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n two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these...

This Article analyzes the claimed power of the president to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. In the most recent act of this historical drama, President Bush last year issued a surprise “Determination,”...

Work is central to much of life and to many areas of law, including recent transformations in the American welfare state. Despite this pervasive importance, work is notoriously difficult to define. Yet doing so is essential to the design and functioning of a work-based welfare system. This Article provides the first comprehensive analysis of how to define work for the purpose of satisfying...

Hepatitis C (HCV) in prisons is a public health crisis tied to current drug policy's emphasis on the mass incarceration of drug users. Prison policy acts as a barrier to HCV care by limiting medical care for the infected, especially drug users, and by inhibiting public health measures addressing the epidemic. This Comment argues that courts mistakenly limit prisoners’ Eighth Amendment right to...

In its recent and highly anticipated decision in MGM Studios, Inc. v. Grokster, Ltd., the U.S. Supreme Court appeared reluctant to make any significant changes to copyright law. The Court avoided comment on the vigorously debated definition of the "substantial noninfringing uses" standard from Sony Corp. v. Universal City Studios, Inc., affirmed the Sony doctrine without modifying it, and...

In the past two decades, business groups and their political allies have often criticized broad civil rights remedies—particularly the availability of money damages—as encouraging abusive and extortionate litigation practices. In its decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, the U.S. Supreme Court seemed to heed those arguments...

An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely held corporation plagued by intershareholder conflict. This Article argues that understanding the agency problems that can exist...

An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative...

In 1999, California enacted domestic partnership legislation for the first time. In its initial stages, registration of a domestic partnership offered few rights and no responsibilities to partners. Subsequent legislation added greater rights and responsibilities to the skeleton of the registry, culminating in the Domestic Partner Rights and Responsibilities Act of 2003, which conferred upon...

Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59...

Two primary arguments are advanced for the contemporary functional importance of federalist constraints on centralized political power. The first is captured in Justice Brandeis's famous invocation of the states as the laboratories of democracy in which "a single courageous State" may blaze new paths by trying "novel social and economic experiments." The second ties the smaller, decentralized...

At the conclusion of every class action lawsuit, a judge must hold a fairness hearing to assess the reasonableness of the outcome. The fairness hearing contains the promise of providing real monitoring of class counsel. In practice, it has not fulfilled this promise and scholars have largely, therefore, forsaken it. In this Article, William Rubenstein provides a sustained investigation of the...

Sometimes, no news is good news. In an important article, Theodore Eisenberg and Geoffrey Miller add to the emerging literature that uses empirical research to shed light on the real-world operation of class action lawsuits. The conclusions that Eisenberg and Miller draw about incentive awards to class representatives are consistent with the conclusions of their previous study of class-counsel...

In United States v. Booker, the U.S. Supreme Court held that the mandatory nature of the Federal Sentencing Guidelines violated the Sixth Amendment because they required a judge to enhance a defendant’s sentence based on facts that were neither found by a jury nor admitted by the defendant. The remedial portion of the opinion deemed the Guidelines “effectively advisory,” thereby permitting judges...