Law Commons^™

Why Congress Did Not Think About The Constitution When Enacting The Affordable Care Act, Neal Devins

Faculty Publications

No abstract provided.

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …

How Do Start-Ups Obtain Their Legal Services?, Darian M. Ibrahim

Faculty Publications

This Essay is the first to examine, using responses to online surveys, the use of in-house versus outside counsel by rapid-growth start-up companies. It also explores, from the vantage point of the start-up’s entrepreneur, some reasons for that choice. The Essay tests several hypotheses derived from the economic and entrepreneurship literatures about the benefits of in-house versus outside counsel in the unique context of start-up firms.

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Faculty Publications

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected …

Section 2 Enforcement And The Great Recession: Why Less (Enforcement) Might Mean More (Gdp), Alan J. Meese

Faculty Publications

The Great Recession has provoked calls for more vigorous regulation in all sectors, including antitrust enforcement. After President Obama took office, the Antitrust Division of the Department of Justice abandoned the Bush Administration’s standard of liability under section 2 of the Sherman Act, which forbids unlawful monopolization, as insufficiently interventionist. Based on the premise that similarly lax antitrust enforcement caused and deepened the Great Depression, the Obama Administration outlined a more intrusive and consumer-focused approach to section 2 enforcement as part of a larger national strategy to combat the “extreme” economic crisis the nation was then facing.

This Essay draws …

Proportionality In Counterinsurgency: A Relational Theory, Evan J. Criddle

Faculty Publications

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use …

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

The Alaska Permanent Fund Dividend And Membership In The State's Political Community, Christopher L. Griffin Jr.

Faculty Publications

Despite decades of unmitigated administrative success, the Alaska Permanent Fund Dividend (PFD) is not immune from political and legal controversy. The symbolic and financial importance that Alaskans ascribe to their annual dividend checks has generated disputes between ordinary residents and executive agencies over eligibility. Litigation concerning three dominant status requirements - minimum residency, U.S. citizenship, and felony incarceration - reveal not only the extent to which Alaskans will pursue what they believe to be valid claims on their share of natural resource wealth, but also the limits of full political membership in the state. This Comment frames a sample of …

Stakeholder Participation In The Selection And Recruitment Of Police: Democracy In Action, Kami Chavis Simmons

Faculty Publications

Modem police culture tolerates or cultivates police misconduct and corruption in many ways. Failures to identify, monitor, and discipline "problem" officers; a belief that violence is a necessary part of law enforcement; and the code of silence; are organizational characteristics that need to be addressed in order to remedy organizational failures to hold law enforcement officers accountable. In order to address these cultural characteristics, police departments should carefully select police officers less likely to engage in these behaviors and adhere to these beliefs. Viewed through the lens of stakeholder participation, however, a fundamental shift should occur regarding how these new …

Standard Oil As Lochner's Trojan Horse, Alan J. Meese

Faculty Publications

No abstract provided.

The Legal Dilemma Of Guantanamo Detainees From Bush To Obama [Updated], Linda A. Malone

Faculty Publications

The stage for the Guantanamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantanamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian law requirements, …

The Curious Relationship Between "Self-Deportation" Policies And Naturalization Rates, Angela M. Banks

Faculty Publications

Governor Mitt Romney has stated that the country’s immigration problems can be solved through “self-deportation.” Arizona, Alabama, Georgia, South Carolina, and Virginia agree. For example, K–12 public schools in Alabama are required to ascertain the immigration status of all enrolling students. Police officers in Arizona, Alabama, Georgia, South Carolina, and Virginia check the immigration status of all individuals booked into jail. These “self-deportation” laws and policies, also known as immigration enforcement through attrition, are designed to discourage and deter unauthorized migration. Yet these policies are having a broader impact; they are creating a hostile context of reception for immigrants regardless …

Legitimizing International Criminal Justice: The Importance Of Process Control, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Recovering The Assembly Clause, Timothy Zick

Faculty Publications

No abstract provided.

Facebook, Twitter, And The Uncertain Future Of Present Sense Impressions, Jeffrey Bellin

Faculty Publications

The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media websites like Facebook and Twitter herald the arrival of a previously uncontemplated—and uniquely unreliable—breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would …

The New Exit In Venture Capital, Darian M. Ibrahim

Faculty Publications

No abstract provided.

Choice Of Law As General Common Law: A Reply To Professor Brilmayer, Michael S. Green

Faculty Publications

No abstract provided.

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Faculty Publications

We have entered an era in which potentially harmful expression can be distributed around the world in an instant. In the emerging global theater, speakers and audiences are connected through new and proliferating media; communicative space and time are compressed to an extraordinary degree; domestic expression can implicate national security and foreign affairs concerns; and a new model of global information dissemination is developing in which speakers are sometimes located beyond the jurisdiction of nations that may be harmed by their communications and disclosures.

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in …

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz

Faculty Publications

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on …

Human Security And Military Preparedness, Linda A. Malone

Faculty Publications

No abstract provided.

Parents' Self-Determination And Children's Custody: A New Analytical Framework For State Structuring Of Children's Family Life, James G. Dwyer

Faculty Publications

No abstract provided.