Volumes Category
Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles
May. 22, 2018—Rethinking-Conspiracy-Jurisdiction-in-Light-of-Stream-of-Commerce-and-Effects-Based-Jurisdictional-Principles ABSTRACT For decades, some courts have been willing to exercise personal jurisdiction over nonresident defendants based solely on the forum contacts of their coconspirators. This practice, termed “conspiracy jurisdiction,” has proven controversial among courts and commentators alike. On one hand, the actions of one member of a conspiracy are ordinarily attributable to other members...
Neuronal Testimonial: Brain-Computer Interfaces and the Law
May. 22, 2018—Neuronal-Testimonial-Brain-Computer-Interfaces-and-the-Law ABSTRACT Scientific researchers have developed a method of using brain-scanning technology to determine if patients in a coma-like condition, known as a “vegetative state,” are conscious despite their inability to communicate verbally or via motor actions. While in a brain scanner, patients “answer” yes-or-no questions by envisioning specific scenarios that activate different parts of...
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...
Private Benefits in Public Offerings: Tax Receivable Agreements in IPOs
Apr. 18, 2018—Private-Benefits-in-Public-Offerings-Tax-Receivable-Agreements-in-IPOs ABSTRACT Historically, an initial public offering (“IPO”) was a process whereby a company sold all of its underlying assets to the public. A new tax innovation, the “tax receivable agreement” (“TRA”), creates private tax benefits in public offerings by allowing pre-IPO owners to effectively keep valuable tax assets for themselves while selling the rest...
The Constitutional Case for Chevron Deference
Apr. 18, 2018—The-Constitutional-Case-for-Chevron-Deference ABSTRACT Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Essay shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An...
A Taste of Their Own Medicine: Examining the Admissibility of Experts’ Prior Malpractice Under the Federal Rules of Evidence
Apr. 18, 2018—A-Taste-of-Their-Own-Medicine ABSTRACT Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury’s decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity...
Combating the Enemy Within: Regulating Employee Misappropriation of Business Information
Apr. 18, 2018—Combating-the-Enemy-Within ABSTRACT Technological advancements vastly improve efficiency and productivity in the workplace. However, technology also brings with it the ability to transmit mass amounts of business information with ease. As technology continues to evolve and become increasingly prevalent in the modern workplace, the insider presents a considerable threat to employers. In fact, employers increasingly face...
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 Shifting Tides of Merger Litigation
Mar. 13, 2018—The-Shifting-Tides-of-Merger-Litigation ABSTRACT In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to...
Sink or Sell: Using Real Estate Purchase Options to Facilitate Coastal Retreat
Mar. 13, 2018—Sink-or-Sell-Using-Real-Estate-Purchase-Options-to-Facilitate-Coastal-Retreat ABSTRACT Despite the political contention surrounding climate change, scientists almost universally agree that sea levels are rising and will continue to do so. In light of this inevitability, commentators and policymakers have begun to recognize that retreat—the withdrawal of people and development from coastal areas—will become necessary, at least in certain areas. Even so,...
Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee
Mar. 13, 2018—Invisible-Bars-Adapting-The-Crime-of-False-Imprisonment-to-Better-Address-Coercive-Control-and-Domestic-Violence-in-Tennessee ABSTRACT On average, three or more women are murdered by their intimate partners in the United States every day. Despite the now well-known correlation between coercive control—the strategic use of oppressive behavior to control primarily female partners—and intimate partner homicide, most states continue to focus their criminal domestic violence laws solely on physical violence....
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...