Article

Proxy Signals: Capturing Private Information for Public Benefit

Gregory N. Mandel
This Article presents an original empirical methodology to identify which patent laws will best promote optimal incentives to innovate for society. Vociferous debates over patent reform pit the United States’ largest innovation industries against each other in a dispute concerning whether stronger or weaker patent rights are necessary to promote innovation. Past efforts to answer this question have been thwarted by an inability to parse the impossibly complex social and…
Article

License to Deal: Mandatory Approval of Complex Financial Products

Saule T. Omarova
“There is definitely going to be another financial crisis around the corner because we haven’t solved any of the things that caused the previous crisis,” said hedge fund legend Mark Mobius, speaking in Tokyo nearly a full year after the United States officially embarked upon the greatest reform of financial services regulation since the New Deal. Today, the world is still reeling from the recent financial crisis, which ravaged even…
Article

The Irrelevance of Politics for Arbitrary and Capricious Review

Mark Seidenfeld
This Article contends that, properly understood, judicial review of agency action under the reasoned decision-making standard precludes a court from considering political influence, but nonetheless allows an agency to consider it. It does so by identifying two fundamental attributes of such review, as courts have traditionally applied it, that have eluded scholarly focus and perhaps recognition altogether. The first attribute is that agency reasons, which are what courts review, are…
Note

Antibiotic Maximalism: Legislative Assaults on the Evidence-Based Treatment of Lyme Disease

Joseph B. Franklin
Antibiotics, and the deadly pathogens that have evolved to resist them, are one of the major public health concerns of our time. The introduction of penicillin in the early 1940s signaled a new era—not only for the treatment of devastating infections, but also for the out-witting of antibiotics by fast-evolving bacteria. If the middle of the twentieth century saw the era of antibiotic innovation, the past several years might be…
Commentary

To Swear or not to Swear: Using Foul Language During a Supreme Court Oral Argument

Swearing is not the first thing that comes to mind when preparing for a Supreme Court oral argument. But for lawyers arguing certain types of cases, it is something they must seriously consider. The issue comes up when a client claims his First Amendment rights were violated when the government punished him for using foul language. This doesn’t happen often because the government doesn’t usually police for the use of…
Note

The Speaker the Court Forgot: Re-Evaluating NLRA Section 8(b)(4)(B)’s Secondary Boycott Restrictions in Light of Citizens United and Sorrell

Zoran Tasić
In the staggeringly unpopularCitizens United v. Federal Election Commission decision, the Supreme Court overruled precedent and struck down a federal law that placed restrictions on campaign spending by corporations and unions. Justice Stevens, writing for the dissent, observed that “[t]he basic premise underlying the Court’s ruling is . . . the proposition that the First Amendment bars regulatory distinction based on a speaker’s identity, including its ‘identity’ as a corporation.”…