Articles
The Sins of Innocence in Standing Doctrine
Mar. 19, 2015—The Sins of Innocence in Standing Doctrine ABSTRACT Should reverse discrimination plaintiffs always be able to challenge race-conscious selection policies in court? Conventional standing doctrine requires plaintiffs to show that the contested policy or practice has caused a concrete, personal harm. Yet in affirmative action cases, courts seem to have quietly dispensed with this required...
The Geography of Bankruptcy
Mar. 19, 2015—The Geography of Bankruptcy ABSTRACT Companies routinely file bankruptcy cases in venues that have no meaningful connection to the company, its operations, or its stakeholders. This practice (1) divorces bankruptcy and venue from their ties to location; (2) disrupts the fundamental balance underlying the Bankruptcy Code by shifting the focus exclusively to the needs of...
Voting Squared: Quadratic Voting in Democratic Politics
Mar. 19, 2015—Voting Squared: Quadratic Voting in Democratic Politics ABSTRACT Conventional democratic institutions aggregate preferences poorly. The norm of one-person–one-vote with majority rule treats people fairly by giving everyone an equal chance to influence outcomes but fails to give proportional weight to people whose interests in a social outcome are stronger than those of other people. This...
A Tale of Two Jurisdictions
Mar. 19, 2015—A Tale of Two Jurisdictions ABSTRACT The Supreme Court has recently clarified one corner of personal jurisdiction—a court’s power to hale a defendant into court—and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is...
An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants
Jan. 26, 2015—An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants ABSTRACT Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able...
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?
Jan. 26, 2015—Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law? ABSTRACT The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear....
Original Meaning and the Precedent Fallback
Jan. 26, 2015—Original Meaning and the Precedent Fallback ABSTRACT There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield...
Statutory Interpretations and the Therapy of the Obvious
Jan. 26, 2015—Statutory Interpretations and the Theory of the Obvious AUTHOR University Professor of Law and Political Science, Vanderbilt University Law School.
The Role of Federal Law in Private Wealth Transfer: Introduction
Nov. 19, 2014—Introduction Symposium 2014 AUTHOR Centennial Professor in Law, Vanderbilt University Law School.
In Search of the Probate Exception
Nov. 19, 2014—In Search of the Probate Exception ABSTRACT As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal...
Federalization of the Law of Charity
Nov. 19, 2014—Federalization of the Law of Charity ABSTRACT To this day, the law of charity is often thought of as a matter for the states. In fact, the crucial law relating to charity is now almost always federal. For certain purposes, state law still determines whether a given entity is “charitable.” It also determines the propriety...
Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code
Nov. 19, 2014—Is-Federalization-of-Charity-Law-All-Bad-What-States-Can-Learn-from-the-Internal-Revenue-Code Commentary on Mark L. Ascher, Federalization of the Law of Charity, 67 Vand. L. Rev. 1581 (2014). AUTHOR Professor of Law, Benjamin N. Cardozo School of Law.
The Creeping Federalization of Wealth-Transfer Law
Nov. 19, 2014—The Creeping Federalization of Wealth-Transfer Law ABSTRACT This Article surveys areas of federalization of wealth-transfer law. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches...
Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff
Nov. 19, 2014—Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases- Hillman Doubles Down on Egelhoff ABSTRACT The probate codes in about a third of the states contain a so-called divorce revocation provision, applicable both to probate and nonprobate transfers. Such statutes address the situation in which a transferor’s will or will substitute designates...
Probate Law Meets the Digital Age
Nov. 19, 2014—Probate Law Meets the Digital Age ABSTRACT This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to...
The Stored Communications Act and Digital Assets
Nov. 19, 2014—The-Stored-Communications-Act-and-Digital-Assets Commentary on Naomi Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014). AUTHOR Professor of Law, University of California, Davis, School of Law (King Hall). Thanks to Naomi Cahn for helpful comments.