Constraining Criminal Laws
By F. Andrew Hessick and Carissa Byrne Hessick. Full Text. Most criminal law is statutory. Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes. Those theories say that, when…
Continue ReadingPublic Undersight
By Christina Koningisor. Full Text. The laws governing transparency and accountability in government are deeply flawed and plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set…
Continue ReadingThe Character of Jury Exclusion
By Anna Offit. Full Text. Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as…
Continue ReadingPirate Arbitration
By David Horton. Full Text. The U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has transformed the American civil justice system. In a series of controversial opinions, the Court has held that the FAA preempts state law, bars class actions, and empowers companies to delegate questions about the arbitration itself to arbitrators. For…
Continue ReadingChilling Effects and Unequal Subjects: A Response to Jonathon Penney’s Understanding Chilling Effects
By Karen Levy. Full Text. The mark of a strong theoretical argument is that it opens our minds to new empirical questions. In his generative article Understanding Chilling Effects, Jonathon Penney provides a persuasive and nuanced argument for interpreting chilling effects through the lens of social conformity, rather than self-censorship of lawful conduct. Penney’s own…
Continue ReadingSize Matters (Even If the Treasury Insists It Doesn’t): Why Small Taxpayers Should Receive a De Minimis Exemption from the GILTI Regime
By Patrick Riley Murray. Full Text. The Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of…
Continue ReadingShow Me the Money: Addressing the Oversight Gap in Private Foundation Donations to Donor-Advised Funds
By Kerry Gibbons. Full Text. Americans’ charitable giving habits are changing. Since the 1990s, a new form of charitable giving (donor-advised funds, or “DAFs”) has skyrocketed in popularity. In 2018, DAFs held at least $72 billion in charitable dollars—representing a 200% increase from four years prior. DAFs’ ascendance can be attributed to their ease of…
Continue ReadingA Moral and Legal Imperative to Act: The Bail Bond Industry, Consumer Protection, and Public Enforcers
By Brandie Burris. Full Text. Bail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access…
Continue ReadingUnderstanding Chilling Effects
By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or…
Continue ReadingPatent Law’s Deference Paradox
By Paul R. Gugliuzza. Full Text. Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no…
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