Chinese Communist Party And Foreign Sovereign Immunities, Chimene Keitner
Faculty Scholarship
No abstract provided.
Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah Jacobs Wiseman
Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah Jacobs Wiseman
Faculty Scholarship
Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which dominates the U.S. Supreme Court’s federalism jurisprudence. Recent academic theories of federalism emphasize overlap and interaction but still assume that federal and state actors will work within separate institutions. Each approach can be problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism: coequal federalism. Under coequal federalism, federal- and state-appointed officials collaborate within a single agency that makes decisions binding on the federal government …
An Aye Aye For An Aye Aye: Making Biodiversity Offsets Sustainable, David Takacs
An Aye Aye For An Aye Aye: Making Biodiversity Offsets Sustainable, David Takacs
Faculty Scholarship
No abstract provided.
The Covid-19 Vaccine Dilemma, Dorit R. Reiss
The Covid-19 Vaccine Dilemma, Dorit R. Reiss
Faculty Scholarship
COVID-19 continues to lead to large numbers of deaths, harms, and financial costs. Without an effective vaccine, those will continue. The pressure to find a vaccine is high; and that pressure places a risk on the safeguards in place to assure that vaccines are safe and effective will be ignored. The United States has an extensive apparatus to oversee vaccine safety before and after licensing, including multiple federal committees and several monitoring systems, and that apparatus gave us, in 2020, an extraordinarily safe vaccine supply. This Article explains the different pressures that push for and against using the same apparatus …
Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit R. Reiss
Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit R. Reiss
Faculty Scholarship
The United States' response to the COVID-19 pandemic was sub optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in the Centers for Disease Control and Prevention ( CDC) efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Directors, in an unusual step, published an op-ed calling out political intervention in the CDC. This article proposes two changes to strengthen the CDC's institutional independence: codifying the CDC's role in preventing diseases and reducing harms in a statute, and restructuring …
Digging The Rabbit Hole, Covid-19 Edition: Anti-Vaccine Themes And The Discourse Around Covid-19, Tara C. Smith, Dorit R. Reiss
Digging The Rabbit Hole, Covid-19 Edition: Anti-Vaccine Themes And The Discourse Around Covid-19, Tara C. Smith, Dorit R. Reiss
Faculty Scholarship
This article draws on a broadcast popular among the anti-vaccine community to map out six themes used by the broadcast to mislead viewers about COVID-19. The themes are the claim that “they” e government and pharma e are lying to you, claims that COVID-19 is an excuse to remove civil liberties, viewing everyone as an expert, claiming that science cannot save us, skewing the science, and a claim that “they” are out to harm the viewers. The article points out that similar themes are used to mislead followers with anti-vaccine information. It highlights the concern that these themes will not …
How Congress Can Help Raise Vaccine Rates, Dorit R. Reiss, Y. Tony Yang
How Congress Can Help Raise Vaccine Rates, Dorit R. Reiss, Y. Tony Yang
Faculty Scholarship
2019 saw an unusually high number of measles cases, and other preventable disease outbreaks, at least in part linked to vaccines refusal. States are considering legislative responses. This Essay examines what role the federal government can fill in increasing vaccines rates. The Essay suggests that the federal government has an important role to fill in funding research, coordination, and local efforts. It also suggests that a federal school vaccine mandate is likely not the solution: first, such mandates can run into plausible constitutional challenges, and second, there are policy arguments against it. The policy contentions include the unfairness of imposing …
When Public Participation Is Public Theatre: Misuse Of Public Comment Opportunities By Anti-Vaccine Activists, Dorit R. Reiss, Barbara S. Romzek
When Public Participation Is Public Theatre: Misuse Of Public Comment Opportunities By Anti-Vaccine Activists, Dorit R. Reiss, Barbara S. Romzek
Faculty Scholarship
No abstract provided.
Evidence Of Memory From Brain Data, Emily R. Murphy, Jesse Rissman
Evidence Of Memory From Brain Data, Emily R. Murphy, Jesse Rissman
Faculty Scholarship
Much courtroom evidence relies on assessing witness memory. Recent advances in brain imaging analysis techniques offer new information about the nature of autobiographical memory and introduce the potential for brain-based memory detection. In particular, the use of powerful machine- learning algorithms reveals the limits of technological capacities to detect true memories and contributes to existing psychological understanding that all memory is potentially flawed. This article first provides the conceptual foundation for brain-based memory detection as evidence. It then com- prehensively reviews the state of the art in brain-based memory detection research before establishing a framework for admissibility of brain-based memory …
Progressive Punitivism: Notes On The Use Of Punitive Social Control To Advance Social Justice Ends, Hadar Aviram
Progressive Punitivism: Notes On The Use Of Punitive Social Control To Advance Social Justice Ends, Hadar Aviram
Faculty Scholarship
No abstract provided.
Moral Character: Making Sense Of The Experiences Of Bar Applicants With Criminal Records, Hadar Aviram
Moral Character: Making Sense Of The Experiences Of Bar Applicants With Criminal Records, Hadar Aviram
Faculty Scholarship
No abstract provided.
Tax Macs: A Study Of M&A Termination Rights Triggered By Material Adverse Changes In Tax Law, Heather M. Field
Tax Macs: A Study Of M&A Termination Rights Triggered By Material Adverse Changes In Tax Law, Heather M. Field
Faculty Scholarship
A "Tax MAC" provision-one that triggers termination or other rights upon a material adverse change in tax law-can be crucial to a business deal if a change in tax law would change a party's interest in consummating the deal, particularly at the specified price and on the articulated terms. Tax MAC provisions may be particularly important when taxpayers make business decisions in a political climate like today's, when tax laws could change again, perhaps dramatically, if control of Congress and the White House changes. Yet little has been written about Tax MAC provisions. In response, I studied Tax MAC provisions …
Bankruptcy Hardball, Jared A. Ellias, Robert J. Stark
Bankruptcy Hardball, Jared A. Ellias, Robert J. Stark
Faculty Scholarship
On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered the way large firms approach financial distress, which is now characterized by a level of chaos and rent-seeking unchecked by norms that formerly restrained managerial opportunism. We refer to the new status quo as “bankruptcy hardball.” It is now routine for distressed firms to engage …
Estimating The Need For Additional Bankruptcy Judges In Light Of The Covid-19 Pandemic, Benjamin Iverson, Jared A. Ellias, Mark Roe
Estimating The Need For Additional Bankruptcy Judges In Light Of The Covid-19 Pandemic, Benjamin Iverson, Jared A. Ellias, Mark Roe
Faculty Scholarship
In this Article, we present the first effort to use an empirical approach to bolster the capacity of the bankruptcy system during a national crisis—here, the COVID-19 crisis. We provide two analyses, one using data from May 2020, very early on in the crisis, and another using data from September 2020, closer to the publication of this Article. Our analysis is based on an empirical observation: Historically, an increase in the unemployment rate has been a leading indicator of a rise in bankruptcy filings. If this historical trend continues to hold, the May 2020 unemployment rate of 13.3% would have …
An Updated Analysis Of Corporate Behavior And The Tax Cuts And Jobs Act, Nicholas H. Cohen, Manoj Viswanathan
An Updated Analysis Of Corporate Behavior And The Tax Cuts And Jobs Act, Nicholas H. Cohen, Manoj Viswanathan
Faculty Scholarship
No abstract provided.
Providing Adolescents With Independent And Confidential Access To Childhood Vaccines: A Proposal To Lower The Age Of Consent, Lois A. Weithorn, Dorit R. Reiss
Providing Adolescents With Independent And Confidential Access To Childhood Vaccines: A Proposal To Lower The Age Of Consent, Lois A. Weithorn, Dorit R. Reiss
Faculty Scholarship
The recent rise in rates of nonvaccination and vaccine-preventable diseases and the attendant risks to the public’s health require that lawmakers consider new policy solutions. This Article proposes one such solution. We recommend creation of a limited exception to parental decisionmaking authority by permitting certain older minors to provide legally binding consent for childhood vaccinations and protecting the confidentiality of minors who request vaccination. We analogize this proposed policy to other statutory exceptions that permit certain minors independent access to services relating to contraception, pregnancy, sexually transmitted diseases, mental health and substance abuse, and sexual assault. In this interdisciplinary paper, …
The Zooming Of Federal Civil Litigation, Scott Dodson, Lee Rosenthal, Christopher Dodson
The Zooming Of Federal Civil Litigation, Scott Dodson, Lee Rosenthal, Christopher Dodson
Faculty Scholarship
No abstract provided.
A Critique Of Jurisdictionality, Scott Dodson
A Critique Of Jurisdictionality, Scott Dodson
Faculty Scholarship
Over the last two decades, and culminating in a quartet of cases decided in the last two terms, the Supreme Court has erected a frame work for determining when a rule is "jurisdictional." This framework is important because questions of jurisdictionality routinely come up in federal litigation. Pressing the virtues of simplicity and clarity in jurisdictional rules to avoid the costs of mistaken assumptions of jurisdiction, the framework deploys clear-statement rules and formalistic, rule-based tests in an effort to be, in the Court's words, "easy to apply" and "readily administrable." In this article, I expose the weak nesses of the …
The Time Politics Of Home-Based Digital Piecework, Veena B. Dubal
The Time Politics Of Home-Based Digital Piecework, Veena B. Dubal
Faculty Scholarship
No abstract provided.
Reliance On Executive Constitutional Interpretation, Zachary S. Price
Reliance On Executive Constitutional Interpretation, Zachary S. Price
Faculty Scholarship
Federal executive officials routinely authorize government personnel to violate otherwise applicable laws based on contestable constitutional interpretations. This practice raises an important and unresolved question, one that arose in connection with the George W Bush Administration's interrogation practices and that could easily arise again: What legal effect, if any, should internal executive guidance on constitutional questions have in subsequent civil or criminal litigation against officials who relied on it? This Article systematically analyzes this question. Building on existing case law in related areas, it argues that any sound reliance defense in this area must balance three competing constitutional considerations: (1) …
Allocating Tax Transition Risk, Heather M. Field
Allocating Tax Transition Risk, Heather M. Field
Faculty Scholarship
No abstract provided.
Safe Money, John F. Crawford
Safe Money, John F. Crawford
Faculty Scholarship
This Article provides the first comprehensive survey and evaluation of proposed approaches to the central financial reform issue of our era: making all money held in account form "safe, " or non-defaultable, in the same way a dollar bill cannot default. Financial crises are at core a problem of def au/table money; preventing such crises requires making money safe. The goal is eminently achievable; indeed, a number of plausible proposals have been advanced. The project has two aspects: providing better safe money options and eliminating unsafe money. This Article analyzes safe money approaches and concludes that expanding "base" money-that is, …
Citizenship Denied: Implications Of The Naturalization Backlog For Noncitizens In Military, Ming Hsu Chen
Citizenship Denied: Implications Of The Naturalization Backlog For Noncitizens In Military, Ming Hsu Chen
Faculty Scholarship
The immigration system is in crisis. Long lines of asylum seekers at the border and immigrants in the interior spend years waiting for their day in immigration court. This is true in the agencies that process appli- cations for immigration benefits from legal immigrants as well. Since 2016, delays in naturalization have increased to historic proportions. The problem is even worse for military naturalizations, where delays are ac- companied by denials and overall declines in military naturalizations. It is the latest front in the battle on legal migration and citizenship. These impediments to citizenship demonstrate an extreme form of policies …
Making Litigating Citizenship More Fair, Ming Hsu Chen
Making Litigating Citizenship More Fair, Ming Hsu Chen
Faculty Scholarship
No abstract provided.
How Much Procedure Is Needed For Agencies To Change Novel Regulatory Policies?, Ming Hsu Chen
How Much Procedure Is Needed For Agencies To Change Novel Regulatory Policies?, Ming Hsu Chen
Faculty Scholarship
The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier, faster, and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment, and immigration law issues such as deferred …
The State Of Restorative Justice In American Criminal Law, Thalia Gonzalez
The State Of Restorative Justice In American Criminal Law, Thalia Gonzalez
Faculty Scholarship
Restorative justice has been part of the American criminal justice system for more than three decades. Yet, it has only recently expanded into mainstream reform conversations—particularly those addressing mass incarceration and securing justice—and has gained a new urgency following nationwide protests in response to racial violence and anti-Blackness. Such increased attention necessitates that reformists think carefully about the existing legal landscape of restorative justice to ensure that the construction and refinement of restorative justice laws do not yield undesirable state and local practices. Drawing on a dataset of 264 laws, including statutes, court rules, and regulations in 46 jurisdictions, this …
The Legalization Of Restorative Justice: A 50-State Empirical Analysis, Thalia Gonzalez
The Legalization Of Restorative Justice: A 50-State Empirical Analysis, Thalia Gonzalez
Faculty Scholarship
his Article addresses the increasing formal legal nature of restorative justice in the United States. Over the last three decades, a substantial body of research has demonstrated the ways in which restorative justice offers an alternative societal response to crime and harm. It has also examined how restorative justice empowers individuals and groups to address violence, respond to social, political and economic injustice, and engage in resistance to existing structural inequities. Yet a prominent gap in the field exists: a comprehensive theoretical and empirical examination of the codification of restorative justice in state law. Studies of this nature are essential …
Son Of Sam, Service-Connected Entitlements, And Disabled Veteran Prisoners, Jennifer D. Oliva
Son Of Sam, Service-Connected Entitlements, And Disabled Veteran Prisoners, Jennifer D. Oliva
Faculty Scholarship
No abstract provided.