The Dormant Commerce Clause Wins One: Five Takes on Wynne and Direct Marketing Association
October Term 2014 featured what is to date the most important state and local tax case since 1992’s Quill Corp. v. North Dakota. In Comptroller v. Wynne, the U.S. Supreme Court affirmed a state court decision holding unconstitutional Maryland’s refusal to grant a credit for taxes paid by a resident taxpayer to other states on…
Continue ReadingOutstanding Constitutional and International Law Issues Raised by the United States-Puerto Rico Relationship
This Article touches upon some issues of fundamental importance to the several million nationally disenfranchised United States citizens that reside in Puerto Rico. I write with a modicum of uneasiness as a result of the uncertain terrain on which the United States-Puerto Rico relationship presently finds itself, firstly, by reason of two cases that are pending resolution by the Supreme Court…
Continue ReadingThe Supreme Court’s Quiet Expansion of Qualified Immunity
This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified…
Continue ReadingThe Supreme Court’s Quiet Expansion of Qualified Immunity
The Optimal Scope of Physicians’ Duty to Protect Patients’ Privacy
When discussing the optimal scope of the duty to protect patients’ privacy, the literature compares two incommensurable interests: privacy and safety. Policymakers face a difficult task when trying to find an optimal solution, balancing these two, often conflicting, interests. In this article, we confront the trade-off between patient confidentiality and public safety as manifested in…
Continue ReadingPaying High for Low Performance
This Essay argues that regulatory reforms in the area of executive compensation introduced by the Dodd-Frank Act of 2010 have not yet achieved their purpose of linking executive pay with company performance. The rule on shareholder say-on-pay appears to have had limited success over the five proxy seasons since its adoption. The rule on pay…
Continue ReadingObergefell and the “New” Reproduction
Alternative reproduction has become the new frontier in the continuing culture wars over the family. Commentators with longstanding anxieties over non-traditional kinship have turned their regulatory gaze to it, as have more progressive scholars who support non-traditional family formation but nevertheless favor proposals to regulate the “new kinship” and the “new reproduction.” Excavating Obergefell v.…
Continue ReadingThe Limitations of Economic Reasoning in Analyzing Duress
My colleagues and friends, Mark Seidenfeld and Murat Mungan, have made an interesting attempt to reduce the doctrine of duress in contract law to an inquiry about “rent-seeking,” by which they mean attempts to redistribute rather than to produce wealth. There is much truth in their argument, and they are admirably sensitive to many factors that…
Continue ReadingDue Process Limits on Accomplice Liability
In a prior piece in this journal, I noted some disturbing developments in the law of accomplice liability. By definition, complicity law attaches guilt to the accomplice for the criminal acts of others. Thus, no matter how trivial the assistance or commitment, she is as guilty as the actual criminal actor. The notion of guilt for subsequent crimes…
Continue ReadingTax Credits on Federally Created Exchanges: Lessons from a Legislative Process Failure Theory of Statutory Interpretation
This Essay advocates that the question of whether, under the Affordable Care Act, individuals who purchase insurance on federally created exchanges are eligible for tax credits should be interpreted using a recently proposed method of reading statutes – the “legislative process failure theory of statutory interpretation.” Under this theory, courts should not rely on traditional judicial…
Continue Reading