Volume 65
Mass Torts and Due Process
May. 31, 2012—Almost all courts and scholars disfavor the use of class actions in mass tort litigation because class actions infringe on each plaintiff’s control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting litigant autonomy is a requirement of due process and has done so in recent decisions concerning...
Delegating Supremacy?
May. 31, 2012—Under the Supreme Court’s preemption doctrine, federal agencies may preempt state law in much the same way that Congress can. While the Supremacy Clause clearly empowers Congress to preempt state law, administrative preemption rests on the undertheorized assumption that Congress may “delegate supremacy” to agencies. This Article challenges the constitutionality of that premise and offers...
Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act
May. 31, 2012—The framers of the U.S. Constitution wrote the Elections Clause to address concerns that the states would fail to call congressional elections and weaken the already fragile new government. The Clause is a delegation of sovereignty from the states to the federal government because, although states select the “time, place, and manner of elections,” Congress...
Qualifying Qualified Immunity
May. 31, 2012—
Costly Intellectual Property
Apr. 27, 2012—Though they derive from the same constitutional source of law, patents and copyrights vest very differently. Patents arise only after an applicant successfully navigates a cumbersome and expensive examination, while copyrights arise costlessly upon mere fixation of a work in a tangible medium of expression. Each of these vesting systems has drawn much criticism. Some...
Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment
Apr. 27, 2012—The criminal law’s formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender’s liability and the grade of the offense. A look at how the punishment decisionmaking process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account...
Loss Aversion and the Law
Apr. 27, 2012—Why is tort law much more developed than unjust enrichment law? Is there a reason for the very different legal treatment of governmental takings and governmental givings? Why are contract remedies structured around the four “interests” and why is the disgorgement interest only marginally protected? What might explain the much greater constitutional protection of civil...
Siblings in Law
Apr. 27, 2012—Siblings in Law Legal regulation of the family focuses on two canonical relationships: marriage and parenthood. Courts, legislatures, and scholars routinely take family law’s concentration on just two family ties to be so commonsensical as to require no explicit discussion or explanation. Yet marriage and parenthood are not the only family relationships that can be...
Making Banks Transparent
Mar. 30, 2012—As the Financial Crisis and the more recent European sovereign debt crisis illustrated, U.S. financial institutions represent uniquely opaque organizations for investors in capital markets. Although bank regulatory policy has long sought to promote market discipline of banks through enhanced public disclosure, bank regulatory disclosures are notoriously lacking in granular, position-level information concerning banks’ credit...
Undocumented Workers and Concepts of Fault: Are Courts Engaged in Legitimate Decisionmaking?
Mar. 30, 2012—This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are...
Eyewitnesses and Exclusion
Mar. 30, 2012—The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged: it is obvious where the defendant is sitting, and, importantly, the memory of the eyewitness should have been tested before trial...
On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction
Mar. 30, 2012—Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but...