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Full-Text Articles in Law
Publicizing Corporate Secrets, Christopher J. Morten
Publicizing Corporate Secrets, Christopher J. Morten
Faculty Scholarship
Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines …
Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Faculty Scholarship
We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.
Choice Of Law In Takings Cases, Thomas W. Merrill
Choice Of Law In Takings Cases, Thomas W. Merrill
Faculty Scholarship
This Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. It argues that there are three choices: federal constitutional law, state law, or a federal-patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The article illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a …
The Supreme Court's Regulatory Takings Doctrine And The Perils Of Common Law Constitutionalism, Thomas W. Merrill
The Supreme Court's Regulatory Takings Doctrine And The Perils Of Common Law Constitutionalism, Thomas W. Merrill
Faculty Scholarship
My objective in this lecture is to take seriously the observation that constitutional law in the United States, as expounded by its Supreme Court, bears far more resemblance to common law than to textual interpretation. We live under a written Constitution. But the main body of that Constitution, including the first ten amendments we call the Bill of Rights, is very old, having been adopted nearly 230 years ago. As time marches on, judicial interpretations of this venerable text have piled up. Constitutional disputes today are almost always resolved by the courts applying this growing body of precedent. Constitutional law …
Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill
Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill
Faculty Scholarship
Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Faculty Scholarship
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Faculty Scholarship
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …
Reply To Professor Brewbaker, Thomas W. Merrill
Reply To Professor Brewbaker, Thomas W. Merrill
Faculty Scholarship
Professor Brewbaker's thoughtful article on physician price controls raises many issues, large and small. Some – such as the relative merits of the regulatory takings standard and the fair return standard – have been dealt with in my principal article and I will not revisit them here. I will instead address four arguments advanced by Professor Brewbaker that are not anticipated in my article: (1) that the Constitution should not apply to physician price controls because physicians can fend for themselves in the political process; (2) that applying the Takings Clause to physician price controls would be tantamount to reviving …
Constitutional Limits On Physician Price Control, Thomas W. Merrill
Constitutional Limits On Physician Price Control, Thomas W. Merrill
Faculty Scholarship
Proposals for the reform of the nation's health care system have highlighted the issue of rising health care costs. Concern about rising costs, in tum, has led to talk of imposing price controls on health care providers. Economists and other experts have condemned price controls as a way to control rising health care costs. They argue that price controls do nothing to alleviate the underlying causes of inflation; instead, price controls merely postpone or redirect price increases, and in the process introduce allocational distortions and inefficiencies. This Article will not elaborate on the policy arguments for or against medical price …