Excerpts from: Richard Squire, Strategic Liability in the Corporate Group

Richard Squire - Fordham University School of Law

When a business firm gets big enough, it reliably does two things. First, it reconfigures itself into a corporate group by dividing itself into a multitude of commonly owned subsidiaries. Previous scholarly theories of the corporate… Read More »

The Alien Tort Statute and the Law of Nations

Anthony J. Bellia, Jr. & Bradford R. Clark

Although courts and commentators have offered a wide range of theories regarding the Alien Tort Statute(ATS), the original meaning of the statute has remained elusive. As enacted in 1789, the ATS provided that “the district courts . . . shall [ ] have cognizance, concurrent with the courts of the several States, or… Read More »

The Perils of Over-Constitutionalizing the Law: A Reply to Professor Epstein

Jonathan F. Mitchell - George Mason University School of Law

The Supreme Court deems itself powerless to reverse a state supreme court solely on state-law grounds. As a result, whenever anyone asks the Supreme Court to review a state court’s ruling, the litigants and justices proceed as though the only options are to reverse on federal constitutional grounds or allow… Read More »

Tradition and Equal Protection

Kim Forde-Mazrui - University of Virginia School of Law

A central point of contention in the debate over same-sex marriage is the importance of preserving tradition. The Article on which this post is based evaluates the role of tradition as a justification for laws challenged on equal protection grounds, focusing on laws that limit marriage to opposite-sex couples. The Article… Read More »

Preventing the Misuse of Preventive Adjudication: A Response to Bray

Henry Smith - Harvard Law School

Henry E. Smith
Samuel Bray’s recent article in the University of Chicago Law Review proposes an innovative category—preventive adjudication—to capture how courts minimize the harm from legal uncertainty. In preventive adjudication, the court issues no command to the parties, applies a prospective remedy only, and applies the law to a given… Read More »

Plant Closures Cause Job Loss

David M. Driesen - Syracuse University College of Law

David M. Driesen
[This is the third post in a three-part response to Jonathan S. Masur and Eric A. Posner, Against Feasibility Analysis, 77 U Chi L Rev 657 (2010).]

Because plant closures cause job loss, any cost-benefit analysis (CBA) that counts job loss as a consequence relevant to overall well-being… Read More »

Bring on the Heavy Constitutional Artillery: A Brief Response to Professor Mitchell’s Reconsidering Murdock

Richard A. Epstein - New York University Law School

In his recent article in The University of Chicago Law Review, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, Professor Jonathan Mitchell has challenged one of the bedrock principles of federal jurisdiction. His thesis is that, in limited cases, the United States Supreme Court should take it upon itself to review certain… Read More »

How Cost-Benefit Analysis Incorporates and Worsens Feasibility Analysis’s Flaws

David M. Driesen - Syracuse University College of Law

Jonathan Masur and Eric Posner’s neglect of key normative arguments (discussed in my previous post) stems in part from a preoccupation with flaws in the agency practice of feasibility analysis. I agree with Masur and Posner’s characterization of that practice as less than wholly satisfactory and suggested as much in an… Read More »

A Modest Normative Case for Feasible Regulation

David M. Driesen - Syracuse University College of Law

In spite of Jonathan Masur and Eric Posner’s promise to unmask the normative commitments underlying feasibility analysis, their new article, Against Feasibility Analysis, fails to confront key normative arguments about the tendency of widely distributed regulatory costs to render trivial the individual impact on consumers of even high aggregate costs or… Read More »

Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance

Jonathan F. Mitchell - George Mason University School of Law

State supreme courts occasionally issue questionable interpretations of their states’ statutes, constitutional provisions, or other laws. Sometimes this reflects home-town favoritism or bias against out-of-state parties. On other occasions, state-court judges use their interpretive power over state law to combat political movements that they oppose. During the 1950s and 1960s, for… Read More »

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