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Articles 31 - 60 of 3180
Full-Text Articles in Law
The Active Vices, Benjamin Johnson
The Active Vices, Benjamin Johnson
Journal Articles
Alexander Bickel's pathbreaking idea of the "passive virtues" attempted to explain and justify the Supreme Court's power to control its docket. He proposed that the Court's extensive discretion allows it to remain passive and avoid politically perilous cases, preserving its institutional legitimacy until such time as durable principles are at stake. This theory remains one of the most influential ideas in legal scholarship, but is dangerously incomplete. Discretion is a double-edged sword, empowering the Court not only to avoid politics, but also to engage in it. In other words, a policy-motivated Court can use its agenda-setting power to target highly …
Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore
Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore
Journal Articles
This Statutory and Regulatory Supplement is intended for use with its companion casebook, Food and Drug Regulation: A Statutory Approach (2021). This is not a traditional statutory supplement. Instead, it contains selected, aggressively edited provisions of the Federal Food, Drug and Cosmetic Act (FFDCA), related statutes, and the Code of Federal Regulations. The Supplement includes all provisions assigned as reading in the casebook, as well as a few additional provisions that some professors may wish to cover. The excerpts are designed to be teachable rather than
Reasonably Accommodating Employment Discrimination Law, William Corbett
Reasonably Accommodating Employment Discrimination Law, William Corbett
Journal Articles
The law of accommodations within employment discrimination law evolved significantly in 2023. The Pregnant Workers Fairness Act (PWFA) was enacted by Congress and signed by President Biden in 2022, and it became effective on June 27, 2023. The Act creates a statutory duty for covered employers to make reasonable accommodations for pregnancy, childbirth, and related medical conditions. Two days after the effective date of the PWFA, the Supreme Court rendered a decision in Groff v. DeJoy in which the Court clarified the meaning of the “undue hardship” limitation on the duty of employers under Title VII to reasonably accommodate religious …
Sales Free And Clear Of An Intellectual Property Licensee's Interests In Bankruptcy -- Looking To In Re Tempnology For Guidance, Summer Chandler
Sales Free And Clear Of An Intellectual Property Licensee's Interests In Bankruptcy -- Looking To In Re Tempnology For Guidance, Summer Chandler
Journal Articles
Uncertainty surrounds many issues that exist at the intersection of bankruptcy law and intellectual property law. Section 363(f) of the Bankruptcy Code permits the debtor to sell assets free of a third party’s interest in such assets, provided one or more preconditions is satisfied. When a debtor rejects a license agreement pertaining to the debtor’s intellectual property, however, § 365(n) of the Bankruptcy Code allows the licensee to choose to retain its rights to use the intellectual property that was the subject of the rejected license agreement. One unsettled question is whether a debtor may sell intellectual property pursuant to …
The Case In Favor Of Waivable Employee Rights: A Contrarian View, William Corbett
The Case In Favor Of Waivable Employee Rights: A Contrarian View, William Corbett
Journal Articles
Most employee rights in U.S. labor and employment law are nonwaivable. Waivable employee rights exist most prominently in the law regarding noncompetes and mandatory arbitration agreements. In recent years, there has been substantial backlash against perceived employer confiscation of workers’ rights in these two areas. On January 5, 2023, the Federal Trade Commission issued a proposed rule prohibiting employers from entering into noncompete agreements with workers. In 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Clearly, the federal government has become concerned with employers’ opportunistic confiscation of employees’ waivable rights and …
Reconciling Property Rights With Carbon Capture And Storage, Keith B. Hall
Reconciling Property Rights With Carbon Capture And Storage, Keith B. Hall
Journal Articles
No abstract provided.
Power Corrupts, Emily Bremer
Power Corrupts, Emily Bremer
Journal Articles
Administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the president, and Congress. Tracing the field’s reorientation—from the New Deal–era cases that revealed the thin political will behind the Administrative Procedure Act to the emergence of the Chevron doctrine—this paper argues that administrative law’s obsession with power corrupts the field.
Decoupling Property And Education, Nicole Stelle Garnett
Decoupling Property And Education, Nicole Stelle Garnett
Journal Articles
Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that decoupling property and education also advances at least economic development goals. …
The Private Costs Of Behavioral Interventions, Avishalom Tor
The Private Costs Of Behavioral Interventions, Avishalom Tor
Journal Articles
The increasing popularity of behavioral interventions—also known as nudges—is largely due to their perceived potential to promote public and private welfare at dramatically lower costs than those of traditional regulatory instruments, such as mandates or taxes. Yet, though nudges typically involve low implementation costs, scholars and policymakers alike tend to underestimate their often-substantial private costs. Once these costs are accounted for, most nudges turn out to generate significantly lower net benefits than assumed, and some prove less efficient or less cost-effective than traditional instruments. At other times, the private costs of behavioral interventions are sufficiently large to render them socially …
Book Review, Cindy Tian
Book Review, Cindy Tian
Journal Articles
Reviewing:
Strum, Philippa. On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law. Lawrence, Kansas: University Press of Kansas, 2022. 206p. $21.95.
Allocating State Authority Over Charitable Nonprofit Organizations, Lloyd H. Mayer
Allocating State Authority Over Charitable Nonprofit Organizations, Lloyd H. Mayer
Journal Articles
This Essay considers the allocation of state authority to enforce the legal obligations particular to charities and their leaders among state officials, including attorneys general, judges, and legislators, and private parties. It first describes the existing allocation. It then reviews the most common criticisms of this allocation, which primarily focus on two concerns: politicization and lack of sufficient enforcement. Finally, it evaluates the most notable proposals for reallocating this authority, including the reallocation of this authority in part to private parties.
This Essay concludes that reform proposals have two fundamental flaws. First, proposals aimed at countering the political nature of …
Abortion—A Question Of Human Rights, Geoffrey J. Bennett, Christina M. Lyon
Abortion—A Question Of Human Rights, Geoffrey J. Bennett, Christina M. Lyon
Journal Articles
Unlike the American Supreme Court which has been prepared to acknowledge, confront, and attempt to resolve the many problems associated with abortion, the European Commission of Human Rights in two cases that have only recently been reported has disappointingly side-stepped many of the difficult issues involved, and raised more questions than it answers. Furthermore, the reasoning in these decisions, which are concerned with the interpretation of several of the Articles of the European Convention on Human Rights, is at times vague and curiously ill-argued. The two decisions are first a German case, Bruggeman and Scheuten v Federal Republic of Germany …
The Under-Enforcement Of Crimes Against Black Women, Lisa Avalos
The Under-Enforcement Of Crimes Against Black Women, Lisa Avalos
Journal Articles
It is well known that over-policing has a severe adverse impact on communities of color. What is less well known is that over-policing is accompanied by a corollary—a pervasive and systemic under-policing of violence against women of color. The refusal to see women of color as victims of crime who are worthy recipients of justice, and to minimize the severity of violence committed against them, are habits that are deeply embedded in the American system of [in]justice. From an 1855 Supreme Court decision refusing to recognize a female slave’s right to sexual autonomy to a prosecutor’s 2021 decision to prosecute …
The Educated Retail Investor: A Response To "Regulating Democratized Investing", Christina M. Sautter, Sergio Alberto Gramitto Ricci
The Educated Retail Investor: A Response To "Regulating Democratized Investing", Christina M. Sautter, Sergio Alberto Gramitto Ricci
Journal Articles
The diffusion of mobile-first investing apps, like Robinhood, has increased retail investor participation in financial markets, particularly from the Millennial and GenZ generations, and has increased the diversity of retail investors. However, mobile-first investing apps are not free from controversy. In Regulating Democratized Investing, Abraham Cable tackles the debate on regulating mobile-first investing apps and largely opposes paternalistic regulation, which would raise unsurmountable barriers at the entrance of the stock market for retail investors. But it concedes to a form of regulation that in Cable’s own words “serves ultra-retail investors a modest portion of what they really want.” We strongly …
Proper Parties, Proper Relief, Samuel L. Bray, William Baude
Proper Parties, Proper Relief, Samuel L. Bray, William Baude
Journal Articles
From the Introduction
In the last Term at the United States Supreme Court [2022], standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v. Nebraska and Department of Education v. Brown, as well as the challenge to the Administration’s immigration priorities in United States v. Texas and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brackeen. Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Elenis. And standing may have been the reason for the Court’s stay …
The Secret Sauce: Examining Law Schools That Overperform On The Bar Exam, Derek T. Muller, Christopher J. Ryan Jr.
The Secret Sauce: Examining Law Schools That Overperform On The Bar Exam, Derek T. Muller, Christopher J. Ryan Jr.
Journal Articles
Since 2010, law schools have faced declining enrollment and entering classes with lower predictors of success despite recent signs of improvement. At least partly as a result, rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates' chances of success on the bar exam, and some schools have dramatically outperformed their predicted bar exam passage rates. This Article examines which schools do so and why.
Research for this Article began by accounting for law schools' incoming class credentials to predict an expected bar …
Review Of Tom Ginsburg, Democracies And International Law, Diane A. Desierto
Review Of Tom Ginsburg, Democracies And International Law, Diane A. Desierto
Journal Articles
Review of Tom Ginsburg, Democracies and International Law. Cambridge: Cambridge University Press, 2021. Pp. 250. £29.99. ISBN: 9781108843133.
Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo
Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo
Journal Articles
his Article uses two recent decisions -one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors - to explore deeper connections between classaction settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the …
Disaggregating State Bankruptcy, Michael A. Francus
Disaggregating State Bankruptcy, Michael A. Francus
Journal Articles
States today face fiscal challenges that they cannot surmount. With trillions in debt and billions in deficits, states are rapidly reaching the point where they cannot satisfy their obligations to pensioners, employees, and residents. This deterioration of state finances has, in turn, revived the debate over whether Congress should expand the Bankruptcy Code to allow states to file for bankruptcy. The debate, though, overlooks how, as a practical matter, bankruptcy is already available to financially distressed states. Chapter 9 of the Bankruptcy Code permits a state’s political subdivisions, public agencies, and instrumentalities to file for bankruptcy if the state authorizes …
Election Subversion And The Writ Of Mandamus, Derek T. Muller
Election Subversion And The Writ Of Mandamus, Derek T. Muller
Journal Articles
Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the …
Nonprofits, Taxes, And Speech, Lloyd H. Mayer
Nonprofits, Taxes, And Speech, Lloyd H. Mayer
Journal Articles
Federal tax law is of two minds when it comes to speech by nonprofits. The tax benefits provided to nonprofits are justified in significant part because they provide nonprofits great discretion in choosing the specific ends and means to pursue, thereby promoting diversity and pluralism. But current law withholds some of these tax benefits if a nonprofit engages in certain types of political speech. Legislators have also repeatedly, if unsuccessfully, sought to expand these political speech restrictions in various ways. And some commentators have proposed denying tax benefits to groups engaged in other types of disfavored speech, including hate speech …
The President Of The Senate, The Original Public Meaning Of The Twelfth Amendment, And The Electoral Count Reform Act, Derek T. Muller
The President Of The Senate, The Original Public Meaning Of The Twelfth Amendment, And The Electoral Count Reform Act, Derek T. Muller
Journal Articles
When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?
This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. …
The Story Of Beauharnais V. Illinois, Samantha Barbas
The Story Of Beauharnais V. Illinois, Samantha Barbas
Journal Articles
No abstract provided.
Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet
Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet
Journal Articles
Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …
Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen A. Drew, Marissa Egloff, Josie Middione
Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen A. Drew, Marissa Egloff, Josie Middione
Journal Articles
On the fiftieth anniversary of Title IX, it is important to recognize both its historic nature and how it has evolved in political and social context. This Article will begin by examining the history of women’s athletics pre–Title IX, focusing on what activities women participated in, why, and how societal norms shaped their ability to do so. Next, the Article will examine the status of women’s athletic opportunities as Title IX was first proposed, with an emphasis upon its nexus to the women’s rights movement and the Equal Rights Amendment initiative. The Article will then provide historical background for key …
By The Inch, It’S A Cinch: The Case For Go-Ing Slow In First-Year Legal Writing Courses, Patrick J. Long
By The Inch, It’S A Cinch: The Case For Go-Ing Slow In First-Year Legal Writing Courses, Patrick J. Long
Journal Articles
No abstract provided.
Let's Not Do Responsibility Skepticism, Ken M. Levy
Let's Not Do Responsibility Skepticism, Ken M. Levy
Journal Articles
I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminal, exacerbate mass incarcerations, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's 'illusionist' response to responsibility skeptics - that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice system - is generally compelling, it would not work if a majority of society were to convert, theoretically and …
Statutory Interpretation And Agency Disgorgement Power, Caprice L. Roberts
Statutory Interpretation And Agency Disgorgement Power, Caprice L. Roberts
Journal Articles
What happens when obstacles foreclose claims and threaten to leave parties without adequate relief? Or, when the cause of action escapes conventional classification? Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies? Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach? It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is …
Does An Initial Public Offering (Ipo) Issuer's Securities And Exchange Commission Registration Fee Calculation Method Predict Pricing Revisions And Ipo Underpricing?, Patrick Corrigan
Journal Articles
This paper proposes a new proxy for the ex ante expectations of issuers and their underwriters about the direction of pricing revisions during the roadshows of an initial public offering (IPO): the way issuers elect to calculate the registration fees owed to the Securities and Exchange Commission. Consistent with fee-minimizing decision-making, I find that the choice of fee calculation method is associated with pricing revisions and IPO underpricing. This relationship suggests that issuers or their advisors may not incorporate economically significant private valuation information into the initial pricing range estimate and initial public offering price. The results provide empirical support …
Multicultural Populations And Mixed Legal Systems In The United States: Louisiana And Puerto Rico, Olivier Moréteau, Luis Muniz Arguelles
Multicultural Populations And Mixed Legal Systems In The United States: Louisiana And Puerto Rico, Olivier Moréteau, Luis Muniz Arguelles
Journal Articles
No abstract provided.