Although agencies are the dominant force in criminal law today, existing scholarship has largely failed to analyze how these bodies perform as agencies. We know little about how the institutional design of these agencies affects their output or whether the politics of regulation are different when an agency is responsible for the regulation of criminal justice issues as opposed to traditional...
In the United States today, unmarried cohabitants have no obligations to each other unless they have contracted to assume such obligations. “Conscriptive” rules that base the obligations of cohabitants on status instead of contract have been adopted in a number of other nations, and the American Law Institute has advocated adoption of the conscriptive approach in the United States. This Article...
At a time when consumers enjoy an unprecedented level of access to the goods of their choice, why does a patchwork of state laws prevent equal access to one class of goods: alcoholic beverages? The not-so-simple answer lies in the history and application of section 2 of the Twenty-first Amendment, and in the tension between the Twenty-first Amendment and the Commerce Clause. Spearheaded by...
For bankruptcy professionals, particularly transactional attorneys, the ability to practice nationwide without the fear of breaking ethical and legal standards is surprisingly not a given. While litigators can be granted temporary pro hac vice admission, there is no equivalent safe harbor for the transactional bankruptcy attorney. Fewer than fifteen states have adopted any rule allowing for...
The prevailing test for predation under section 2 of the Sherman Act is the Areeda-Turner rule, which condemns pricing below a dominant firm's own average variable cost. This rule is both underinclusive and overinclusive, and is not generalizable to cases of nonprice predation. Alternative rules are also flawed. Those based on behavior do not address predation before the victim has been destroyed...
Contributing to a lively debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This approach breaks from the existing securities regulation framework to draw directly on insurance markets and insurance law. The author prescribes a framework to permit companies, on an...
For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be...
The Supreme Court held in Grutter v. Bollinger that the attainment of a diverse student body could justify the use of race in admissions decisions in higher education. This decision did not, however, address whether student body diversity could justify race-conscious student assignment policies at the public primary and secondary school level. Several circuit courts dodged this issue prior to...
Police misconduct is a sadly recurring phenomenon in the United States, frequently commented upon by mass media, legislators, the courts, and legal scholars. Incremental steps have been taken to remedy persistent police misconduct, most notably and recently by Congress' passage of 42 U.S.C. § 14141. Section 14141 grants the Department of Justice (DOJ) the authority to pursue relief against law...
Pro bono has undergone a profound transformation. Whereas for most of American legal history, pro bono was ad hoc and individualized, dispensed informally as professional charity, within the last twenty-five years it has become centralized and streamlined, distributed through an elaborate institutional structure by private lawyers acting out of professional duty. Pro bono has thus emerged as the...
Twenty-five years have passed since courts first adopted “market share liability,” a theory under which a plaintiff unable to identify the manufacturer of the product that caused his injury can recover on a proportional basis from each manufacturer that might have made the product. Courts have severely restricted the reach of this potentially powerful theory by insisting that it can apply only to...
A debate continues to rage in the academy and on the U.S. Supreme Court about the propriety of originalism as a methodology of constitutional interpretation. In federalism cases both the majority and the dissent on the current Court appear to have embraced originalism, yet their agreement ends there: The Court has consistently divided 5–4 in such cases. What explains the disagreement among...
In this Comment, the author considers the popular critique of the Great Case of Johnson v. M’Intosh as racist myth-making. After unpacking Johnson’s uncomfortable marriage of conquest and discovery, Seifert juxtaposes the opinion with Virgil’s Aeneid, western literature’s most famous, and famously ambivalent, establishment narrative. This comparison compels a different theoretical approach to the...
Courts have regularly relied on the “special characteristics” of radio and television broadcasts to justify government regulation of the content in those media that has never been allowed for the print media. However, the convergence of media delivery platforms (print, broadcast, telephone, cable, and Internet) has put a severe strain on the viability of this medium-centric model for speech...