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Volume 109 - Issue 6

Note: Judicial Review of SEC Rules: Managing the Costs of Cost-Benefit Analysis

By Rachel A. Benedict. Full text here. In the past seven years, the D.C. Circuit has vacated three Securities and Exchange Commission (SEC) rules for failing to conduct an adequate cost-benefit analysis. This string of cases culminated on July 11, 2011 when the D.C. Circuit overturned the SEC’s new proxy access rule. Strict judicial scrutiny of…

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The Political Economy of Climate Change Winners

By J.B. Ruhl. Full text here. Many people and businesses in the United States will receive market and nonmarket benefits from climate change as it moves forward over the next one hundred years. Speaking of climate change benefits is not for polite “green” conversation, but ignoring them—as climate policy dialogue and legal scholarship consistently have—will not…

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Forum Competition and Choice of Law Competition in Securities Law After Morrison v. National Australia Bank

By Wulf A. Kaal & Richard W. Painter. Full text here. In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court in 2010 held that U.S. securities laws apply only to securities transactions within the United States. The transactional test in Morrison could be relatively short lived because it is rooted in geography. For cases…

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Patent Law's Audience

By Mark D. Janis & Timothy R. Holbrook. Full text here. Many rules of patent law rest on a false premise about their target audience. Rules of patentability purport to provide subtle incentives to innovators. However, innovators typically encounter these rules only indirectly, through intermediaries such as lawyers, venture capitalists, managers, and others. Rules of patent…

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Notice-and-Comment Sentencing

By Richard A. Bierschbach & Stephanos Bibas. Full text here. As the real policymakers of criminal justice, prosecutors and other criminal justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend. But they make those value-laden decisions out…

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Note: Loaded Questions: A Suggested Constitutional Framework for the Right to Keep and Bear Arms

By Reid Golden. Full text here. Recent developments in the interpretation of the Second Amendment left unanswered questions regarding the scope of the constitutional guarantee of armed self-defense. Most importantly, neither District of Columbia v. Heller nor McDonald v. City of Chicago set a firm standard for determining the constitutionality of gun-control laws. This determination is…

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New Evidence on Appeal

By Jeffrey C. Dobbins. Full text here. Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.…

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