Public Policy and Regulation

Public Policy and Regulation

Public Policy and Regulation

Capitol building

Research

The issue of state separation of powers generally is not one that the federal courts have had much occasion to address. Recent issues have arisen,... MORE
A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for... MORE
Violations of intimate privacy can be never ending. As long as nonconsensual pornography and deepfake sex videos remain online, privacy violations... MORE
Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to... MORE
The Supreme Court has recently signaled its interest in developing a new nondelegation test, one that would have courts more aggressively police... MORE
Land use regulation and zoning have long been core functions of local governments. Critics of local land use practices, however, assert that local... MORE
Scholars and policy makers have long debated whether corporations should serve social purposes at the expense of shareholder wealth. The SEC has... MORE
Citation counts are a common quantitative metric used by researchers and analysts to assess scholarly output. When U.S. News & World Report... MORE
This Essay explores how private landowners bargain with federal environmental regulatory authorities under two important federal environmental... MORE
The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative... MORE
Health data regulation can be thought of at two levels. First, the micro- level of regulation has to do with Electronic Health Records (EHRs). Second... MORE
Section 706 of title 5 instructs courts reviewing agency action to "hold unlawful and set aside" actions that fail the tests it sets out. Trump v.... MORE
Sometimes the judicial Constitution is not the one that matters. The administrative state is capable of creating divergent legal frameworks that... MORE
In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those... MORE
In a series of recent cases, the Supreme Court has vigorously applied the presumption against extraterritoriality to curtail the territorial reach of... MORE
Drugs often induce unintended, adverse physiological reactions in those that take them—what we commonly refer to as “side-effects.” However, drugs... MORE
The disputed scope of the President’s authority to remove subordinates in the executive branch, and to direct them in the performance of their... MORE
One of the signature rulemaking initiatives of the Obama administration was the Fiduciary Rule, which redefined the relationship between retirement... MORE
The concept of checks and balances is a core tenet of our democracy; we fear letting any single institution become overly powerful or insufficiently... MORE
In the wake of the FCC’s 2018 decision to rescind federal network neutrality rules, several states have implemented their own network neutrality... MORE
Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970).... MORE
The U.S. equity markets have undergone profound changes since the late 20th century. Electronic order books have almost entirely replaced manual... MORE
One of the most disputed policy initiatives of the Obama administration was the Department of Labor’s fiduciary rule, which subjects brokers and... MORE
With the increased politicization of agency rulemaking and the reduced cost of participating in the notice-and-comment rulemaking process,... MORE
Recent breakthroughs have moved heritable human genetic modification from the realm of science fiction to the cusp of reality, lending urgency to... MORE
In my response to reviews by Christopher Agee, Christopher Schmidt, Karen Tani, and Laura Weinrib, I explain some of the challenges of writing... MORE
Among the structural provisions of the Constitution are a series of rules specifying the method by which the federal government will be staffed.... MORE
Many popular and academic commentators identify deregulation as a cause of the 2007-08 financial crisis. Some argue that the Gramm-Leach-Bliley Act... MORE
In the fall of 1912 — while one of the most consequential presidential campaigns in United States history raged around them — William Howard Taft,... MORE
There is, without question, a public health crisis in the United States arising from both illicit and prescription opioid misuse, addiction, and... MORE
The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad... MORE
American cities are under attack. The last few years have witnessed an explosion of preemptive legislation challenging and overriding municipal... MORE
When the government enacts laws or regulations that accommodate religious believers, it may not impose significant costs on identifiable third... MORE
Actors in our criminal justice system increasingly rely on computer algorithms to help them predict how dangerous certain people and certain... MORE
In the contemporary world, the domains of laws overlap a lot. With human activity (business, family, political, creative) unfolding at a greater... MORE
This article examines the problem of legislative entrenchment through a particular focus on federal fiscal policy. The conventional academic debate... MORE
Megan Donaldson’s The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order recounts the ways in which lawyers... MORE
This article, presented at a symposium occasioned by the publication of A.J. Bellia’ and Bradford Clark’s The Law of Nations and the United States... MORE
This chapter, written for an edited volume on campaign finance, examines aggregate contribution limits and their potential to combat corruption. Base... MORE
The reliance on domestic sales law in interpreting the CISG’s provisions has been noted and condemned by commentators and some courts. Seldom... MORE
This essay makes two claims: transparency in government causes the very corruption it aims to prevent, and the problem is universal. Some scholars... MORE
This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the... MORE
The shared presidential and congressional responsibility to oversee administrative agencies creates an opportunity for productive public... MORE
Federal courts have limited the legal remedies for constitutional violations in policing to the point that they do not discourage police misconduct... MORE
Working from a sample of all consumer class actions filed in the Northern District of Illinois over the period 2010-2012 (totaling 510), this paper... MORE
It has been over forty years since the Supreme Court declared a class suspect under the Equal Protection Clause. In that time, the Court has denied... MORE
Judicial deference to executive statutory interpretation - a doctrine now commonly associated with the Supreme Court’s decision in Chevron v.... MORE
Legislatures are critical to international law governance for two related reasons. First, most are involved in several stages of treaty creation... MORE
This article sets out the case for repealing the $1 million tax cap on executive pay. The cap is easily avoided and, when not avoided, widely... MORE
This short comment on Natapoff’s “Misdemeanor Decriminalization” (2015) offers reasons for skepticism about how broadly we can expect... MORE
Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated... MORE
This symposium piece tackles an important issue in campaign finance: the relationship between coordinated expenditures and corruption. Only one... MORE
Recent years have witnessed a dramatic increase in digital information and connected devices, but constant revelations about hacks make painfully... MORE
This speech, published by the Texas Review of Law & Politics, addresses the history of the concept of judicial deference to executive statutory... MORE
This paper, prepared for a symposium on administrative law hosted by the University of Missouri School of Law, analyzes the relationship between... MORE
It’s been more than forty-four years since the National Commission on Marihuana and Drug Abuse (“the Commission”) recommended decriminalization of... MORE
What causes black infants to die at two to three times the rate of white infants and what can be done to address those causes? For decades, every... MORE
The Bush Administration took a maximalist approach to the jus ad bellum and jus in bello, staking out broad claims about what international law... MORE
The mortgage default decision is part of a complex household credit management problem. We examine how factors affecting mortgage default spill... MORE
This symposium paper challenges the Supreme Court’s most recent campaign finance decision, McCutcheon v. FEC. True to recent form, the Court in... MORE
Before the Supreme Court’s 2008 decision in District of Columbia v. Heller, the American Psychiatric Association’s position on gun policy reflected... MORE
Sincere rules mandate behavior a rule-maker wants, while insincere rules mandate different behavior. To illustrate, if a legislator wants cars to... MORE
The intimate, and often underappreciated, relationship between political parties, the presidency, and the administrative state has profound... MORE
The heart of insurance – what enables insurance to function – is risk aversion. It follows from the fact that potential policyholders are risk... MORE
Voter ID laws have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the... MORE
Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions.... MORE
Today, more than five years after Dodd-Frank was first signed into law, uncertainty surrounds many aspects of the Volcker Rule’s application and... MORE
Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve... MORE
Disclosure laws require individuals and organizations that spend money on political speech to make public their identities. The Supreme Court and... MORE
This paper explicates the four building blocks underlying emission standard guidelines in the U.S. EPA's proposed clean power plan for reducing... MORE
The presidential mandate that agency rulemakings be subjected to cost-benefit analysis and regulatory review is one of the most controversial... MORE
Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of... MORE
Building on the U.S. Supreme Court’s recent decision in Jones v. Harris Associates, this paper presents the first comprehensive empirical study of... MORE
Congress passed the Civil Rights Act of 1964 after nearly 90 years in which it enacted no major civil rights legislation. The 1964 Act stood out then... MORE
This paper identifies and analyzes a recent trend toward “clean” federal tax legislation. Existing explanations of the tax-legislative process... MORE
What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices... MORE
This encyclopedia entry provides an overview of law governing the police. As it notes, police officers are granted immense authority by the state to... MORE
President Obama’s 2011 Executive Order 13,563 on cost-benefit analysis (CBA) authorizes agencies to consider “human dignity” in identifying the costs... MORE
The enforcement of tax laws affects the distribution of tax burdens. Many tax enforcement regimes incorporate taxpayer-initiated administrative... MORE
Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve... MORE
Congress uses the income tax to achieve policy goals. States import federal tax policies into their own tax systems when they incorporate by... MORE
The Wickersham Commission report on The Third Degree, found in the Commission’s famous Report on Lawlessness in Law Enforcement ended with the... MORE
Campaign finance law is in shambles, and many believe that wealthy, shadowy interests dominate American politics. Reformers have rested their hopes... MORE
This article employs section 619 of the Dodd-Frank Act, popularly known as the Volcker rule, to examine agency level activity during the pre-proposal... MORE
Judges claim to resolve ambiguities in initiatives by identifying and giving force to “voter intent,” but scholars reject that on the ground that... MORE
Congress rarely participates in litigation about the meaning of federal law. By contrast, the executive branch joins in federal litigation on a... MORE
Prohibitions of tax discrimination have long appeared in constitutions, tax treaties, trade treaties and other sources, but despite their ubiquity... MORE
This Essay, written for a colloquium considering the effects of the recent financial crisis on local governments, asks whether bondholders or... MORE
Recent state and municipal budget crises have generated a great deal of consternation among market participants and policymakers; they have also led... MORE
This essay, to be published in the Journal of Law and Politics, describes how the debate over disclosure in campaign finance has changed and how the... MORE
With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police... MORE
This article charts a middle way in recent scholarship on the Thirteenth Amendment, which tends toward extremes. One view is that the amendment might... MORE
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and... MORE
Genetically engineered plants and animals have become a large part of the food we consume. The United States is the world’s largest producer of... MORE
Scholars and courts recognize that the federal government uses its broad spending power to enlist states in achieving federal goals, thereby... MORE
Congress regularly enacts legislation providing for redundant administrative programs. For example, there are more than 100 federal programs for... MORE
No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group “Kill a... MORE
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network... MORE
How the myriad bank regulatory agencies, including the Fed, SEC, FDIC, OCC, helped unleash the banks to create more and more destructive derivatives... MORE
Earlier this year, Toyota issued recalls on over eight million vehicles because of faulty acceleration. Assume that the National Highway Traffic... MORE
The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama... MORE
Positive political theory (PPT) explanations of the U.S. administrative state and administrative law emphasize the political incentives created by U.... MORE
This essay, a chapter in a book on international investment law and comparative public law forthcoming from Oxford University Press, reviews the... MORE
Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less... MORE
This conference addresses “obstacles to development and use of pharmacotherapies in the treatment of addiction.” I will focus on the challenges of... MORE
Governments often deliver social welfare benefits through “tax expenditures,” provisions of the tax code (such as home mortgage deductions) designed... MORE
This paper examines conflicting ballot proposals - two or more measures that run contrary to one another and that citizens vote on in the same... MORE
This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability... MORE
This Article examines local efforts to regulate mobile capital. Despite the conventional wisdom that sub-national governments cannot effectively... MORE
Solutions to many of the problems confronted by public health policymakers depend on getting people to behave in a way that promotes the common... MORE
With their focus on the originalist bona fides of the unitary executive and the modern administrative state’s numerous violations of the theory,... MORE
The European Court of Justice (ECJ) has come under increasing criticism for overstepping its institutional authority in tax cases by invalidating... MORE
Double taxation of corporate profits distorts the choice of business form, the debt and equity capitalization of companies, and the character and... MORE
Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text,... MORE
In the last four decades, characterizations of the Presidency have careened from the “imperial presidency” to the “imperiled presidency.” From an... MORE
Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial... MORE
When modern American courts assess the constitutionality of a statute, they often investigate the possibility that the enacting legislature had... MORE
Distinct and complementary procedures for adjudications and rulemaking lie at the heart of twentieth-century administrative law. Due process required... MORE
This Essay proposes a typology of presidential powers that seeks to improve how scholars discuss the substance of presidential powers. The goal is... MORE
The information revolution has made America more dependent on its electronic communications infrastructure than ever before. In additional to the... MORE
Recent Presidents have claimed a power to disregard statutes that they deem unconstitutional, prompting critics to make an array of arguments against... MORE
This article addresses the timely yet persistent question of how best to regulate access to telecommunications networks. Concerns that private firms... MORE
Scholars and politicians insist that declarations of war are relics of the past. As proof, they note that in over two centuries the United States has... MORE
Under the standard the European Court of Justice (ECJ) uses to evaluate tax discrimination cases, a Member State discriminates when it taxes cross-... MORE
In this short piece, I argue that the President has a duty to veto bills when he believes they contain provisions that are unconstitutional. He acts... MORE
Can Congress pass under one of its powers a statute that conflicts with the language of another Congressional power? This unsettled question has... MORE
Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite... MORE
Conventional wisdom supposes that the President enjoys a power to remove all presidentially appointed officers, save for judges. A corollary of this... MORE
Despite generating thousands of cases on important public issues, the single subject rule remains a source of uncertainty and inconsistency. The root... MORE
In How To Remove a Federal Judge, we argued that at the Founding, “good behavior” was a term of art referring to a generic tenure that could be... MORE
In the Constitution’s earliest days, before there were any federal judges, members of the House engaged in the young nation’s first constitutional... MORE
According to the Supreme Court's current doctrine, Congress generally may not create private causes of action against unconsenting States. It may do... MORE
The Article elucidates the Intellectual Property Clause by studying the neglected record from the Constitutional Convention of 1787 pertaining to it... MORE
This Article conducts an empirical experiment to shed light on a simply stated, but vexing, question in contract law: What is the optimal precision... MORE
This reply discusses John Harrison's insightful "Addition by Subtraction," which is a response to "Removal and Tenure in Office." The piece suggests... MORE
The rapid expansion of chain stores during the 1920s and 30s, especially the Great Atlantic and Pacific Tea Company (A&P), excited significant... MORE
This article addresses leading objections to the theory that the President enjoys a residual foreign affairs power by virtue of Article II, Section 1... MORE
This essay considers the concept of libertarian paternalism recently advanced by Sunstein and Thaler and argues that, on close inspection, this... MORE
Since Watergate, legal scholars have been prominent participants in a larger debate about the President's constitutional relationship to prosecutions... MORE
This article is a contribution to a symposium on Locke v. Davey (2004), in which the Supreme Court first confronted the question whether singling out... MORE
May Congress enact laws that instruct courts and other interpreters how to interpret future laws? Although Congress has understood its powers to... MORE
"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural... MORE
"Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism... MORE
Lawmakers often have an incentive to avoid making important policy choices, shifting responsibility for the outcomes of those choices onto other... MORE
The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John... MORE
The draft article attempts to reconstruct the essential meaning of executive power by recounting the way political theorists and others used the... MORE
A President who chooses to seek legislative approval of a treaty risks delay, textual modification, and even outright defeat. Neither the... MORE
This article argues for a comprehensive framework for the source and allocation of the foreign affairs powers of the U.S. government, based on the... MORE
Whether and how the federal securities laws should restrict insider trading is one of the most hotly debated topics in the securities law literature... MORE
The Internet's power as a communications medium has been the focus of a great deal of attention, but the Internet still lacks uniform and readily... MORE
When a government contracts with a private firm to supply a service previously supplied by the government, questions arise as to whether the private... MORE
Governing Through Intermediaries explores political representation through the lens of agency costs. In particular, it looks at the role... MORE
Title IX of the Education Amendments of 1972 generally prohibits sex discrimination by education institutions that receive federal funds. In a series... MORE
Although some have praised United States v. O'Hagan for bringing coherence and stability to the federal insider trader regime, the case actually... MORE
Using the Line Item Veto Act as a backdrop, the Article contends that the Constitution permits legislative delegations of the power to modify or... MORE
The United States Supreme Court validated the misappropriation theory in United States v. O'Hagan, but unfortunately rendered a confusing opinion... MORE
The large losses suffered by investors in financial derivatives during recent years have prompted a wave of litigation, as well as proposals from... MORE
An important administrative law doctrine developed by the lower federal courts, called remand without vacatur, rests on a mistaken premise. Courts... MORE