Post-American Securities Regulation

International securities regulation has arrived at the forefront of the country’s debate on financial market reform. The global economic crisis has exposed the enormous systemic risk that can arise where securities are sold across borders. Meanwhile, the Bernie Madoff and Allen Stanford frauds have illustrated the international reach of swindlers and conmen. Consequently, policymakers have […]

A Structural Vision of Habeas Corpus

For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas […]

Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the […]

Libertarian Welfarism

In a series of publications, Cass Sunstein & Richard Thaler, and Colin Camerer et al., have proposed an approach to legal policy that encourages individuals to pursue actions that will maximize their expected utility while not imposing on those individuals’ decisional autonomy. I contend that this policy approach – which has been called “libertarian paternalism” […]

Harmonization and Its Discontents: A Case Study of TRIPS Implementation in India’s Pharmaceutical Sector

In recent years, several controversial new intellectual property treaties have been adopted, most importantly the World Trade Organization’s TRIPS Agreement. Proponents argued that TRIPS would promote global trade and innovation by requiring developing countries to adopt western-style IP protection. Critics allege that the Agreement has potentially devastating implications for developing countries, particularly with regard to […]

Criminal Lying, Prosecutorial Power, and Social Meaning

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It offers a conceptual framework for violations of 18 U.S.C. § 1001 and related false statement charges by drawing distinctions between harmful deception and the typical investigative interaction and describing the range of lies that fall within the wide margins of […]

What’s Wrong with Victims’ Rights in Juvenile Court: Retributive versus Rehabilitative Systems of Justice

There has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the […]

Judging Journalism: The Turn toward Privacy and Judicial Regulation of the Press

Courts, John Marshall famously declared, must “say what the law is.” Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized […]

Courting Genocide: The Unintended Effects of Humanitarian Intervention

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting […]

Constitutional Constraints

The main ambition of “Constitutional Constraints” is to open up the subject of constitutional constraints on government officials, including Presidents and Supreme Court Justices, as a topic for discussion within the field of Constitutional Theory. The subject has so far received little comprehensive discussion in the law reviews, in part because of a division between […]