Articles
Consenting to Adjudication Outside the Article III Courts
Apr. 18, 2018—Consenting-to-Adjudication-Outside-the-Article-III-Courts ABSTRACT Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article...
Can a Court Change the Law by Saying Nothing?
Apr. 18, 2018—Can-a-Court-Change-the-Law-by-Saying-Nothing ABSTRACT Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s...
Procedural Design
Apr. 18, 2018—Procedural-Design ABSTRACT The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the...
Funding Restrictions and Separation of Powers
Mar. 13, 2018—Funding-Restrictions-and-Separation-of-Powers ABSTRACT Congress’s “power of the purse”—its authority to deny access to public funds—is one of its most essential constitutional authorities. A crucial check on executive overreaching, it may provide authority to stop presidents in their tracks. Yet Congress and the executive branch have developed widely divergent views on the scope of this authority. During the...
The Origins (and Fragility) of Judicial Independence
Mar. 13, 2018—The-Origins-and-Fragility-of-Judicial-Independence ABSTRACT The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look...
Interpreting an Unamendable Text
Mar. 13, 2018—Interpreting-an-Unamendable-Text ABSTRACT Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as...
The Transparency Tax
Jan. 18, 2018—The Transparency Tax ABSTRACT Transparency is critical to good governance, but it also imposes significant governance costs. Beyond a certain point, excess transparency acts as a kind of tax on the legal system. Others have noted the burdens of maximalist transparency policies on both budgets and regulatory efficiency, but they have largely ignored the deeper...
Contract as Commodified Promise
Jan. 18, 2018—Contract as Commodified Promise ABSTRACT Many scholars assume that lawmakers should design contract law with the goal of facilitating commercial promises. But the question of which promises count as commercial remains neglected. This Article argues that this question matters more than one might initially expect. Once we understand commerciality in terms of commodification—roughly, treating something...
Adminization: Gatekeeping Consumer Contracts
Jan. 18, 2018—Adminization Gatekeeping Consumer Contracts ABSTRACT Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against J.P. Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not...
Borders and Bits
Jan. 18, 2018—Borders and Bits ABSTRACT Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data...
Reverse Political Process Theory
Oct. 7, 2017—Reverse Political Process Theory ABSTRACT Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under...
A Theory of Differential Punishment
Oct. 7, 2017—A Theory of Differential Punishment ABSTRACT A puzzle has long pervaded the criminal law: why are two offenders who commit the same criminal act punished differently when one of them, due to circumstances beyond her control, causes more harm than the other? This tradition of result-based differential punishment—the practice of varying offenders’ punishment based on...
Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb
Oct. 7, 2017—Regulating Business Innovation as Policy Disruption ABSTRACT Many scholars have invoked the term “disruptive innovation” when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy are surely important, but we argue that recent scholarship focusing on...
Reciprocal Legitimation in the Federal Courts System
May. 10, 2017—Reciprocal Legitimation in the Federal Courts System ABSTRACT Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent...
“Plausible Cause”: Explanatory Standards in the Age of Powerful Machines
May. 10, 2017—“Plausible Cause”: Explanatory Standards in the Age of Powerful Machines ABSTRACT The Fourth Amendment’s probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause—and warrant a search or seizure—it must be plausible. The police must be...
Organizational Law as Commitment Device
May. 10, 2017—Organizational Law as Commitment Device ABSTRACT What is the essential role of the law of enterprise organization? The dominant view among business law scholars today is that organizational law—the law of partnerships, corporations, private trusts, and their variants—serves primarily to structure relations between business owners, on the one hand, and business creditors, on the other....