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Current Print Issue

Volume 105

Articles

Chevron as Construction

Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center

Cass R. Sunstein, Robert Walmsley University Professor, Harvard University

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand…

Jul 2020

Legitimate Interpretation—Or Legitimate Adjudication

Thomas W. Merrill, Charles Evans Hughes Professor, Columbia Law School

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if…

Jul 2020

MDL as Category

Zachary D. Clopton, Professor of Law, Northwestern Pritzker School of Law

Multidistrict litigation (MDL) dominates the federal civil docket. MDL has been used to consolidate hundreds of thousands of cases, including with respect to asbestos, the BP oil spill, Johnson & Johnson baby powder, NFL concussions, opioids, and more. In recent years, MDL has attracted the attention of reformers and scholars, who have offered proposals for…

Jul 2020

Why has Antitrust Law Failed Workers?

Ioana Marinescu & Eric A. Posner

Marinescu is Assistant Professor, School of Social Policy & Practice, University of Pennsylvania, and a faculty research fellow at the National Bureau of Economic Research.

Eric Posner is the Kirkland & Ellis Distinguished Service Professor at University of Chicago

In the last several years, economists have learned about an antitrust problem of vast scope. Far from approximating the conditions of perfect competition as long assumed, most labor markets are characterized by monopsony—meaning that employers pay workers less than their productivity because workers lack a credible threat to quit and find a higherpaying job in…

Jul 2020

An Essay on the Quieting of Products Liability Law

 Aaron D. Twerski, Irwin & Jill Cohen Professor of Law, Brooklyn Law School

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter…

May 2020

The Paradoxical Impact of Scalia’s Campaign Against Legislative History

Stuart Minor Benjamin, Douglas B. Maggs Professor of Law, Duke Law School

Kristen M. Renberg, Ph.D. Candidate, Department of Political Science, Duke University & J.D. student, Duke Law School

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…

May 2020

Torts as Private Administration

Nathaniel Donahue, JD/Ph.D. candidate, Yale University, nathaniel.donahue@yale.edu

John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law, Professor of History, and Head of Davenport College, Yale University, john.witt@yale.edu

What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is…

May 2020

The Corporate Privacy Proxy

Shaakirrah R. Sanders, Professor of Law, University of Idaho College of Law. J.D., Loyola University New Orleans College of Law (2001)

 This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution—potentially creating a “right” to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights…

May 2020

Remutualization

Erik F. Gerding, Professor of Law and Wolf-Nichol Fellow, University of Colorado Law School

Lynn Stout heartily embraced heterodox economic theories for describing capital markets and a progressive zeal for reforming them. Yet when she came to formulate her policy prescriptions for financial markets, one of the most prominent progressive corporate and financial law scholars of the twentieth century could sometimes take these twin intellectual engines into surprisingly “conservative”…

Mar 2020

Cryptocommunity Currencies

J.S. Nelson, Associate Professor of Law (Business Ethics), Villanova Law School; Dept. of Management & Operations (by courtesy), Villanova School of Business 

What are cryptocurrencies: securities, commodities, or something else? Maybe they are a new form of established currency—a non-sovereign fiat currency. Like other self-governing bodies, the communities that issue cryptocurrencies should be judged on how well they support their currencies. This analysis is not meaningfully different from how we have evaluated traditional sovereign issuers of currency….

Mar 2020

Notes

Demanding Trust in the Private Genetic Data Market

Benjamin T. Van Meter

This Note argues that to prevent the most damaging consequences of the trade in genetic data, U.S. law should impose tailored fiduciary duties on private genetic testing companies to ensure that their business practices do not harm their own customers. These testing companies rely on their customers’ genetic information to turn a profit, while all of the risk of this information’s exposure or misuse falls on customers.

Jul 2020

International Cultural Heritage Law: The Link Between Cultural Nationalism, Internationalism, and the Concept of Cultural Genocide

Ashley Mullen

Part I of this Note will explain the theoretical underpinnings of what constitutes “cultural heritage,” why it deserves protection, and what obstacles stand in the way of protection. Part II will discuss the existing international legal framework aimed at protecting cultural heritage, as well as the flaws within that framework. Part III will analyze the…

Jul 2020

Closing the Racial Gap in Financial Services: Balancing Algorithmic Opportunity with Legal Limitations

 Julia F. Hollreiser

This Note will explore the potential for financial institutions to use fintech to address race-based financial inequality while also being attentive to the possibility that seemingly innocuous technologies can generate biased banking practices against minority communities. Part I of this Note will discuss the history of the inequitable distribution of wealth in the United States and race-based gaps in access to financial services and products. Part II will then identify various techniques that financial institutions have used to target minority consumers. It will discuss the legality of those techniques under existing regulations, statutes, and case law. Part III of this Note will describe the role that algorithms, big data, and artificial intelligence have come to play in credit assessment and lending decisions, focusing on the risks inherent in algorithmic decision-making and the potential for these decisions to generate racially discriminate results. Part IV will then explore the opportunity for algorithmic lending in fintech to close the racial gap in financial services while still operating within the broader legal landscape.

May 2020

Executive Privilege—With A Catch: How a Crime-Fraud Exception to Executive Privilege Would Facilitate Congressional Oversight of Executive Branch Malfeasance in Accordance with the Constitution’s Separation of Powers

Anthony W. Wassef

Part I of this Note will provide a brief history of executive privilege via an analysis of the key case law underlying the doctrine and discuss the core tenets of the privilege that dictate its use. Part II will describe the origins of Congress’s power to investigate and the current rules for overcoming executive privilege in that context. Part III will discuss how, in playing the three critical functions mentioned above, a crime-fraud exception would balance Congress’s interest in performing its oversight duties with the executive branch’s interest in confidentiality while simultaneously reducing instances of criminal or fraudulent conduct by the executive branch.

May 2020

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