VOLUME 164, ISSUE 7 AUGUST 2016

ARTICLES

Introduction: The Bounds of Executive Discretion in the Regulatory State

CARY COGLIANESE & CHRISTOPHER YOO

What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive

The Most Knowledgeable Branch

CASS R. SUNSTEIN

In the modern era, the executive branch has extraordinary information‐gathering advantages over the legislative and judicial branches. As a result, it will often know immeasurably more than they do, both on domestic issues and on foreign affairs. In general, it also has a

Constitutional Arrogance

MICHAEL J. GERHARDT

My argument is that the presidency of the United States has the institutional disposition and capacity for constitutional arrogance—to take unilateral actions challenging its constitutional boundaries and extending its powers at other authorities’ expense. While every

Balance‐of‐Powers Arguments, the Structural Constitution, and the Problem of Executive “Underenforcement”

ERIC A. POSNER

Balance‐of‐powers arguments are ubiquitous in judicial opinions and academic articles that address separation‐of‐powers disputes over the President’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of

Legal Limits and the Implementation of the Affordable Care Act

NICHOLAS BAGLEY

Six years after its enactment and two years after the full implementation of the Affordable Care Act, now is an auspicious time to take stock. Moving past the partisan bickering, to what extent has the Obama Administration skirted the law or broken conventions to implement

Faithful Execution and Enforcement Discretion

PATRICIA L. BELLIA

This Article uses Deferred Action for Parents of Americans and Lawful Permanent Resident program (DAPA) to explore the tension between the discretion granting and discretion‐limiting features of the Faithful Execution Clause. Guidance from the courts on the scope of

Presidential Signing Statements: A New Perspective

CHRISTOPHER S. YOO

This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions

The Protean Take Care Clause

JACK GOLDSMITH & JOHN F. MANNING

In simple but delphic terms, the Take Care Clause states that the President “shall take Care that the Laws be faithfully executed.” Today, at least, no one can really know why the Framers included such language or placed it where they did. Phrased in a passive voice, the

Separation of Powers Legitimacy: An Empirical Inquiry into Norms About Executive Power

CARY COGLIANESE & KRISTIN FIRTH

The continuing debate over the President’s directive authority is but one of the many separation‐of‐powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the

The Judicial Role in Constraining Presidential Nonenforcement Discretion: The Virtues of an APA Approach

DANIEL E. WALTERS

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents

The Third Bound

ADRIAN VERMEULE

Conventions pervasively shape and constrain executive discretion and are an indispensable tool for understanding the issues discussed in the articles. Debates among legal academics over executive discretion misfire if and when the role of conventions is overlooked or

VOLUME 164, ISSUE 6 JULY 2016

ARTICLES

War Torts: Accountability for Autonomous Weapons

REBECCA CROOTOF

Unlike conventional weapons or remotely operated drones, autonomous weapon systems can independently select and engage targets. As a result, they may take actions that look like war crimes—the sinking of a cruise ship, the destruction of a village, the downing of a

Unbundled Bargains: Multi-Agreement Dealmaking in Complex Mergers and Acquisitions

CATHY HWANG

Why are some bargains memorialized in dozens of related agreements, rather than one definitive agreement? This Article uses mergers and acquisitions (M&A;) deals as a lens through which to understand why some bargains are governed by arrangements that this Article calls

Cybercrime Litigation

JONATHAN MAYER

Cybercrime is, undoubtedly, a growing problem. Scarcely a week goes by without reports of massive online misconduct. The primary federal legislative response so far has been to impose computer abuse liability on network attackers. Every state has enacted a similar statute.

COMMENTS

How to Avoid the Standing Problem in Floyd: A Relaxed Approach to Standing

WILLIAM I. STEWART

David Ourlicht, a black Manhattan man in his twenties, was stopped and frisked by New York City police officers three separate times in 2008. That same year, Ourlicht and three other black men who had similarly been stopped and frisked filed a federal lawsuit against the

Get Out of Jail Free? Preventing Employment Discrimination Against People with Criminal Records Using Ban the Box Laws

ELIZABETH P. WEISSERT

Some legal scholars have argued that Ban the Box laws are inherently ineffective in preventing employment discrimination against people with criminal records. It is true that certain provisions in many of the existing Ban the Box laws limit their efficacy. For example, many

ESSAYS

Protecting, Restoring, Improving: Incorporating Therapeutic Jurisprudence and Restorative Justice Concepts into Civil Domestic Violence Cases

PETER JOHNSEN & ELIA ROBERTSON

This Essay calls attention to various deficiencies underlying the civil protection order process. It argues that the parties in the above scenarios would have benefited from a more holistic and less adversarial approach to their disputes. Specifically, this Essay advocates

VOLUME 164, ISSUE 5 APRIL 2016

ARTICLES

Combining Constitutional Clauses

MICHAEL COENEN
Some constitutional questions implicate multiple, overlapping provisions of the Constitution’s text. In resolving these questions, the Supreme Court typically addresses each of the relevant clauses in separate and sequential fashion, taking care not to let its analysis of

A Complainant‐Oriented Approach to Unconscionability and Contract Law

NICOLAS CORNELL

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs.

The Failure of Immigration Appeals

DAVID HAUSMAN
Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. This Article uses
COMMENTS

Hitting Reset: Devising A New Video Game Copyright Regime

DREW S. DEAN
In this Comment, I argue that obtaining and sustaining optimal video game innovation and creativity requires two complementary advancements by the two main actors in the video game copyright space—the U.S. courts and the video game developers themselves. U.S. courts should

Preambles in Treaty Interpretation

MAX H. HULME
The New START Treaty debate provides a glimpse of what is a general state of uncertainty surrounding preambles, the roles they should play, and the roles they do in fact play in international law and treaty interpretation. The diverse views espoused by participants in the

VOLUME 164, ISSUE 4 MARCH 2016

ARTICLES

The Patent Spiral

ROGER ALLAN FORD

Examination—the process of reviewing a patent application and deciding whether to grant the requested patent—improves patent quality in two ways. It acts as a substantive screen, filtering out meritless applications and improving meritorious ones. It also acts as a costly

Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment

MICHAEL L. RICH

At the conceptual intersection of machine learning and government data collection lie Automated Suspicion Algorithms, or ASAs, which are created by applying machine learning methods to collections of government data with the purpose of identifying individuals likely to be

The Hidden Costs of Cliff Effects in the Internal Revenue Code

MANOJ VISWANATHAN

Cliff effects in the Internal Revenue Code trigger a sudden increase of federal tax liability when some attribute of a taxpayer—most commonly income—exceeds a particular threshold value. As a result, two taxpayers in nearly identical economic situations can face

COMMENTS

Devising an Artful Tax: An Appraisal of Payment‐in‐Kind Income Taxes in Mexico and the United Kingdom

JULIA L.M. BOGDANOVICH

Now in effect for almost sixty years, Pago en Especie allows Mexican artists to satisfy their annual income taxes by giving the government a certain number of their paintings, sculptures, drawings, photographs, or other visual works each year. Although no cash payment

When Is a Tweet Not an Admissible Tweet? Closing the Authentication Gap in the Federal Rules of Evidence

SIRI CARLSON

The proliferation of social media has naturally led to the increased use of information found on social media to resolve legal disputes. In criminal and civil cases, evidence obtained from social media helps the parties tell their stories and provides proof of disputed

VOLUME 164, ISSUE 3 FEBRUARY 2016

ARTICLES

An Economic Understanding of Search and Seizure Law

ORIN S. KERR

This Article uses economic concepts to understand search and seizure law, the law governing government investigations that is most often associated with the Fourth Amendment. It explains search and seizure law as a way to increase the efficiency of law enforcement by

How Corporate Governance Is Made: The Case of the Golden Leash

MATTHEW D. CAIN, JILL E. FISCH, SEAN J. GRIFFITH, AND STEVEN DAVIDOFF SOLOMON

This Article presents a case study of a corporate governance innovation: the incentive compensation arrangement for activist‐nominated director candidates colloquially known as the “golden leash.” Golden leash compensation arrangements are a potentially valuable tool for

The Gravitational Force of Federal Law

SCOTT DODSON

In the American system of dual sovereignty, states have primary authority over matters of state law. In nonpreemptive areas in which state and federal regimes are parallel—such as matters of court procedure, certain statutory law, and even some constitutional law—states

COMMENTS

What to Do When Main Street Is Legal Again: Regional Land Value Taxation as a New Urbanist Tool

NATHAN FARRIS

For most of the twentieth century, Americans left urban centers for suburban landscapes.

 [O]ver the last one hundred years, American land use policy [was] designed to segregate uses of land, reduce population density, and facilitate the use of automobiles . . . . [S]… 

Unconscionability as a Coherent Legal Concept

COLLEEN MCCULLOUGH

“Contracts of adhesion” are those long, complicated, boring contracts that no one reads and everyone signs. For a long time, courts enforced them just like they would a regular contract that both parties negotiated. But in the past fifteen years, courts have begun to

VOLUME 164, ISSUE 2 JANUARY 2016

ARTICLES

Do the Merits Matter? Empirical Evidence on Shareholder Suits from Options Backdating Litigation

QUINN CURTIS & MINOR MYERS

This Article examines a basic question in corporate law: Do the legal merits matter in stockholder litigation? A connection between engaging in wrongful behavior and liability in a shareholder lawsuit is essential if lawsuits are to play a role in deterring wrongful

“Ideology” or “Situation Sense”? An Experimental Investigation of Motivated Reasoning and Professional Judgment

DAN M. KAHAN, DAVID HOFFMAN, DANIELI EVANS, NEAL DEVINS, EUGENE LUCCI, AND KATHERINE CHENG

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of

Adapting Copyright for the Mashup Generation

PETER S. MENELL

Growing out of the rap and hip hop genres as well as advances in digital editing tools, music mashups have emerged as a defining genre for post‐Napster generations. Yet the uncertain contours of copyright liability as well as prohibitive transaction costs have pushed this

COMMENTS

Discriminatory Discretion: PTO Procedures and Viewpoint Discrimination under Section 2(a) of the Lanham Act

EMILY M. KUSTINA

The current standards for denying and cancelling trademarks under section 2(a) of the Lanham Act are insufficiently clear to prevent trademark examiners and administrative judges from employing viewpoint‐based discrimination against owners of marks that are perceived to be

Investor Participation in Initial Public Offerings

KYLE J. SCHWARTZ

During an initial public offering (IPO), shares of a company are sold to the public for the first time. To facilitate a typical IPO in the United States, a group of investment banks gauges demand for the IPO, determines the initial offer price for the shares, and allocates

VOLUME 164, ISSUE 1 DECEMBER 2015

ARTICLES

A National Study of Access to Counsel in Immigration Court

INGRID V. EAGLY & STEVEN SHAFER

Although immigrants have a right to be represented by counsel in immigration court, it has long been the case that the government has no obligation to provide an attorney for those who are unable to afford one. Recently, however, a broad coalition of public figures,

Toward a Pigouvian State

JONATHAN S. MASUR & ERIC A. POSNER

Most economists believe that the government should impose Pigouvian taxes on firms that produce negative externalities like pollution, yet regulatory agencies hardly ever use their authority to create Pigouvian taxes. Instead, they issue command‐and‐control regulations. Our

Antitrust in Zero-Price Markets: Foundations

JOHN M. NEWMAN

“Zero‐price markets,” wherein firms set the price of their goods or services at $0, have exploded in quantity and variety. Creative content, software, search functions, social media platforms, mobile applications, travel booking, navigation and mapping systems, and myriad

Time to Drop the Infield Fly Rule and End a Common Law Anomaly

ANDREW J. GUILFORD & JOEL MALLORD

I begin with a hypothetical. It’s the seventh game of the World Series at Wrigley Field, Mariners vs. Cubs. The Mariners lead one to zero in the bottom of the ninth, but the Cubs are threatening with no outs and the bases loaded. From the hopeful Chicago crowd there rises a

COMMENTS

The Limitations of Tradition: How Modern Choice of Law Doctrine Can Help Courts Resolve Conflicts within the New York Convention and the Federal Arbitration Act

ALEXANDER SEVAN BEDROSYAN

The difficulties faced by parties trying to enforce rights secured through international arbitration stem from the fact that countries have enacted different barriers to the enforcement of international arbitral awards. These cross‐national differences in barriers persist

Special Domestic Violence Criminal Jurisdiction for Indian Tribes: Inherent Tribal Sovereignty versus Defendants’ Complete Constitutional Rights

MARGARET H. ZHANG

Special domestic violence criminal jurisdiction for Indian tribes took effect nationally on March 7, 2015, and it was a historic moment for the tribes. Ever since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, tribes had been powerless to exercise

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