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Volume 68

High Value Lies, Ugly Truths, and the First Amendment

Nov. 23, 2015—High Value Lies, Ugly Truths, and the First Amendment AUTHORS Alan K. Chen William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm College of Law. Justin Marceau Animal Legal Defense Fund Professor of Law, University of Denver Sturm College of Law. The authors would like to thank Ashutosh Bhagwat, Richard...

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An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law

Nov. 23, 2015—An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law ABSTRACT Private entities often administer federal law. The early-twentieth-century Supreme Court derived constitutional limits to delegations of administrative power to private entities, grounding them in Article I of the Constitution where legislative power is delegated and in the Due Process Clause where the delegee’s...

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How Algorithmic Trading Undermines Efficiency in Capital Markets

Nov. 23, 2015—How Algorithmic Trading Undermines Efficiency in Capital Markets ABSTRACT This Article argues that the rise of algorithmic trading undermines efficient capital allocation in securities markets. It is a bedrock assumption in theory that securities prices reveal how effectively public companies utilize capital. This conventional wisdom rests on the straightforward premise that prices reflect available information...

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Curb Your Enthusiasm for Pigovian Taxes

Nov. 23, 2015—Curb Your Enthusiasm for Pigovian Taxes ABSTRACT Pigovian (or “corrective”) taxes have been proposed or enacted on dozens of harmful products and activities: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of...

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In Praise of Ex Ante Regulation

Nov. 23, 2015—In Praise of Ex Ante Regulation ABSTRACT Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only...

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A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power

Nov. 23, 2015—A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power ABSTRACT Facing mounting cost and quality pressures, healthcare providers are in a difficult position. The rigid structure of the federal anti-kickback statute compounds the problem by restricting providers’ abilities to pursue innovative business arrangements in response to those pressures. Recognizing the need for thoughtful experimentation with...

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Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas

Nov. 23, 2015—Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas ABSTRACT Since the passage of the Federal Magistrates Act in 1968, district judges with overloaded dockets have been able to delegate many of their most time-consuming duties to magistrate judges. In theory, this system allows district judges to spend...

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Overcriminalization’s New Harm Paradigm

Oct. 14, 2015—Overcriminalization’s New Harm Paradigm ABSTRACT The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject...

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Second Liens and the Leverage Option

Oct. 14, 2015—Second Liens and the Leverage Option ABSTRACT This Article demonstrates that the housing bubble was driven by second mortgages to a much greater extent than previously appreciated. A unique feature of American law allows homeowners to take out second mortgages, without the consent or even knowledge of the first mortgage lender. The result is an...

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Regulatory Exit

Oct. 14, 2015—Regulatory Exit ABSTRACT Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for...

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Empowering Shareholders, or Overburdening Companies? Analyzing the Potential Use of Instant Runoff Voting in Corporate Elections

Oct. 14, 2015—Empowering Shareholders, or Overburdening Companies? Analyzing the Potential Use of Instant Runoff Voting in Corporate Elections ABSTRACT In the corporate context, shareholder proxy access and short-slate elections of directors have been praised by proponents of shareholder rights for their ability to give minority shareholders greater say in the control of corporations. In the political world,...

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Hung Up on Words: A Conduct-Based Solution to the Problem of Conspiracy in Military Commissions

Oct. 14, 2015—Hung Up on Words: A Conduct-Based Solution to the Problem of Conspiracy in Military Commissions ABSTRACT In the wake of the 9/11 attacks, the United States established military commissions to try foreign nationals for violations of the law of war. These commissions soon came under a number of constitutional challenges, prominent among them being Ali...

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The Incompatibility of Due Process and Naked Statistical Evidence

Oct. 14, 2015—The Incompatibility of Due Process and Naked Statistical Evidence ABSTRACT Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities...

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The Supreme Court and the New Equity

May. 15, 2015—The Supreme Court and the New Equity ABSTRACT The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted...

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Misdemeanor Decriminalization

May. 15, 2015—Misdemeanor Decriminalization ABSTRACT As the United States reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jailtime for minor offenses such as marijuana possession and driving violations, replacing those crimes with so-called...

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Pricing Lives for Corporate Risk Decisions

May. 15, 2015—Pricing Lives for Corporate Risk Decisions ABSTRACT The 2014 GM ignition-switch recall highlighted the inadequacies of the company’s safety culture and the shortcomings of regulatory sanctions. The company’s inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should...

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