Articles Category
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....
Delaware Courts Confront Question Whether “Cleansing Effect” of Corwin Applies to Duty of Loyalty Claims
May. 9, 2017—Delaware Courts Confront Question ABSTRACT Recent rulings settle apparent divergence between Comstock and Larkin decisions and narrow exception to application of Corwin to cases where controlling stockholder extracts personal benefits in a merger transaction AUTHORS Robert S. Reder Professor of the Practice of Law at Vanderbilt University Law School, has been serving as a consulting...
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...
Reconstructing Local Government
Mar. 21, 2017—Reconstructing Local Government ABSTRACT After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of...
The Jurisdiction Canon
Mar. 21, 2017—The Jurisdiction Canon ABSTRACT This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed...
Causal Responsibility and Patent Infringement
Mar. 21, 2017—Causal Responsibility and Patent Infringement ABSTRACT It is not uncommon for multiple parties in the stream of commerce—manufacturers, distributors, end users—to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them—particularly when plaintiffs asserted so-called method patents, which cover specific “steps,” or actions—have...
Terrorist Speech on Social Media
Mar. 21, 2017—Terrorist Speech on Social Media ABSTRACT The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of...