Essay

This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, coherence, and procedural fairness—which provide a framework for an account of the rule of law’s demands of administrative governance. Together these principles have intriguing results for the eval­uation of administrative...

This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promul­gating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both...

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which...

TRIAL BY PREVIEW

Bert I. Huang*

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of...

According to an influential view in corporate law writings and debates, pressure from shareholders leads companies to take myopic actions that are costly in the long term, and insulating boards from such pressure serves the long-term interests of companies as well as their shareholders. This board insulation claim has been regularly invoked in a wide range of contexts to support existing or tighter limits on shareholder rights and involvement....

LEGAL DIVERSIFICATION

Kelli A. Alces*

The greatest protection investors have from the risks associated with capital investment is diversification. This Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that are governed by a variety of legal rules. Legal diversification protects investors from the risk that a particular method of minimizing agency costs will prove...

COPYRIGHT INFRINGEMENT MARKETS

Shyamkrishna Balganesh*

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement—which copyright law grants authors in order to render its exclusive rights operational—has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright...

Since it was decided in 2003, Lawrence v. Texas has under­written the effort to expand access to marriage to same-sex couples. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage—same-sex or otherwise. Instead, Lawrence was a case about criminal sex and more specifically about limiting the state’s authority to regulate and...

OF PROPERTY AND INFORMATION

Abraham Bell* and Gideon Parchomovsky**

The property–information interface is perhaps the most crucial and undertheorized dimension of property law. Information about pro­perty can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Con­versely, a dearth of information can significantly reduce the benefits associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage...

This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.

Existing debates are either conceptual or normative: They focus ei­ther on the nature of interpretation and authority, or on originalism’s abil­ity to serve other values, like predictability, democracy, or general wel­fare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what...