Increasingly finding themselves in fiscal straightjackets, states have been turning to austerity measures, tax increases, privatization of services, and renegotiation of collective bargaining agreements. Absent a federal government bailout, however, states will also need debt relief if their debt burden becomes so crushing that reasonable efforts at fiscal reform will fail to avoid default. Some...
The Irony of International Business Law: U.S. Progressivism and China’s New Laissez-Faire
As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominently in federal law. But the dominant paradigm through which academics and policymakers continue to view that law—the so-called Washington Consensus—proves deeply misleading. A more accurate account of the components, origins, and...
The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry—and Why Congress Should Promote It
Newspaper executives have been struggling for the past decade to slow the sharp and unprecedented decline of their industry. While no effort has worked, one promising business model would be to charge for access to online content. But only the rarest industry leaders have felt comfortable making the move to a paid-content model without industry-wide agreement, and such an agreement would be a per...
Qualified Immunity After Pearson v. Callahan
In Pearson v. Callahan, the U.S. Supreme Court altered the contours of the qualified immunity defense with the intention of changing when and how federal courts make constitutional law. Qualified immunity is the primary defense to constitutional torts against government officials. Before Pearson, courts were required to determine if an official had violated a constitutional right even when that...
Heaven: What Sense Can It Make to Say That Something Is Absolutely Wrong?
Democratic legal systems and international human rights norms hold generally that torture can never be justified, however urgent the need. Many, but not all, thinkers about morality agree with this consensus. But the certainty breaks down in the face of catastrophic, “ticking bomb” hypotheticals, and lawyers and moralists retreat to arguments about the unreality of such hypotheticals and about...
Transcendence: Conservative Wealth and Intergenerational Succession
This Article investigates a hitherto unexplored connection between money and politics. It posits a psychological explanation for why certain extremely wealthy and powerful tycoons back ultraconservative causes and oppose social spending, even on education, though these measures would benefit the economy as a whole. Employing the concept of transcendence, it shows how wealthy parents are often...
Administrative Change
For nearly three decades, the U.S. Supreme Court has struggled with the proper treatment of administrative action that departs from agency precedent. Moving toward a stronger theoretical account of administrative change requires exploring an underappreciated feature of all administrative action: the agency’s chosen mode of reasoning. Agencies sometimes execute their regulatory mandates by...
Alternative Elements
The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of...