Law Commons^™

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

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What best explains how “Everything Became War and the Military Became Everything?”— the provocative title of a recent book by Professor Rosa Brooks of Georgetown Law. In this Essay, I turn to the Department of Defense’s (DoD) unique agency design as the vehicle to address this question. Specifically, I first describe and analyze the role that the 1947 National Security Act and 1986 Goldwater-Nichols Act play in incentivizing organizational behavior within the DoD. These two Acts have broad implications for national security governance. Relatedly, I address the consequences of these two core national security laws, focusing on the …

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

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Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective …

Felony Murder, Paul H. Robinson, Tyler Scot Williams

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It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

The Ecology Of Transparency Reloaded, Seth F. Kreimer

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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

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Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

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American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group

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In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors …

High-Stakes Interpretation, Ryan D. Doerfler

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Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …

Chevron's Interstitial Steps, Cary Coglianese

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The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

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In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

The Tragedy Of Justice Scalia, Mitchell N. Berman

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Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …

The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach

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In Tyson Foods v. Bouaphakeo, a "donning and doffing" case brought under Iowa state law incorporating the Fair Labor Standards Act's overtime pay provisions, the petitioners asked the Supreme Court to reject the use of statistical evidence in Rule 23(b)(3) class certification. To its great credit, the Court refused. In its majority opinion, the Court cited both the Federal Rules of Evidence and federal common law interpreting the FLSA. In this paper, I take a moderately deep dive into the facts of the case, and the three opinions penned by Justice Kennedy (for the Court), Chief Justice Roberts (in …

The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.

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In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.

I start with corporate law doctrine, and find …

Who Cares How Congress Really Works?, Ryan David Doerfler

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Legislative intent is a fiction. Courts and scholars accept this by and large. As this Article shows, however, both are confused as to why, and, more importantly, as to what this entails.

This Article argues that the standard account of why legislative intent is a fiction—that Congress is a “they,” not an “it”—rests on an overly simplistic conception of shared agency. Drawing on contemporary work in philosophy of action, this Article contends that Congress as such has no intentions not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure …

Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp

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This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.

By the second half of …

A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.

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The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a satisfactory tribunal—adoption …

The Scrivener's Error, Ryan David Doerfler

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It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called “scrivener’s errors,” if and only if such mistakes are “absolutely clear.” The rationale is that, if a court were to recognize a less clear error, it “might be rewriting the statute rather than correcting a technical mistake.”

This Essay argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. In turn, because the current doctrine is designed to protect against one type of mistake (false positives) …

Lobbying And The Petition Clause, Maggie Blackhawk

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Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

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This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have …

The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch

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Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past forty years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”

Delaware law has largely taken …

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

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This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

Presidential Signing Statements: A New Perspective, Christopher S. Yoo

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This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial …

Lost In A Legal Thicket, Paul H. Robinson

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This op-ed piece argues that criminal law recodification is badly needed in the states and the federal system, but that prosecutors stand out as the group who appear to regularly oppose it.

Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch

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In its most recent Halliburton II decision, the Supreme Court rejected an effort to overrule its prior decision in Basic Inc. v. Levinson. The Court reasoned that adherence to Basic was warranted by principles of stare decisis that operate with “special force” in the context of statutory interpretation. This Article offers an alternative justification for adhering to Basic—the collaboration between the Court and Congress that has led to the development of the private class action for federal securities fraud. The Article characterizes this collaboration as a lawmaking partnership and argues that such a partnership offers distinctive lawmaking advantages. …

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

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There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority …

The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson

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This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

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The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …

The Model Penal Code's Conceptual Error On The Nature Of Proximate Cause, And How To Fix It, Paul H. Robinson

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The Model Penal Code reconceptualized proximate cause to see it as part of the offense culpability requirements rather than as, in the traditional view, a minimum requirement for the strength of the connection between the actor's conduct and the prohibited result. That conceptual error, rare in the well-thought-out Model Code, invites misinterpretation and misapplication of the proximate cause provision, and can produce improper liability results. The failure is all the more unfortunate because the Model Code drafters did have an important improvement to offer in dealing with the challenging issue of proximate cause. Their jettison of fixed detailed rules in …