Prospective Grandfathering: Anticipating the Energy Transition Problem
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…
Continue ReadingNote: Inclusive Communities and Robust Causality: The Constant Struggle to Balance Access to the Courts with Protection for Defendants
By Claire Williams. Full text here. Access to housing has been a central issue throughout much of the United States’ history. Both government and private actors furthered and reinforced segregated and substandard housing for people of color. From the time of its passage, the Fair Housing Act and antidiscrimination litigation has been an important tool for…
Continue ReadingNote: Shining a Light on the Shadow-of-Trial Model: A Bridge Between Discounting and Plea Bargaining
By Lauren Clatch. Full text here. Plea bargaining is a central feature of the American criminal justice system. Traditional legal scholarship on plea bargaining, influenced by the subdiscipline of law and economics, assumes that criminal defendants simply compare the two criminal sanctions being offered—the criminal charge and sentence in the plea bargain versus the criminal charge…
Continue ReadingNote: Killing the Goose that Laid the Golden Egg: Outdated Employment Laws Are Destroying the Gig Economy
By Emily C. Atmore. Full text here. Would you rather protect employee rights or stimulate economic growth? It seems like an impossible choice. This is a dichotomy that has been debated by scholars and lawmakers throughout history. Most recently, this issue has arisen in the context of the so-called gig economy. The gig economy uniquely challenges…
Continue ReadingInstitutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress
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…
Continue ReadingToo Big To Fool: Moral Hazard, Bailouts, and Corporate Responsibility
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…
Continue ReadingThe Production Function of the Regulatory State: How Much Do Agency Budgets Matter?
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…
Continue ReadingThe Foreign Emoluments Clause and the Chief Executive
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…
Continue ReadingWhen Database Queries Are Fourth Amendment Searches
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…
Continue ReadingCompetence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts
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…
Continue Reading