How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in common use.
There is no formal, federal reporter’s privilege against disclosing confidential information. Drawing on new historical sources, this Article shows how all three branches of government have deployed a variety of de facto protections for reporters. These conclusions enrich our understanding of whether a statutory shield is required today.
In this Review of Khiara Bridges’s book, The Poverty of Privacy Rights, Michele Goodwin and Erwin Chemerinsky argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend beyond, Bridges’s analysis.
Although commentators have criticized Dodd-Frank for not solving the problem of "too big to fail" banks, this Note identifies one promising feature of the law. As a "Pigouvian regulation," Dodd-Frank imposed compliance costs that incentivized banks to divest risky assets while providing regulators the flexibility to tailor the legal regime.
Through an analysis of two recent case studies, this Comment demonstrates how certifications—requirements that government officials personally attest to some proposition—can be effective checks on the executive branch. Using observations from political science and sociology, it also describes the conditions under which certifications can be most powerful.
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is
The Hatch-Waxman Act and the AIA balance exclusive rights of pharmaceutical patent holders with entry of generic competitors. Allergan’s recent patent transfer to the Saint Regis Mohawk Tribe threatens this balance. This Essay proposes antitrust suits to sidestep sovereign immunity and prevent companies from unduly increasing their patents’ probabilistic value.
When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. This Article proposes to import those methods into statutory interpretation.
Josh Chafetz, in Congress’s Constitution, urges Congress to rehabilitate its underused but important nonlegislative powers. In this Book Review, Anita Krishnakumar argues that while reinvigorating these powers is a good idea in theory, Congress may not have the ability or inclination to do so.
This Note discusses how the budget scorekeeping guidelines prevent the Congressional Budget Office from considering savings from program integrity and enforcement when it scores proposed legislation. The Note argues that that limitation leads Congress to irrationally underfund those activities and proposes guidelines that would be more rational, efficient, and fair.
Courts and agencies are traditionally understood to interact in two ways: judicial review and agency determinations of which cases reach federal courthouses. This Note identifies and evaluates a third dynamic by which agencies across the federal bureaucracy shape how cases proceed in court using the various tools at their disposal.
Religious-liberty and First Amendment scholars respond to Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015).
Persons of faith are now seeking religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others. We term claims of this kind, which were at issue in Burwell v. Hobby Lobby Stores,