Volume 70 Category
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...
Going Postal: Analyzing the Abuse of Mail Covers Under the Fourth Amendment
Oct. 7, 2017—Going Postal ABSTRACT Since at least the late 1800s, the United States government has regularly tracked the mail of many of its citizens. In 2014 alone, for example, the government recorded all data on the outside of the mail parcels of over 50,000 individuals via a surveillance initiative known as the mail covers program. In...
Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism
Oct. 7, 2017—Do Your Job ABSTRACT Despite efforts to challenge certain occupational licensing schemes as impermissibly driven by naked economic protectionism, federal appellate courts disagree on the legitimacy owed to the protectionist motivations that commonly prompt these regulations. To eliminate the current confusion, this Note advocates for the application of rational-basis-with-judicial-engagement review. The Supreme Court has demonstrated...
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....
For What It’s Worth: The Role of Race- and Gender-Based Data in Civil Damages Awards
May. 10, 2017—For What It’s Worth: The Role of Race- and Gender-Based Data in Civil Damages Awards AUTHOR J.D. Candidate, 2017, Vanderbilt University Law School; B.S. & B.A., 2014, University of Florida.
Police Violence Against People with Mental Disabilities: The Immutable Duty Under the ADA to Reasonably Accommodate During Arrest
May. 10, 2017—Police Violence Against People with Mental Disabilities: The Immutable Duty Under the ADA to Reasonably Accommodate During Arrest AUTHOR J.D. Candidate, 2017, Vanderbilt University Law School; B.A., 2012, University of Florida.
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...