By Christopher Serkin & Michael P. Vandenbergh. Full text here. Legal change has the potential to disrupt settled expectations and property rights. The Takings Clause protects some expectations by requiring compensation for the most significant costs of changes in the law. However, threats of takings claims and related claims of unfairness in political debates can discourage…

By Gregory N. Mandel. Full text here. This Article presents an original dataset of (1) every intellectual property decision made by the Supreme Court; and (2) every intellectual property statute passed by Congress from 2002 to 2016. Analysis of the data reveals that the Court and Congress have been significantly at odds over intellectual property law…

By Steven L. Schwarcz. Full text here. Domestic and international regulatory efforts to prevent another financial crisis have been converging on the idea of trying to end the problem of too big to fail—that systemically important financial firms take excessive risks because they profit from success and are (or at least, expect to be) bailed out…

By Jonathan Remy Nash, J.B. Ruhl, & James Salzman. Full text here. How much will our budget be cut this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy. Yet very little is known about the fundamental…

By Amandeep S. Grewal. Full text here. The 2016 presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting emoluments from foreign governments, absent congressional consent. Several commentators believe that President…

By Emily Berman. Full text here. According to both courts and commentators, the Fourth Amendment regulates the government’s collection of data, but not its use. That is to say, once data is lawfully in the government’s possession, the Constitution places no limits on how it is employed. I argue that we should reject this conventional wisdom…

By Barry C. Feld. Full text here. During the 1980s and ’90s, state lawmakers shifted juvenile justice policies from a nominally offender-oriented rehabilitative system toward a more punitive and criminalized justice system. Punitive pretrial detention and delinquency dispositions had a disproportionate impact on minority youths. Notwithstanding the past two decades’ drop in serious youth crime and…

By Ellie Bastian. Full text here. Natural gas is heralded by the political right as a path to energy independence; it is heralded on the left as a bridge to cleaner energy. Fracking, a commonplace method for natural gas extraction, is not going away any time soon. Along with the boon of natural gas come potential…

By Jim Rossi. Full text here. This Article argues that carbon taxation by regulation has begun to flourish as a way of financing carbon reduction, even as a full national carbon tax remains politically elusive. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general…

By Jay P. Kesan & Carol M. Hayes. Full text here. Cybersecurity is an increasingly important element of infrastructure and commerce. Courts are starting to shape the doctrine of third-party liability for cyberattacks and data breaches. For businesses that rely on computers and the Internet, these developments affect their bottom line. There is a lot of…