Culpability and Modern Crime

Criminal law has developed to prohibit new and subtler forms of intrusion on the autonomy of others, including freedom of thought and decision. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to turn on similar concepts about autonomy, such as when reforms in the […]

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Manipulative Marketing and the First Amendment

The conventional wisdom is that the Supreme Court’s review of commercial speech restrictions has gradually become more stringent over time, edging further and further in the direction of strict scrutiny. What this narrative misses is that the Supreme Court’s review has become more rigorous over time only for a certain type of commercial speech regulation: laws that restrict nonmisleading, informational […]

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In Partial Defense of Probate: Evidence from Alameda County, California

For five decades, probate—the court-supervised administration of decedents’ estates—has been condemned as unnecessary, slow, expensive, and intrusive. This backlash has transformed succession in the United States, as probate avoidance has become a booming industry and contract-like devices such as life insurance, transfer-on-death accounts, and revocable trusts have become the primary engines of intergenerational wealth transmission. Despite […]

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Beyond Ownership: State Capitalism and the Chinese Firm

Chinese state capitalism has been treated as essentially synonymous with state-owned enterprises (SOEs). But drawing a stark distinction between SOEs and privately owned enterprises (POEs) misperceives the reality of China’s institutional environment and its impact on the formation and operation of large enterprises of all types. We challenge the “ownership bias” of prevailing analyses of Chinese firms by exploring the […]

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Don’t Try This at Home: The Troubling Distortion of Rule 68

Rule 68 of the Federal Rules of Civil Procedure was enacted to promote consensual settlement. Through a mandatory cost-shifting mechanism, the Rule incentivizes defendants to make offers to settle and plaintiffs to accept those offers. Over the last few decades, courts of appeals have begun to interpret the Rule in a way that goes beyond simply shifting costs. Instead, […]

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Final Detonation: How Customary International Law Can Trigger the End of Landmines

“Landmines are among the most barbaric weapons of war, because they continue to kill and maim innocent people long after the war itself has ended.” Landmines have been the source of suffering for not only tens of thousands of soldiers, but also thousands of civilians worldwide. They continue to lie dormant in many countries, some hidden in nearby dirt […]

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Valuing Regulatory Flexibility: A Real Options Approach to Cost–Benefit Analysis

There is increasing pressure on federal agencies to justify regulatory actions with rigorous quantitative assessments.1 The past several decades have seen a marked increase in regulatory agencies’ use of a cost–benefit analysis framework to determine whether regulations should be issued. To perform these analyses, regulators attempt to convert the expected benefits and costs of a proposed regulation into dollar figures, […]

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