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Volume 68, Number 5

Overcriminalization’s New Harm Paradigm

Oct. 14, 2015—Overcriminalization’s New Harm Paradigm ABSTRACT The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject...

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Second Liens and the Leverage Option

Oct. 14, 2015—Second Liens and the Leverage Option ABSTRACT This Article demonstrates that the housing bubble was driven by second mortgages to a much greater extent than previously appreciated. A unique feature of American law allows homeowners to take out second mortgages, without the consent or even knowledge of the first mortgage lender. The result is an...

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Regulatory Exit

Oct. 14, 2015—Regulatory Exit ABSTRACT Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for...

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Empowering Shareholders, or Overburdening Companies? Analyzing the Potential Use of Instant Runoff Voting in Corporate Elections

Oct. 14, 2015—Empowering Shareholders, or Overburdening Companies? Analyzing the Potential Use of Instant Runoff Voting in Corporate Elections ABSTRACT In the corporate context, shareholder proxy access and short-slate elections of directors have been praised by proponents of shareholder rights for their ability to give minority shareholders greater say in the control of corporations. In the political world,...

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Hung Up on Words: A Conduct-Based Solution to the Problem of Conspiracy in Military Commissions

Oct. 14, 2015—Hung Up on Words: A Conduct-Based Solution to the Problem of Conspiracy in Military Commissions ABSTRACT In the wake of the 9/11 attacks, the United States established military commissions to try foreign nationals for violations of the law of war. These commissions soon came under a number of constitutional challenges, prominent among them being Ali...

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The Incompatibility of Due Process and Naked Statistical Evidence

Oct. 14, 2015—The Incompatibility of Due Process and Naked Statistical Evidence ABSTRACT Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities...

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