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Volume 106 - Issue 3

Comment on Griffith’s Deal Insurance: The Continuing Scramble Among Professionals

In his recent article, Professor Sean Griffith observes a substantial development in the M&A market. Increasingly, buyers and sellers replace traditional deal terms with an insurance product—representation and warranty insurance (“RWI”). This essay considers how this new product and the insurance professionals who sell and underwrite it affect the traditional role of M&A lawyers. It concludes that RWI, in its present form, does not substantially encroach on the traditional role of M&A lawyers. But it also notes that representations and warranties are ripe for technological innovation and that insurance professionals may be better positioned then lawyers to seize the opportunity.

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Criminal Consequences and the Anti-Injunction Act

By Gerald S. Kerska. Full text. Abstract: The United States Supreme Court has made clear that no litigant should have to choose between asserting his legal rights and risking prosecution.  That is not so for certain challenges to Treasury regulations.  Information reporting regulations are enforced through civil penalties and criminal liability.  Because those civil penalties count…

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Why Police Should Protect Complainant Autonomy

This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. administrative agencies may employ to make more informed policy decisions. The Article does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Article identifies the causes of police complaint inefficiencies by critically assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy.

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The Chevronization of Auer

The Supreme Court is poised in Kisor v. Wilkie to reconsider the standard of review known as Auer deference, whereby courts must defer to an agency’s reasonable interpretation of its own regulation. Auer’s defenders have long argued that the standard advances important practical goals, such as simplifying the judicial task and fostering consistency and predictability in the administrative process. During the last two decades, though, courts have engrafted an increasingly complex array of qualifications and exceptions onto Auer’s basic framework. This essay argues that those qualifications and exceptions have seriously undermined the practical rationales that are sometimes cited to support Auer deference, much as the development of a similar set of qualifications and exceptions diminished the practical benefits of Auer’s better-known cousin, Chevron deference.

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Article: Aesthetic Play and Bad Intent

By Andrew Jensen Kerr Available here. Abstract: “Threatening words or images are assumed by American courts to be non-art. But this threshold question of art status is complicated by the evolution of rap and performance art. There is no articulable way to discern art from non-art for these nontextual media, a problem compounded in the…

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Essay: Preventing Sexual Harassment and Misconduct in Higher Education: How Lawyers Should Assist Universities in Fortifying Ethical Infrastructure

By Susan S. Fortney Available here. Excerpt: “In order to change the culture and climate in higher education and to improve policies and procedures, university administrators should use the analytical framework of ethical infrastructure to evaluate the organization’s formal and informal systems, as well as the climate that supports those systems. Using such a framework,…

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Essay: Les Bleus and Black: A Football Elegy to French Colorblindness

By Khaled A. Beydoun. Available here Excerpt: “The turbulent ballad that is French Football reveals that colorblindness—for French footballers of color and the millions living in France that share their race, ethnicity or religion—is contingent upon excellence. This myth is fleeting, and demystified by racial realities on the ground, including the emergent white supremacist populism rising…

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Essay: The Other Trade War

By Kathleen Claussen. Available here. Excerpt: “The trade war is on: beginning in the first half of 2018, the United States has employed half-century-old domestic law to impose tariffs on select products affecting U.S. industries, and other countries have struck back with tariffs of their own on U.S. products coming from battleground U.S. states. It is…

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