How Business Fares in the Supreme Court
By Lee Epstein, William M. Landes, & Richard A. Posner. Full text here. A number of scholars, journalists, and at least one member of Congress claim that the current Supreme Court (the “Roberts Court”) is more favorable to business than previous Supreme Courts have been. Other commentators disagree, while acknowledging that the Roberts Court is “less…
Continue ReadingNote: Warrantless Search Cases Are Really All the Same
By Will Stancil. Full text here. Fourth Amendment jurisprudence confounds. Even with thousands of cases and hundreds of repeated fact patterns to rely on, courts are not able to come up with consistent rules. In order to address the problem, this Note proposes a new way of thinking about warrantless searches. It ignores the debate over…
Continue ReadingNote: It Can Do More Than Protect Your Credit Score: Regulating Social Media
By Nathan J. Ebnet. Full text here. A growing number of employers are factoring job candidates’ social media profiles into their hiring decisions. Employers value social media pre-employment screening because it provides access to previously unobtainable applicant information. However, job candidates are wary of social media pre-employment screening due to concerns over the trustworthiness and authenticity…
Continue ReadingNote: 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…
Continue ReadingThe 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…
Continue ReadingForum 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…
Continue ReadingPatent 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…
Continue ReadingNotice-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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