Disagreement About Chevron: Is Administrative Law The “Law of Public Administration”?
Elizabeth Fisher and Sidney Shapiro
The Combination of Chevron and Political Polarity Has Awful Effects
Richard J. Pierce
Optimal Sludge? The Price of Price of Program Integrity
Cass R. Sunstein and Julien L. Gosset
Sex-Based Brain Differences and Emotional Harm
Betsy J. Grey
Religious Liberty in a Pandemic
Caroline Mala Corbin
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Court Culture and Criminal Law Reform
Mitali Nagrecha, Sharon Brett & Colin Doyle
Criminalization of Poverty: Much More to Do
Peter B. Edelman
Kleptocracy Buyouts?: A Response to Professors Blocher and Gulati
Matthias Goldmann
Barricading the Immigration Courts
Jennifer Lee Koh
The Justices’ Forgotten Debuts
Andrew R. Gould
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Forensics, Statistics, and Law: Ten Years After “A Path Forward”
Brandon Garrett
The Public Reception of the “Path Forward” Report
Steven Kendall
Forensics at the Federal Level
Sue Ballou
The Trajectory of Forensics
Peter Neufeld
Statistics and the Impact of the 2009 NAS Report
Karen Kafadar
Equal Dignity and Unequal Protection: A Framework for Analyzing Disparate Impact Claims
Kyle P. Nodes
Collateral Damage: Private Merger Lawsuits in the Wake of Section 2’s Contraction
Paul F. Brzyski
***
Intelligent Design & Egyptian Goddess: A Response to Professors Buccafusco, Lemly & Masur
Sarah Burstein
You Can Lead A Horse to Water: Heller And the Future of Second Amendment Scholarship
Eric Ruben & Joseph Blocher
The Constitutional Politics Heller Launched
Michael C. Dorf
Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court
Sanford Levinson
Romanticism Meets Realism in Second Amendment Adjudication
Darrell A. H. Miller
A Close Reading of an Excellent Distant Reading of Heller in the Courts
George A. Mocsary
Is the Second Amendment A Second-Class Right?
Adam M. Samaha & Roy Germano
Collaborative Construction of a New Legal Field
Ronald F. Wright & Mark A. Hall
Data Indicate Second Amendment Underenforcement
David B. Kopel
* * *
Does The American Rule Promote Access to Justice? Was That Why It Was Adopted?
John Leubsdorf
Boiling Down Boilerplate in M&A Agreements: A Response to Choi, Gulati, & Scott
Robert Anderson & Jeffrey Manns
What Does Puerto Rican Citizenship Mean for Puerto Rico’s Legal Status?
Joseph Blocher & Mitu Gulati
Quantitative Legal History—Empirics and the Rule of Law in the Antebellum Judiciary
Alfred L. Brophy
Justice and Judgment Among the Whomever: An Anthropological Approach to Judging
John Conley
Evaluating Judges and Judicial Institutions: Reorienting the Perspective
Mitu Gulati, David E. Klein & David F. Levi
Evaluating Judges
Judge Harris Hartz
Talking Judges
Jack Knight & Mitu Gulati
Diversity, Tenure, and Dissent
Joanna Shepherd
Investigating Judicial Responses to Rules
Emily Sherwin
Distinguishing Causal and Normative Questions in Empirical Studies of Judging
Patrick S. Shin
Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging
Brian Z. Tamanaha
* * *
Black Hole Apparitions
Lisa Bernstein
Pari Passu Clauses and the Skeumorph Problem in Contract Law
Douglas G. Baird
Cinderella Sovereignty
Anna Gelpern
Insurance Policies: The Grandparents of Contractual Black Holes
Christopher C. French
Administrative Rights in Institutional Perspective
Eloise Pasachoff
Living Constitutional Theory
Andrew Coan
Sports Betting Has an Equal Sovereignty Problem
Ryan M. Rodenberg & John T. Holden
The Asymmetry of Crimes By and Against Police Officers
Monu Bedi
A (Very Thin) Market for Sovereign Control
W. Mark C. Weidemaier
Blocher, Gulati, and Coase: Making or Buying Sovereignty?
Paul B. Stephan
Friendly and Hostile Deals in the Market for Sovereign Control: A Response to Professors Blocher and Gulati
John F. Coyle
Should We Buy Selling Sovereignty?
Stephen Clowney
Determining Classified Evidence’s “Primary Purpose”: The Confrontation Clause and Classified Information After Ohio v. Clark
J. Peter Letteney
PDF
Chevron Deference and Patent Exceptionalism
Christopher J. Walker
PDF
A response to Administrative Power in the Era of Patent Stare Decisis by Stuart Minor Benjamin & Arti K. Rai, and Working Without Chevron: The PTO as Prime Mover by John M. Golden, both printed in Vol. 65, Issue 8
Describing Drugs: A Response to Professors Allison and Ouellette
Jacob S. Sherkow
PDF
A response to How Courts Adjudicate Patent Definiteness and Disclosure by John R. Allison and Lisa Larrimore Ouellette, printed in Vol. 65, Issue 4
Growing Up with Scout and Atticus: Getting from To Kill a Mockingbird Through Go Set a Watchman
Robert E. Atkinson, Jr.
PDF
Professor Atkinson’s follow-up to his Liberating Lawyers: Divergent Parallels in Intruder in the Dust and To Kill a Mockingbird, printed in Vol. 49, Issue 3
Dennis D. Hirsch
PDF
A response to Privacy as a Public Good by Joshua A.T. Fairfield and Christoph Engel, printed in Vol. 65, Issue 3
Response to Privacy as a Public Good
Priscilla M. Regan
PDF
A response to Privacy as a Public Good by Joshua A.T. Fairfield and Christoph Engel, printed in Vol. 65, Issue 3
Implementing Marriage Equality In America
Carl Tobias
PDF
Exotic Addiction
Melissa A. Morgan
August 14, 2015
PDF
“Advice and Consent” In the Appointments Clause: From Another Historical Perspective
Steven I. Friedland
May 24, 2015
PDF
A Fourth Way? Bringing Politics Back into Recess Appointments (And the Rest of the Separation of Powers, Too)
Josh Chafetz
May 24, 2015
PDF
The Need for a Law of Church and Market
Nathan B. Oman
April 25, 2015
PDF
Punishing The Poor Through Welfare Reform: Cruel and Unusual?
Jennifer E.K. Kendrex
March 17, 2015
PDF
The Divisibility of Crime
Jessica A. Roth
February 17, 2015
PDF
An Essay on Descamps v. United States, 133 S. Ct. 2276 (2013)
The Rule of Law as a Law of Standards: Interpreting the Internal Revenue Code
Alice G. Abreu & Richard K. Greenstein
January 11, 2015
PDF
In dialogue with Lawrence A. Zelenak, Custom and the Rule of Law in the Administration
of the Income Tax, printed in Vol. 62, Issue 3
Charting a New Course: Metal-Tech v. Uzbekistan and the Treatment of Corruption in Investment Arbitration
Michael A. Losco
Nov. 18, 2014
PDF
An Essay in conversation with Streamlining the Corruption Defense: A Proposed Framework for FCPA-ICSID Interaction, printed in Vol. 63, Issue 5
Pragmatic Administrative Law and Tax Exceptionalism
Richard Murphy
Oct. 27, 2014
PDF
A response to the 2014 Duke Law Journal Administrative Law Symposium: Taking Administrative Law to Tax
Which Institution Should Determine Whether an Agency’s Explanation of a Tax Decision is Adequate?: A Response to Steve Johnson
Richard J. Pierce, Jr.
Oct. 27, 2014
PDF
A response to Reasoned Explanation and IRS Adjudication by Professor Steve R. Johnson, printed in Vol. 63, Issue 8
What Patent Attorney Fee Awards Really Look Like
Saurabh Vishnubhakat
Apr. 6, 2014
PDF
Emergency Power and Two-Tiered Legality
Curtis A. Bradley
Dec. 31, 2013
PDF
A response to Interpreting Presidential Powers by Professor Richard H. Fallon Jr., printed in Vol. 63, Issue 2
The Youngstown Canon: Vetoed Bills and the Separation of Powers
Kristen E. Eichensehr
PDF
As presidents make ever more expansive claims of executive power, Congress’s ability and willingness to counter the executive is often limited. That makes all the more significant instances when Congress does overcome structural and political challenges to pass legislation to rein in the president. But thanks to the Supreme Court’s invalidation of legislative vetoes in INS v. Chadha, such congressional actions are necessarily subject to presidential veto. President Donald Trump, for example, vetoed joint resolutions aimed at restraining executive action relating to the border wall and war powers. Although vetoed bills are not binding law, this Article argues that neither are they legal nullities; instead, judges, executive branch lawyers, and other interpreters can use majoritarian congressional opposition to the executive as an interpretive tool. The result is a novel “Youngstown canon of construction”: when Congress passes a bill or resolution by a majority of both houses and the president exercises the veto, preventing the act from becoming law, then the expressed congressional opposition to the president’s view should be used to narrowly construe the underlying statutory or constitutional authority the president is claiming, if that authority is ambiguous. The proposed canon would help to counteract overbroad claims of executive power in important areas such as war powers, the National Emergencies Act, treaty termination, and the scope of federal preemption of state laws.
Criminalizing Coercive Control Within the Limits of Due Process
Erin Sheley
PDF
The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” on their “day-to-day activities.” Such a vaguely drafted criminal statute would raise insurmountable due process problems under the U.S. Constitution.
Should the states wish to address the gravity of the harms of coercive control, however, this Article proposes an alternative statutory approach. It argues that a state legislature could combine the due process limits of traditionally enterprise-related offenses such as fraud and conspiracy with the goals of domestic abuse prevention to create a new offense based upon the fraud-like nature of coercively controlling behavior. It argues that the most useful legal framework for defining coercive control is similar to that of common law fraud, and that legislatures should adapt the scienter requirements of fraud to the actus reus of coercive control. In so doing, this Article also argues that it is risky for legislatures to punish gender-correlated offenses with specialized legal solutions, rather than recognizing the interrelationship between such offenses and other well-established crimes.
The Splinternet
Mark A. Lemley
PDF
Time to Reload: The Harms of the Federal Felon-in-Possession Ban in a Post-Heller World
Zach Sherwood
PDF
Federal law permanently prohibits anyone who has been convicted of a felony from possessing a firearm. Keeping lethal weapons out of the hands of those who pose a risk to public safety is no doubt a worthy policy goal. But the federal felon-in-possession ban is blunt, punitive, and supremely damaging to the ex-felons who fall within its ambit. The statute’s sweeping scope ensures that any ex-felon who possesses any firearm for any length of time for any reason can be swiftly and harshly punished. And it indiscriminately targets conduct that is often neither harmful nor criminal.
The felon-in-possession ban gained constitutional significance following the Supreme Court’s landmark decision in District of Columbia v. Heller. The Heller Court recognized for the first time an individual Second Amendment right to possess a firearm for self-defense in the home. Yet by imposing substantial criminal liability on any form of firearm possession by an ex-felon, the felon-in-possession ban categorically strips a sizable portion of Americans of this very same right.
This Note argues that it is high time to rethink the federal felon-in-possession ban’s role in a post-Heller world. It argues that the statute’s expansive reach is poorly tailored to addressing gun violence and highlights the weak doctrinal foundation on which the felon-in-possession ban is built. But this Note goes further than most existing scholarship by also examining the tangible, on-the-ground harms that the felon-in-possession ban inflicts on ex-felons and their communities—from needlessly complicating ex-felons’ reintegration into society, to burdening the Second Amendment rights of nonfelon family members, to effectively disarming large swaths of communities of color. Change is needed, and this Note recommends statutory reforms and constitutional challenges that would circumscribe the felon-in-possession ban’s scope.
The Constitution and the Campaign Trail: When Political Action Becomes State Action
Lauren N. Smith
PDF
Constitutional law often splits society into two realms: public and private. A person’s constitutional rights and obligations depend on her classification into one of these realms. Almost all constitutional rights are only protected against encroachment by the state, and thus whether an action constitutes private or state action is incredibly significant. However, the body of law that governs this determination—the state action doctrine—is notoriously muddled.
The longstanding assumption is that political candidates and their campaigns are private actors, though the Court has on occasion, such as in the “white primary” cases, held that action by political parties constitutes state action. However, in recent years, the focus of electioneering has shifted away from political parties, and the democratic process has become far more candidate centric. At the same time, actions that might violate the Constitution if they were carried out by a state actor, such as the removal of protestors from campaign rallies and the rescission of press credentials for campaign events, have become widely publicized. In light of these developments, this Note argues that it is time to consider whether a candidate’s actions should now be considered state action for purposes of constitutional tort claims. By combining elements from the Supreme Court’s many formulations of the state action doctrine and invoking the logic behind the cases in which the Court found state action by political parties, this Note proposes a framework for assessing whether a candidate and her campaign’s conduct on the campaign trail should be considered state action.