By Mark A. Godsey. Full text here. Since Miranda v. Arizona was decided in 1966, scholars have devoted much attention to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda…

By Jonathan Klick & Gregory Mitchell. Full text here. Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. This Article considers how paternalistic policies fare under a dynamic account of decision making that incorporates learning and motivation effects. This approach brings…

By Kristin E. Hickman. Full text here. This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code…

By Gregory P. Magarian. Full text here. Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present War on Terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent—the expressive activity most…

By Megan Backer. Full text here. John Doe was born an orphan.  His life changed immediately when Steven Lofton adopted him.  But John has no assurance that the State will allow him to remain with his family.  Although John calls his foster father “Dad,” that will never be Steven Lofton’s legal title.  John’s foster father is…

By Peter J. Smith. Full text here. In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions.  In other words,…

By David A. Hoffman. Full text here. How and when do courts determine that corporate disclosures are actionable under the federal securities laws?  The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important.  Through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, Professor Hoffman concludes…

By Paul H. Robinson & Robert Kurzban. Full text here. The common wisdom among criminal law theorists and policy makers is that the notion of desert is vague and subject to wide disagreement. Yet the empirical evidence in available studies, including new studies reported here, paints a dramatically different picture. While moral philosophers may disagree on…

By Brandon L. Garrett. Full text here. The advent of DNA testing technology almost two decades ago transformed how courts review claims of innocence. Our system discarded rules of finality that traditionally barred most post-conviction claims of innocence. In recent years, almost every state has enacted post-conviction DNA statutes, which I survey here. Yet our criminal…

By Mary-Rose Papandrea. Full text here. The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who should be considered a reporter entitled to invoke the privilege, the continued existence of the…