Law Commons^™

Binding The Executive (By Law Or By Politics), Aziz Huq

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No abstract provided.

The Photographer's Copyright - Photograph As Art, Photograph As Database, Justin Hughes

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No abstract provided.

Release As Remedy For Excessive Punishment, Alexander A. Reinert

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Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of The Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky

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In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion …

Rulemaking As Politics, Thirty Years On, Michael Herz

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No abstract provided.

After Class: Aggregate Litigation In The Wake Of At&T Mobility V Concepcion, Myriam E. Gilles, Gary Friedman

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Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court's April 2011 decision in AT&T Mobility v Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of Concepcion warrants close scrutiny. Our analysis suggests that following Concepcion, some plaintiffs will be able to successfully …

U.S. International Tax Reform: What Form Should It Take?, Jeffrey M. Kadet

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This article focuses solely on the big picture issue of whether international tax reform should take the form of a territorial system or an alternative full inclusion system. Of course, it is also necessary to compare these possible new systems with the current hybrid deferral system that has been in place for many years.

With little if any explanation of how it might be better for our nation and society as a whole, many persons and commentators whose companies or clients stand to benefit have called for a territorial system. Such persons have included CEOs, members of the professional tax …

Territorial W&M Discussion Draft: Change Required, Jeffrey M. Kadet

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The House Ways & Means Committee Discussion Draft proposes a territorial taxation system for the United States. This article published in Tax Notes on 23 January 2012 was taken from the author's comments on the Discussion Draft as submitted to the Committee in conjunction with a hearing held on 17 November 2011. See full comments at http://ssrn.com/abstract=1997482. The full comments include many additional issues not covered in this article.

The Discussion Draft importantly includes a dividend-received deduction of 95% instead of 100% as a mechanism to disallow expenses that are attributable to exempt foreign earnings. This mechanism causes the receipt …

Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley

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In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone.¹ In the opinion, Bradford concluded that “[s]o far . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or …

The Earned Income Tax Credit, Low-Income Workers, And The Legal Aid Community, Adam S. Chilton, Jonathan P. Schneller, Joshua L. Boehm

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The Earned Income Tax Credit ("EITC") is the largest US. welfare program, with twenty-four million low-income Americans receiving $60 billion of disbursals in 2009. Through the EITC, working Americans with little or no tax liability can receive up to nearly $6, 000 in refundable tax credits each year. Over the past two decades, policymakers have increasingly favored the EITC over direct-transfer welfare programs, citing its lower administrative expense (as recipients "self-certify" by filing taxes) and incentives for recipients to work. Despite its political appeal, the EITC suffers deep structural flaws. Largely because EITC claimants have little guidance in navigating the …

Lumpy Property, Lee Anne Fennell

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From Page To Practice: Corporations As Progressive Actors, Genevieve Lakier, Amalea Smirniotopoulos

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Was There Ever Such A Thing As Judicial Self-Restraint?, William M. Landes, Lee Epstein

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Richard Posner's version of judicial self-restraint implies that individual Justices who embrace restraint would tend to uphold the constitutionality of a law even if it went against their preferences or ideology. Judge Posner suggests that this form of restraint once existed but no longer does. Using a dataset of cases that considered the constitutionality offederal laws, we explore whether, in line with Judge Posner's hypothesis, the Court grew more activist (that is, more willing to strike laws) over the period between 1937 and 2009 and whether the ideological leanings of Justices, and not judicial self-restraint, better explain how they voted …

Brown, Governor Of California Et Al V. Plata Et Al., Mary Rogan

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The case of Brown, Governor of California et at v. Plata et al (hereinafter Plata) is one of the most eye-catching decisions of the Supreme Court of the United States in recent times. The result in itself – the upholding of an order of a Californian District Court to reduce the state’s prison population by up to 46,000 prisoners – would warrant attention. The reasoning of the Court and the differences between the majority and minority are also, however, most significant. The willingness of the Court to uphold the drastic measure of ordering a sizeable reduction in the Californian prison …

Cercla, State Law, And Federalism In The 21st Century, Alexandra B. Klass

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This essay discusses the continuing role of state statutory and common law remedies for remediating contaminated property at a time where federal liability under the Comprehensive Response, Compensation, and Liability Act (“CERCLA”) has, after thirty years, become an established part of the legal and business landscape. In recent years, a growing number of courts have struggled with the extent to which CERCLA does or should preempt or displace state statutory or common law governing claims for recovering costs associated with contaminated property. This essay begins with the premise that the language of CERCLA as well as general principles of federalism …

The Past, Present, And Future Of Critical Tax Theory: A Conversation, Karen B. Brown, Mary Louise Fellows, Bridget J. Crawford

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This essay endeavors to document and to preserve the story of the origins of the book Taxing America (NYU Press 1997) edited by Karen B. Brown and Mary Louise Fellows. The publication of that text was a key milestone in the development of critical tax theory as an intellectual discipline. By identifying and bringing together lawyers and scholars with an interest in the political and discriminatory aspects of tax law, Professors Brown and Fellows created one of the first working groups of critical tax theorists. In this essay, the book's two editors reflect on the book's intellectual antecedents and its …

The Institution Matching Canon, Aziz Huq

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This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the "institution matching" canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of …

When Was Judicial Self-Restraint?, Aziz Huq

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This Essay responds to Judge Posner's Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …

In Praise Of Realism (And Against 'Nonsense' Jurisprudence), Brian Leiter

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Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a "Chicago School of antitheoretical, no-nonsense jurisprudence." Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair then, to describe Dworkin's own theory as an instance of protheoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. …

Deference To The Executive In The United States After September 11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner

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A Heartfelt, Albeit Largely Statistical, Salute To Judge Richard D. Cudahy, Richard A. Posner

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This Essay elaborates on Judge Cudahy's distinction as a judge and discusses our relationship and the broader issue of the management of disagreement, particularly ideological disagreement, in an appellate court. The Essay departs from the usual form of tribute essays by organizing its discussion around statistics and focusing on more general issues of judicial performance. These statistics reveal that Judge Cudahy has been an unusually prolific judge, penning separate opinions at a higher rate than his colleagues both nationwide and on the Seventh Circuit. The numbers also reveal that Judge Cudahy 's dissent rate has declined markedly over time. After …

Spatial Diversity, Nicholas Stephanopoulos

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Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept - "spatial diversity" - that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most …

Theory And Practice In Antitrust Law: Judge Cudahy's Example, Diane P. Wood

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When Richard D. Cudahy graduated from the Yale Law School, antitrust law in the United States was at its zenith. The US. Department of Justice was bringing ambitious lawsuits to break up global cartels in all kinds of product markets, and the Supreme Court had condemned a number of restraints between competitors as illegal per se. Times have changed, as this Essay demonstrates. More recently, the Court overruled a ninety-six-year-old rule condemning resale price maintenance as per se illegal, ruling that such arrangements would henceforth be judged by the more nuanced rule of reason. This decision represents the denouement of …

Costly Intellectual Property, Jonathan Masur, David Fagundes

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No abstract provided.

Legitimacy, 'Constitutional Patriotism,' And The Common Law Constitution, David A. Strauss

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No abstract provided.

Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein

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Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss

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Are Even Unanimous Decisions In The United States Supreme Court Ideological?, Richard A. Posner, William M. Landes, Lee Epstein

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The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological-legalistic judicial institution.

Redistricting And The Territorial Community, Nicholas Stephanopoulos

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As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional- but it has also rejected every standard suggested to date for distinguishing lawful fr

Access And The Public Domain, Randal C. Picker

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No abstract provided.