The Rediscovered Stages of Agency Adjudication

ABSTRACT Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication. Revisiting the voluminous and long-neglected research that informedContinue reading “The Rediscovered Stages of Agency Adjudication”

A Reign of Error: Property Rights and Stare Decisis

ABSTRACT Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases?Continue reading “A Reign of Error: Property Rights and Stare Decisis”

Title Insurance: Protecting Property at What Price?

ABSTRACT The real property recording system is designed to protect purchasers and mortgagees against defects in title. Navigating that system is beyond the capacity of most laymen; historically, purchasers hired lawyers and other professionals to identify and eliminate title risks. Institutional lenders, however, sought more protection than a lawyer’s opinion could provide, leading to theContinue reading “Title Insurance: Protecting Property at What Price?”

Diversity Jurisdiction and the Common-Law Scope of the Civil Action

Introduction and Summary of Argument Federal law generally grants federal district courts subject-matter jurisdiction over prescribed “civil actions.”[2] But despite the ubiquity of the term, courts and commentators have mostly ignored the crucial role it plays.[3] This Article looks at diversity jurisdiction through the lens of the civil action and argues that a commonly acceptedContinue reading “Diversity Jurisdiction and the Common-Law Scope of the Civil Action”

The Just Prosecutor

Abstract As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure—prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentenceContinue reading “The Just Prosecutor”

“Influencing” the Legislature: The Need for Legislation Targeting Online Sexual Harassment of Social Media Influencers

Introduction More than 4.5 billion people use the internet, and 3.8 billion of these users live comfortably on social media.[1] Social media’s quick, cost-effective flow of information and unlimited reach are ideal for individuals looking to, for example, reconnect with a childhood best friend with whom they have lost touch or instantaneously share opinions andContinue reading ““Influencing” the Legislature: The Need for Legislation Targeting Online Sexual Harassment of Social Media Influencers”

The Rise of the Data-Opoly: Consumer Harm in the Digital Economy

Introduction Our antitrust laws are a product of their time. Beginning in the 1870s, fundamental changes in transportation, communications, population growth, production technology, business organization, and finance culminated in rapid economic growth.[1] As the United States industrialized, it entered the “Gilded Age,”[2] characterized by rapid social upheaval and technological advancement. Between 1870 and 1890, theContinue reading “The Rise of the Data-Opoly: Consumer Harm in the Digital Economy”

Regulating Speech Online: Free Speech Values in Constitutional Frames

ABSTRACT Regulating speech online has become a key concern for lawmakers in several countries. But national and supranational regulatory efforts are being met with significant criticism, particularly in transatlantic perspective. Critiques, however, should not fall into the trap of merely relitigating old debates over the permissibility and extent of regulating speech. This Article suggests thatContinue reading “Regulating Speech Online: Free Speech Values in Constitutional Frames”