Law Commons^™

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

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This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

It’S Time For Postal Banking, Mehrsa Baradaran

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This essay makes the case that the USPS is in a unique position to provide much-needed financial services for the large population of unbanked or underbanked Americans. First, the post office can offer credit at lower rates than fringe lenders by taking advantage of economies of scale as well as their position in the federal bureaucracy. Second, they already have branches in many low-income neighborhoods that have been long deserted by commercial banks. And, third, people at every level of society, including the unbanked, have a level of familiarity and comfort with the post office that they do not have …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

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The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …

Ignorance, Harm, And The Regulation Of Performance-Enhancing Substances, Lisa Milot

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There is a disconnect between how legal and sporting authorities, on the one hand, and many elite athletes, on the other, view the use of performance-enhancing substances. While official and popular narratives portray the use of these substances as isolated examples of deviant behavior, to the elite athletes who daily push their bodies beyond societally normal limits of pain and risk, enhancement is oftentimes an accepted part of the job. As a result, efforts to regulate and detect athletes’ use of these substances have consistently captured only a small fraction of the use that exists.

This Article describes the ways …

The Stealth Press Clause, Sonja R. West

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In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

Why Wynne Should Win, Dan T. Coenen

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In Maryland State Comptroller of the Treasury v. Wynne, the Court could reshape core features of dormant Commerce Clause law. Maryland’s theory in the case is that it can lay an income tax on every penny of an individual resident’s income even if some of that income is earned entirely outside the state and therefore, in keeping with standard state practice, already taxed elsewhere. On its face, this approach exposes interstate income earners to overlapping income taxation. Maryland’s scheme thus violates a cardinal principle of dormant Commerce Clause law, “forbidding” state laws that expose interstate commerce “to the risk …

Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge

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Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …

Encouraging Victims: Responding To A Recent Study Of Battered Women Who Commit Crimes, Andrea L. Dennis, Carol E. Jordan

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The article discusses evolution of social services and legal remedies for domestic violence. It reviews research done on domestic violence victims to find out factors that prevent victims from reporting the incident. It offers tips on how to motivate victims to report the incidence of domestic violence. It offers a new proposal targeting women who both suffer violence and have a criminal history.

The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

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U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and …

First Amendment Neighbors, Sonja R. West

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An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …

In-Sourcing Corporate Responsibility For Enforcement Of The Foreign Corrupt Practices Act, Larry D. Thompson

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In this article I first review our nation's long-standing and active aversion to corporate corruption overseas, as principally embodied in the Foreign Corrupt Practices Act. I then explain how achievement of the FCPA's goals is undermined by the uncertainty in current federal enforcement policies and the consequent ambivalence toward self disclosure exhibited by multinational corporations. Finally, I argue that the only realistic way to make up the shortcomings in FCPA enforcement that flow from the Justice Department's limited resources is to motivate corporations themselves to police corruption in their foreign subsidiaries by giving them a concrete incentive in the form …

Tax Consequences Of Distributing Equity Compensation Rights In Divorce, Gregg Polsky, Jeffrey D. Fisher, Zachry R. Potter

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This article discusses the federal tax issues arising from the equitable distribution of compensatory stock options and restricted stock in divorce. While the tax consequences of distributing vested options and shares are clear, the treatment of unvested rights is muddled. This article explains the state of the law and provides practical advice to divorce lawyers who confront these issues.

Detecting Knowledge Of Incidentally Acquired, Real-World Memories Using A P300-Based Concealed-Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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Autobiographical memory for events experienced during normal daily life has been studied at the group level, but no studies have yet examined the ability to detect recognition of incidentally acquired memories among individual subjects. We present the first such study here, which employed a concealed-information test in which subjects were shown words associated with activities they had experienced the previous day. Subjects wore a video-recording device for 4 hr on Day 1 and then returned to the laboratory on Day 2, where they were shown words relating to events recorded with the camera (probe items) and words of the same …

Paul D. Moreno's The American State From The Civil War To The New Deal: The Twilight Of Constitutionalism And The Triumph Of Progressivism, Laura Phillips Sawyer

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Paul Moreno, the Grewcock Chair in Constitutional History at Hillsdale College, sets out to explain how the natural rights constitutionalism of the Founders was replaced by an ‘entitlement-based welfare state of modern liberalism’ by the late 1930s. The book is an ‘analytic narrative’, drawing on both constitutional theory and current ‘public choice’ law and economics, and contributes to recent scholarship by libertarian-minded legal scholars, such as David Bernstein and David Mayer, among others.

The Problem Of Abusive Related-Partner Allocations, Gregg D. Polsky, Emily Cauble

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This Article highlights a flaw in the existing rules regarding partnership tax allocations that has not yet received sufficient attention by existing literature. Namely, the partnership tax allocation rules are implicitly premised on the assumption that partners are unrelated and, thus, transact with each other at arm’s length. As a result, related partners can and do devise tax allocation schemes that exploit the gap in the current partnership tax allocation rules to achieve unwarranted tax savings.

This Article proposes to end this abuse by disallowing special allocations among related partners. Under the proposal, allocations among related partners would be required …