April, 2017
Short-Circuiting the New Major Questions Doctrine
Apr. 25, 2017—Short-Circuiting the New Major Questions Doctrine Response to Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777 (2017). ABSTRACT In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They...
Changing Lanes: The Criminalization of Refusal in DUI Laws
Apr. 25, 2017—Changing Lanes: The Criminalization of Refusal in DUI Laws AUTHOR J.D. Candidate , May 2017, Vanderbilt University Law School; B.S., 2013, Tulane University.
To “B” or not to “B”: Duties of Directors and Rights of Stakeholders in Benefit Corporations
Apr. 20, 2017—To-B-or-not-to-B-Duties-of-Directors-and-RIghts-of-Stakeholders-in-Benefit-Corporations ABSTRACT An emerging legal form for business entities is the Benefit Corporation, a variation on the traditional for-profit corporation that grants the board of directors broader discretion to consider nonshareholder constituents in corporate management decisions. Although this corporate form adequately responds to consumers’ weariness of “big business” and attracts shareholders who value social responsibility...
Minor Courts, Major Questions
Apr. 20, 2017—Minor Courts, Major Questions ABSTRACT In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency’s controversial interpretation of a key provision of a regulatory statute. Lower courts now apply “Chevron deference” as a matter of course, upholding agencies’ reasonable interpretations of ambiguous provisions within the statutes they administer....
Undemocratic Restraint
Apr. 20, 2017—Undemocratic Restraint ABSTRACT For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not...
Consumer Bankruptcy, Nondischargeability, and Penal Debt
Apr. 20, 2017—Consumer Bankruptcy, Nondischargeability, and Penal Debt ABSTRACT This Article examines the issue of categorically nondischargeable debts in the Bankruptcy Code. These debts are excepted from discharge ostensibly because they indicate that the debtor incurred the debt through some misconduct, there is an important public policy at play that requires the debt to be excepted from...
Saving the Political Consensus in Favor of Free Trade
Apr. 20, 2017—Saving the Political Consensus in Favor of Free Trade ABSTRACT 2016 was the year that the political consensus in favor of liberalized international trade collapsed. Today, across the world, voters’ belief that international trade agreements lead to economic inequality threatens to derail ratification of the next generation of trade agreements and undo the substantial gains...
Substantial Guidance Without Substantive Guides: Resolving the Requirements of Moore v. Texas and Hall v. Florida
Apr. 20, 2017—Substantial Guidance Without Substantive Guides: Resolving the Requirements of Moore v. Texas and Hall v. Florida ABSTRACT When the Supreme Court banned the execution of the intellectually disabled in Atkins v. Virginia, it partially left the criteria for identifying members of that group to the states. Since then, the decisions in Hall v. Florida and...
A Distinction Without a Difference: Convergence in Claim Construction Standards
Apr. 20, 2017—A Distinction Without a Difference: Convergence in Claim Construction Standards ABSTRACT The current patent regime applies different standards to interpret patents based on the forum interpreting the patent—the PTO applies the broadest reasonable interpretation standard to construe patent claims, while district courts apply the Phillips standard. The recent spike in inter partes review proceedings at...
Reading Remedially: What Does King v. Burwell Teach Us About Modern Statutory Interpretation, and Can It Help Solve the Problems of CERCLA § 113(h)?
Apr. 20, 2017—Reading Remedially: What Does King v. Burwell Teach Us About Modern Statutory Interpretation, and Can It Help Solve the Problems of CERCLA § 113(h)? ABSTRACT How far should judges go in trying to effectuate the goals of a statute, especially in a world where Congress is increasingly partisan and unproductive? In King v. Burwell, the...
The Township, The Hope of Democracy?: History As Moral Act
Apr. 6, 2017—The Township, The Hope of Democracy?: History As Moral Act Response to Daniel Farbman, Reconstructing Local Government, 70 Vand. L. Rev. 413 (2017). AUTHOR Samuel I. Golieb Fellow, New York University School of Law. JD, Harvard Law School. Ph.D. Candidate in History, Princeton University.