Volumes Category
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...
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...
Unambiguous Deterrence: Ambiguity Attitudes in the Juvenile Justice System and the Case for a Right to Counsel During Intake Proceedings
Mar. 21, 2017—Unambiguous Deterrence Ambiguity Attitudes in the Juvenile Justice System and the Case for a Right to Counsel During Intake Proceedings ABSTRACT This Note is the first to apply behavioral insights about ambiguity attitudes to deterrence models within the juvenile justice system. Drawing on insights from behavioral economics and psychology literature, this Note argues that juveniles...
No VIP Treatment: ACOs Should Not Get Waiver Protection from the Prohibition on Beneficiary Inducement
Mar. 21, 2017—No VIP Treatment ACOs Should Not Get Waiver Protection from the Prohibition on Beneficiary Inducement ABSTRACT Accountable Care Organizations (“ACOs”) require flexibility from the existing healthcare fraud and abuse framework. This flexibility includes a waiver from the prohibition on beneficiary inducement, affording ACOs significant freedoms to employ inducements in ways that other healthcare delivery models...
Sector Agnosticism and the Coming Transformation of Education Law
Jan. 27, 2017—Sector Agnosticism and the Coming Transformation of Education Law ABSTRACT Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private school choice devices like vouchers, tax...
Monopolies in Multidistrict Litigation
Jan. 27, 2017—Monopolies in Multidistrict Litigation ABSTRACT When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet...
Aging Injunctions and the Legacy of Institutional Reform Litigation
Jan. 27, 2017—Aging Injunctions and the Legacy of Institutional Reform Litigation ABSTRACT Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional...