Volume 63 Category
The Future of Agency Independence
Apr. 30, 2010—Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies...
Optimizing Private Antitrust Enforcement
Apr. 30, 2010—Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails...
Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers
Apr. 30, 2010—In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will...
Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause
Apr. 30, 2010—This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws...
Statewide Capital Punishment: The Case for Eliminating Counties’ Role in the Death Penalty
Mar. 27, 2010—In almost every state that authorizes capital punishment, local county prosecutors are responsible for handling capital trials and for deciding when to seek the death penalty. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek...
The Consequences of Congress’s Choice of Delegate: Judicial and Agency Interpretations of Title VII
Mar. 27, 2010—Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants—and even less about the consequences—of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective...
Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act
Mar. 27, 2010—The Genetic Information Nondiscrimination Act (“GINA”), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective...
Subverting Shareholder Rights: Lessons from News Corp.’s Migration to Delaware
Feb. 3, 2010—This Article critically analyzes News Corp.’s reincorporation in Delaware against the backdrop of two major contemporary corporate governance debates relating to shareholder empowerment and convergence theory. Legal scholars opposing greater shareholder power often argue that the lack of shareholder participatory rights under U.S. law provides evidence that such rights are neither desired nor valued by...
Evaluating Norms: An Empirical Analysis of the Relationship between Norm-Content, Operator, and Charitable Behavior
Feb. 3, 2010—There are several kinds of norms, and this variety can lead to spirited debate about the best norm to employ for the regulation of a particular activity. Should the norm be mandatory or aspirational? A rule or a standard? One important area in which norm-choice has come to the fore is the American Bar Association’s...