Volume 71, Number 3
(April 2018)
Consenting to Adjudication Outside the Article III Courts
Apr. 18, 2018—Consenting-to-Adjudication-Outside-the-Article-III-Courts ABSTRACT Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article...
Can a Court Change the Law by Saying Nothing?
Apr. 18, 2018—Can-a-Court-Change-the-Law-by-Saying-Nothing ABSTRACT Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s...
Procedural Design
Apr. 18, 2018—Procedural-Design ABSTRACT The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the...
Private Benefits in Public Offerings: Tax Receivable Agreements in IPOs
Apr. 18, 2018—Private-Benefits-in-Public-Offerings-Tax-Receivable-Agreements-in-IPOs ABSTRACT Historically, an initial public offering (“IPO”) was a process whereby a company sold all of its underlying assets to the public. A new tax innovation, the “tax receivable agreement” (“TRA”), creates private tax benefits in public offerings by allowing pre-IPO owners to effectively keep valuable tax assets for themselves while selling the rest...
The Constitutional Case for Chevron Deference
Apr. 18, 2018—The-Constitutional-Case-for-Chevron-Deference ABSTRACT Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Essay shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An...
A Taste of Their Own Medicine: Examining the Admissibility of Experts’ Prior Malpractice Under the Federal Rules of Evidence
Apr. 18, 2018—A-Taste-of-Their-Own-Medicine ABSTRACT Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury’s decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity...
Combating the Enemy Within: Regulating Employee Misappropriation of Business Information
Apr. 18, 2018—Combating-the-Enemy-Within ABSTRACT Technological advancements vastly improve efficiency and productivity in the workplace. However, technology also brings with it the ability to transmit mass amounts of business information with ease. As technology continues to evolve and become increasingly prevalent in the modern workplace, the insider presents a considerable threat to employers. In fact, employers increasingly face...