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Volume 66

Against Proportional Punishment

May. 23, 2013—The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished. Crediting time served conflicts with the commonly held view that punishment should...

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Governing the Anticommons in Aggregate Litigation

May. 23, 2013—This Article argues that there is an “anticommons” problem in aggregate litigation. An anticommons occurs when the consent of too many owners is needed to use a resource at its most efficient scale. When many plaintiffs have similar claims against a common defendant, those claims are often worth more if they can be bundled up...

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Foreign Affairs Federalism: A Revisionist Approach

Apr. 29, 2013—This Article analyzes how federal courts should resolve disputes implicating both federalism and foreign affairs concerns when no textual source of law provides dispositive direction. This challenge, which arises in what Justice Jackson once called the “zone of twilight,” occurs with surprising frequency. Most recently, it can be discerned in Justices Kennedy’s and Scalia’s dueling...

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Resolving the ALJ Quandary

Apr. 29, 2013—Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S....

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Property: A Bundle of Sticks or a Tree?

Apr. 29, 2013—In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical-liberal theorists of property, and the bundle of rights model, developed in the United States by Hohfeld and the realists. This Article retrieves an alternative concept of property,...

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Cultivating a Green Political Landscape: Lessons for Climate Change Policy from the Defeat of California’s Proposition 23

Mar. 28, 2013—Around the same time as federal climate change legislation died in the U.S. Senate, California voters overwhelmingly rejected a ballot initiative to repeal the state’s climate change regulatory system. The opposition to Proposition 23 was so successful in part because no major business interests within the state were willing to support the Proposition. That support...

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Unpacking the Force of Law

Mar. 28, 2013—In 2011, in Mayo Foundation for Medical Education and Research v. United States, the Supreme Court held that general authority Treasury regulations adopted using notice-and-comment rulemaking carry the force of law and thus are eligible for Chevron deference. In the wake of Mayo, courts and scholars are now struggling with its implications for whether temporary...

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