Just Undercompensation: The Idiosyncratic Premium in Eminent Domain
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By: Brian Angelo Lee
When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property’s owners receive “just compensation,” which the Supreme Court has defined as equal to ...READ MORE
Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction
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By: Zachary S. Price
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework ...READ MORE
In Defense of Big Waiver
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By: David J. Barron & Todd D. Rakoff
Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies ...READ MORE
Technological Innovation, International Competition, and the Challenges of International Income Taxation
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By: Michael J. Graetz & Rachael Doud
Because of the importance of technological innovation to economic growth, nations strive to stimulate and attract the research and development (“R&D”) that leads to that innovation and to make themselves hospitable environments for the ...READ MORE
No Exit? Withdrawal Rights and the Law of Corporate Reorganizations
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By: Douglas G. Baird & Anthony J. Casey
Bankruptcy scholarship is largely a debate about the comparative merits of a mandatory regime on one hand and bankruptcy by free design on the other. By the standard account, the current law of ...READ MORE
Perfecting Criminal Markets
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By: David Michael Jaros
From illicit drugs to human smuggling to prostitution, legislators may actually perfect the very criminal markets they seek to destroy. Criminal laws often create new dangers and new criminal opportunities. Criminalizing drugs creates opportunities to sell fake ...READ MORE
The Agency Class Action
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By: Michael D. Sant’Ambrogio & Adam S. Zimmerman
The number of claims languishing on administrative dockets has become a “crisis,” producing significant backlogs, arbitrary outcomes, and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists ...READ MORE
How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) From the Debt Ceiling Standoff
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By: Neil H. Buchanan & Michael C. Dorf
The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made ...READ MORE
Harnessing the Private Attorney General: Evidence from Qui Tam Litigation
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By: David Freeman Engstrom
What role do expertise and specialization play in regulatory regimes that deploy private litigation as an enforcement tool? This question is of enormous practical importance to the optimal design of law enforcement across a range of regulatory ...READ MORE
Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment
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Judicial Backlash or Just Backlash? Evidence from a National Experiment
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By: David Fontana & Donald Braman
When the Supreme Court decides a controversial issue, does it generate a distinctive public backlash? Or would a similar decision by Congress generate a similar reaction? Surprisingly, although these questions pervade debates over constitutional law, ...READ MORE
Unions, Corporations, and Political Opt-Out Rights After Citizens United
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By: Benjamin I. Sachs
Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in ...READ MORE
Federalism as a Safeguard of the Separation of Powers
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By: Jessica Bulman-Pozen
States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in ...READ MORE
The Indefensible Duty to Defend
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By: Neal Devins & Saikrishna Prakash
Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to ...READ MORE
The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions
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