Print Issue Volume 95 - No. 3

Regulation in the Behavioral Era

Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational-actor theory, but that is beginning to change. Agencies are now relying on behavioral economics to develop regulations that account for responses that depart from common sense and common wisdom, reflecting predictable cognitive anomalies. Furthermore, […]

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Special Incentives to Sue

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suits by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. […]

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Executive Compensation in the Courts: Board Capture, Optimal Contracting, and Officers’ Fiduciary Duties

Americans seem convinced that corporate executives are paid too much. So far, however, attempts to rein in executive compensation have met with little success. In the Article we propose a new approach to monitoring executive compensation, one that turns to an unlikely institution to oversee pay: the courts. Enemies of high executive compensation have generally […]

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On the Edge: Declining Marginal Utility and Tax Policy

Tax policy and scholarship generally assume that income has declining marginal utility (that is, that the next dollar is worth less to a wealthier person than to a poorer person). This assumption provides an easy justification for redistributive taxation. But the legal literature provides no firm grounding for the assumption of declining marginal utility. The […]

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Money Talks but It Isn’t Speech

The Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech, and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United […]

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Note, Legitimate Absenteeism: The Unconstitutionality of the Caucus Attendance Requirement

Dubbed by the Washington Post as “undemocratic,” the caucus system for selecting delegates to national party presidential nominating conventions tends to disenfranchise identifiable factions of voters, including deployed service members, religious observers, persons with disabilities or in poor health, students who attend school away from home, and shift workers unable to leave work during caucus […]

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Note, Rule 14a-11 and the Administrative Procedure Act: It’s Better to Have Had and Waived, than Never to Have Had at All

A dramatic sequence of events starting in the summer of 2007 caused the United States’ banking and financial systems to collapse and thrust the country into the worst financial crisis since the Great Depression. It was not just one thing, but a confluence of factors that led to the collapse and the resultant crisis. Of […]

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Note, The Cloying Use of Unallotment: Curbing Executive Branch Appropriation Reductions During Fiscal Emergencies

To ensure the perpetuation of balanced budgets, which are legal and practical requirements in forty-nine states, many state legislatures bestow upon the executive branch broad powers to reduce appropriations through unallotment statutes. The Note accentuates two dire legal inefficiencies plaguing an ample number of these laws. First, many statutes fail to discernibly limit the proper […]

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De Novo

  • The Algorithm Made Me Do It and Other Bad Excuses

    THE ALGORITHM MADE ME DO IT AND OTHER BAD EXCUSES: UPHOLDING TRADITIONAL LIABILITY PRINCIPLES FOR ALGORITHM-CAUSED HARM By: Rebecca J. Krystosek, Volume 101 Staff Member As the outputs of algorithms increasingly pervade our everyday lives—from wayfinding apps and search engine autofill results to investment advice and self-driving cars—we must also […]

  • All (Privacy) Is Not Lost

    ALL (PRIVACY) IS NOT LOST: ATTORNEYS GENERAL AND PRIVACY PROTECTION By: Mitchell Noordyke, Volume 101 Staff Member In March, the House and Senate voted to prevent portions of the FCC Privacy Rule from going into effect.[1] This rule would have required more demanding protocol from broadband internet access service and […]

  • Pot, Printz, and Preemption

    POT, PRINTZ, AND PREEMPTION: WHY STATES CAN “JUST SAY NO” TO JEFF SESSIONS AND THE CONTROLLED SUBSTANCES ACT By: Franklin R. Guenthner, Volume 101 Staff Member Attorney General Jeff Sessions is not a fan of marijuana. Before assuming his role at the Department of Justice, the former Senator from Alabama […]


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