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Ghostwriting Federalism The Yale Law Journal (IF 4.986) Pub Date : 2024-04-30 Adam S. Zimmerman
Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated with federalism by encouraging accountability, deliberation, and experimentation.
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Resisting Mass Immigrant Prosecutions The Yale Law Journal (IF 4.986) Pub Date : 2024-04-30 Eric S. Fish
Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective legal strategies for immigrant defendants to resist mass criminalization.
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When the Sovereign Contracts: Troubling the Public/Private Distinction in International Law The Yale Law Journal (IF 4.986) Pub Date : 2024-04-30 Kate Yoon
The distinction between a state’s public and private acts is flimsy and unclear. Choosing to see an act as essentially private or public often obscures the other features that complicate that characterization. And selectively recognizing the private aspects of transactions has disproportionately subordinated Global South nations.
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Rationalizing the Administrative Record for Equitable Constitutional Claims The Yale Law Journal (IF 4.986) Pub Date : 2024-04-30 Braden Currey
The APA’s conventional rules stem from traditional rules of relevancy for discovery, rather than a statutory mandate. The scope of evidentiary review for constitutional claims against agencies should be determined by decision rules for a particular claim, consonant with the underlying principles of the scope of review in administrative litigation.
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Prisons as Laboratories of Antidemocracy The Yale Law Journal (IF 4.986) Pub Date : 2024-04-30 Brandon Hasbrouck
Jeffrey Bellin's Mass Incarceration Nation robustly analyzes how state and federal policies have combined to drive up prison populations. Mass incarceration represents a failure of democracy, but the repressive policies of American prisons represent an even graver threat as laboratories of antidemocracy that export these policies to the body politic.
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Real-World Prior Art Stanford Law Review (IF 5.04) Pub Date : 2024-04-30 Jonathan S. Masur & Lisa Larrimore Ouellette
Abstract not available
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Tribal Representation and Assimilative Colonialism Stanford Law Review (IF 5.04) Pub Date : 2024-04-30 Elizabeth Hidalgo Reese
Abstract not available
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Meaningful Machine Confrontation Stanford Law Review (IF 5.04) Pub Date : 2024-04-30 Benjamin Welton
Abstract not available
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Optimism in International Human Rights Law Scholarship Am. J. Int. Law (IF 2.989) Pub Date : 2024-04-29 Başak Çalı
As a field of practice, international human rights law (IHRL) is in constant motion. The four books under review explore the legal, political, and civic dynamics that continuously shape and reshape this vibrant area of law. In this Essay, I underscore two important trends in contemporary IHRL scholarship that these books highlight. First, these works share a strong emphasis on agency, understood as
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How to Get the Property Out of Privacy Law The Yale Law Journal (IF 4.986) Pub Date : 2024-04-22 Jane R. Bambauer
Privacy law emphasizes control over “your” data, but requiring consent for each data use is unprincipled, not to mention utterly impractical in the AI era. American lawmakers should reject the property model and use a framework that creates defined zones of privacy and clear safe harbors, irrespective of consent.
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ARTificial: Why Copyright Is Not the Right Policy Tool to Deal with Generative AI The Yale Law Journal (IF 4.986) Pub Date : 2024-04-22 Micaela Mantegna
This Essay critiques the inadequacy of copyright law to address the challenges Generative Artificial Intelligence (GAI) poses. By analyzing copyright law’s frictions and inconsistent treatment of technical terms, and challenging the definitions of creativity, this Essay establishes a taxonomy of individual- and society-level rationales against using copyright to regulate GAI.
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The Ethics and Challenges of Legal Personhood for AI The Yale Law Journal (IF 4.986) Pub Date : 2024-04-22 Hon. Katherine B. Forrest (Fmr.)
AI’s increasing cognitive abilities will raise challenges for judges. “Legal personhood” is a flexible and political concept that has evolved throughout American history. In determining whether to expand that concept to AI, judges will confront difficult ethical questions and will have to weigh competing claims of harm, agency, and responsibility.
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Constructing AI Speech The Yale Law Journal (IF 4.986) Pub Date : 2024-04-22 Margot E. Kaminski, Meg Leta Jones
This Essay advocates for a “legal construction of technology” approach to AI speech, challenging the notion that technology disrupts law and emphasizing how law shapes technology based on societal value. Applying the method to four different legal constructions of AI, the authors examine AI within First Amendment jurisprudence, content moderation, risk regulation, and consumer protection, highlighting
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Disentangling Leviathan on its home turf: Authority foundations, policy instruments, and the making of security Regul. Gov. (IF 3.203) Pub Date : 2024-04-23 Andreas Kruck, Moritz Weiss
Making security has been Leviathan's home turf and its prime responsibility. Yet, while security states in advanced democracies share this uniform purpose, there is vast variation in how they legitimize and how they make security policies. First, the political authority of elected policy‐makers is sometimes superseded by the epistemic authority of experts. Second, states make security, in some instances
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Bankruptcy by Another Name The Yale Law Journal (IF 4.986) Pub Date : 2024-04-16 Anthony J. Casey, Joshua C. Macey
A recent essay in this Journal critiques bankruptcy for limiting the litigation system’s ability to promote noneconomic public-policy goals. This Response argues that bankruptcy can and does further these public values, and that it is reasonably easy to tweak bankruptcy law to accommodate these goals more effectively.
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Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice The Yale Law Journal (IF 4.986) Pub Date : 2024-04-17 Daniel Cornelius, Steph Tai
This Essay examines USDA programs supported by the Inflation Reduction Act and its approach toward addressing climate change and historical funding inequities for Indigenous and Black Farmers. It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and promote climate resilience.
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The Board of Trade and the regulatory state in the long 19th century, 1815–1914 Regul. Gov. (IF 3.203) Pub Date : 2024-04-17 Perri 6, Eva Heims
How does regulatory statehood develop from the regulatory work which governments have always done? This article challenges conventional views that regulatory statehood is achieved by transition to arm's length agencies and that it replaces court-based enforcement or displaces legislatures in favor of less accountable executive power. To do so, we examine the major 19th-century surge in development
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History and Tradition’s Equality Problem The Yale Law Journal (IF 4.986) Pub Date : 2024-04-11 Cary Franklin
This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implications may extend far beyond these cases.
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Making History The Yale Law Journal (IF 4.986) Pub Date : 2024-04-11 Melissa Murray
foreword What is history but a fable agreed upon? —Napoleon Bonaparte. Introduct…
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Unraveling how intermediary-beneficiary interaction shapes policy implementation Regul. Gov. (IF 3.203) Pub Date : 2024-04-09 Cynthia L. Michel
As a result of policy growth, implementing agencies often face new mandates without the necessary capacity expansion to comply with, thus resorting to intermediaries. However, intermediaries are not innocuous to the implementation process, especially when they are expected to play the double role of target and intermediary, responsible for translating/interpreting regulation for beneficiaries. How
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What’s in a Label? Public Use and Perceptions of Labeling Alternatives in Criminology Justice Quarterly (IF 3.985) Pub Date : 2024-04-04 Megan Denver, Abby Ballou, Samuel E. DeWitt
Research indicates that crime-first language (“criminal”) increases stigma, but there is limited evidence comparing person-first language (“person with a conviction”) to other non-deviant terminolo...
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A Mixed-Methods Study of Early Intervention System Policy, Supervisory Review Practices, and Effectiveness Justice Quarterly (IF 3.985) Pub Date : 2024-04-02 Christi L. Gullion, Jason R. Ingram
Early Intervention (EI) systems are police accountability tools widely used to identify and address at-risk officers. Studies have yet to incorporate supervisory review practices into EI evaluation...
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Social Framework Testimony and Race Salience: Examining Bias Correction in the Current Context Justice Quarterly (IF 3.985) Pub Date : 2024-04-01 Evelyn Maeder, Susan Yamamoto
This juror-simulation study tested whether expert testimony about police relations with Black/Indigenous persons would mitigate potential verdict discrepancies by making race a salient issue, and w...
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Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power The Yale Law Journal (IF 4.986) Pub Date : 2024-03-31
What is the source of jurisdictional power, or the power to say what the law is and give it force in a territory? This Article examines how this fundamental attribute of sovereignty historically arose, in America, from property and property institutions-- especially the local, mundane, overlooked and bureaucratic title registry.
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Brandeisian Banking The Yale Law Journal (IF 4.986) Pub Date : 2024-04-01 Kathryn Judge
For much of the twentieth century, banking law used an array of carrots and sticks to create a banking system that was both very stable and highly decentralized. This history is key to understanding how banking law has, and could again, serve Brandeisian aims.
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Why data about people are so hard to govern Regul. Gov. (IF 3.203) Pub Date : 2024-04-01 Wendy H. Wong, Jamie Duncan, David A. Lake
How data on individuals are gathered, analyzed, and stored remains largely ungoverned at both domestic and global levels. We address the unique governance problem posed by digital data to provide a framework for understanding why data governance remains elusive. Data are easily transferable and replicable, making them a useful tool. But this characteristic creates massive governance problems for all
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Private Equity and the Corporatization of Health Care Stanford Law Review (IF 5.04) Pub Date : 2024-03-31 Erin C. Fuse Brown & Mark A. Hall
Abstract not available
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Disrupting Utility Law for Water Justice Stanford Law Review (IF 5.04) Pub Date : 2024-03-31 Sharmila L. Murthy
Abstract not available
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Tribal Trademark Law Stanford Law Review (IF 5.04) Pub Date : 2024-03-31 Anthony Hernandez
Abstract not available
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Tar Heel Constitutionalism: The New Judicial Federalism in North Carolina The Yale Law Journal (IF 4.986) Pub Date : 2024-03-29
Like many other state constitutions, the North Carolina Constitution contains unique provisions guaranteeing individual rights not present in the U.S. Constitution. This Essay explores the extent to which political and civil rights in the North Carolina Constitution have been enforced by the state supreme court in modern times.
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The “Bounds” of Moore: Pluralism and State Judicial Review The Yale Law Journal (IF 4.986) Pub Date : 2024-03-29 Leah M. Litman, Katherine Shaw
This Essay examines a potential version of the “independent state legislature theory” (ISLT) that, were it adopted, could require states to adopt particular interpretive methods for state laws regarding federal elections. That ISLT variant, however, has no basis in history, federalism, or democracy.
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Deceptive choice architecture and behavioral audits: A principles‐based approach Regul. Gov. (IF 3.203) Pub Date : 2024-03-27 Stuart Mills
Regulators are increasingly concerned about deceptive, online choice architecture, including dark patterns and behavioral sludge. From a behavioral science perspective, fostering a regulatory environment which reduces the economic harm caused by deceptive designs, while safeguarding the benefits of well‐meaning behavioral insights, is essential. This article argues for a principles‐based approach and
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Involving citizens in regulation: A comparative qualitative study of four experimentalist cases of participatory regulation in Dutch health care Regul. Gov. (IF 3.203) Pub Date : 2024-03-27 Bert de Graaff, Suzanne Rutz, Annemiek Stoopendaal, Hester van de Bovenkamp
The literature on responsive regulation argues that citizens should be involved in regulatory practices to avoid capture between regulator and regulatee. It also argues that including citizens can add an important perspective to regulatory practices. However, we know little about how citizens' perspectives are brought into regulatory practices. This paper draws on existing qualitative research to compare
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Testing Whether Protective Parenting is a Causal Mediator of Intervention Effects on Decreased Delinquency Using a Randomized Prevention Trial Justice Quarterly (IF 3.985) Pub Date : 2024-03-25 Man-Kit Lei, Steven R. H. Beach
Protective parenting practices, including parental monitoring and establishing nurturing and supportive rules, are thought to affect the risk of children’s involvement in delinquency. However, ther...
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Changing Places: The Role of Household and Community Context in Long-Term Patterns of Recidivism Justice Quarterly (IF 3.985) Pub Date : 2024-03-19 Audrey Hickert, Breanne Pleggenkuhle, Beth M. Huebner
The period of reentering society after prison is a critical time in the life-course and presents numerous challenges. With whom and where individuals live can determine aspects of social support, a...
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The Continental Shelf Beyond 200 Nautical Miles: Announcement of the U.S. Outer Limits Am. J. Int. Law (IF 2.989) Pub Date : 2024-03-21 Kevin A. Baumert
On December 19, 2023, the U.S. Department of State announced the geographic coordinates defining the outer limits of the U.S. continental shelf in areas beyond 200 nautical miles from the coast. For convenience, the United States—and also this Essay—refers to the portion of a country's continental shelf that is beyond 200 nautical miles from the coast as the “extended continental shelf,” or ECS. The
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Effects of Correctional Body-Worn Cameras on Responses to Resistance: A Randomized Controlled Trial in a Jail Setting Justice Quarterly (IF 3.985) Pub Date : 2024-03-15 Daniel S. Lawrence, Bryce E. Peterson, Michael D. White, Brittany C. Cunningham, James R. Coldren Jr
Little is known about the scope of use-of-force incidents in carceral settings, nor the impact of efforts to control it. Correctional agencies have recently begun adopting body-worn cameras (BWCs) ...
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Hayek Goes to Family Court The Yale Law Journal (IF 4.986) Pub Date : 2024-03-13 Jackson Neagli
Applying Hayek’s theory of law and liberty to contemporary American family law, this Essay concludes that family-law scholars—especially those undertaking distributional analyses—would benefit from greater attention to the Hayekian values of predictability, adaptation, and equal application.
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Facilitating Future Workforce Participation for Stay-at-Home Parents: Mitigating the Career Costs of Parenthood The Yale Law Journal (IF 4.986) Pub Date : 2024-03-13 Isabella Soparkar
Current policies help parents stay in the workforce after having children. But what about the quarter of American mothers who choose to become stay-at-home moms, then later face employment obstacles? This Essay proposes expanding worker opportunity tax credits and Title VII to help stay-at-home parents return to work when ready.
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Unofficial intermediation in the regulatory governance of hazardous chemicals Regul. Gov. (IF 3.203) Pub Date : 2024-03-11 Erik Hysing, Sabina Du Rietz Dahlström
Regulatory intermediaries—organizations that operate between regulators (public and private) and target groups—perform a range of important functions. While most previous research has focused on intermediaries that have been delegated official authority, in this paper we focus on unofficial and informal intermediary functions aiming to advance the governance of per‐ and polyfluoroalkyl substances (PFAS)
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The Insidious War Powers Status Quo The Yale Law Journal (IF 4.986) Pub Date : 2024-03-08 Rebecca Ingber
This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.
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War Powers Reform: A Skeptical View The Yale Law Journal (IF 4.986) Pub Date : 2024-03-08 Matthew C. Waxman
Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reformists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.
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European administrative networks during times of crisis: Exploring the temporal development of the internal market network SOLVIT Regul. Gov. (IF 3.203) Pub Date : 2024-03-09 Reini Schrama, Dorte Sindbjerg Martinsen, Ellen Mastenbroek
European administrative networks (EANs) are an increasingly prominent form of European Union (EU) governance. Although these networks are typically portrayed as important and flexible forms of organization, we lack knowledge of their temporal dimension, including their development in times of crisis. This paper provides a first analysis of network interaction as it unfolds before and during times of
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Abortion Pills Stanford Law Review (IF 5.04) Pub Date : 2024-02-29 David S. Cohen, Greer Donley & Rachel Rebouché
Abstract not available
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Conspiracy Jurisdiction Stanford Law Review (IF 5.04) Pub Date : 2024-02-29 Naomi Price & Jason Jarvis
Abstract not available
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(Extra)ordinary Tort Law: Evaluating the Federal Tort Claims Act as a Constitutional Remedy Stanford Law Review (IF 5.04) Pub Date : 2024-02-29 Olivia Goldberg
Abstract not available
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The Unabridged Fifteenth Amendment The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 Travis Crum
The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providing an unabridged accounting of the Fifteenth Amendment’s adoption.
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Banking and Antitrust The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 Saule T. Omarova, Graham S. Steele
This Essay seeks to recover the deeply rooted connection between U.S. banking law and antitrust. It reconceptualizes banking law as a sector-specific antimonopoly regime that imposes multiple structural constraints on publicly subsidized banks’ ability to abuse their power over the supply and allocation of financial resources in a democratic economy.
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Churching NIMBYs: Creating Affordable Housing on Church Property The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 Patrick E. Reidy, c.s.c.
Faith communities across the United States are creating affordable housing on church property. Where sincerely held religious belief inspires their efforts, faith communities can assert religious liberty protections against land-use decisions that obstruct denser, multifamily developments. Legislative reforms can help them overcome the regulatory and financial hurdles of adaptive reuse.
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“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 M. Broderick Johnson
The assumption that remedying racial inequality benefits only people of color while being costly to White people underlies many Supreme Court decisions. However, White people benefit spiritually and democratically from racial equality. Recognizing these benefits warrants a new theory of interest convergence and offers a promising path toward racial equality.
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What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice The Yale Law Journal (IF 4.986) Pub Date : 2024-02-27 Heidi Li Feldman
This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.
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An Expansive View of “Federal Financial Assistance” The Yale Law Journal (IF 4.986) Pub Date : 2024-02-26 Shariful Khan
Thanks to an ambiguity in civil-rights statutes passed under Congress’s spending power, many programs enjoy ample financial benefits while avoiding the requirements of federal antidiscrimination laws. This Essay argues that the remedy lies in a statutory reading that aligns with the expansive nature of the civil-rights statutes themselves.
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Regulation timing in the states: The role of divided government and legislative recess Regul. Gov. (IF 3.203) Pub Date : 2024-02-20 Tracey Bark, Elizabeth Bell, Ani Ter-Mkrtchyan
Bureaucratic rulemaking is a key feature of American policymaking. However, rulemaking activities do not occur uniformly, but fluctuate throughout the year. We consider three mechanisms to explain these changes in rule volume, each of which produces unique expectations for rulemaking during periods of divided government and legislative recess. To test these expectations, we leverage an original dataset
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What Are Federal Corruption Prosecutions for? The Yale Law Journal (IF 4.986) Pub Date : 2024-02-16 Lauren M. Ouziel
This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosecutors might adjust their approach.
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Demoralizing Elite Fraud The Yale Law Journal (IF 4.986) Pub Date : 2024-02-16 Zephyr Teachout
The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skepticism about anticorruption law.
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The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco The Yale Law Journal (IF 4.986) Pub Date : 2024-02-16 Ciara Torres-Spelliscy
In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to make prosecuting corrupt campaign managers arduous.
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Rules as data Regul. Gov. (IF 3.203) Pub Date : 2024-02-14 Alessia Damonte, Giulia Bazzan
Rules lie at the core of many disciplines beneath regulatory studies. Such a broad interest inevitably comes with fragmented understandings and technical choices that hinder knowledge cumulation and learning. This introduction tackles these limitations through an encompassing analytical blueprint from measurement theory. First, it addresses ambiguities to establish formal rules as a distinct research