Vol. LV No. 2

Delay and Its Benefits for Judicial Rulemaking Under Scientific Uncertainty

Abstract: The Supreme Court’s increasing use of science and social science in its decision making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be responsive, but not […]

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Taxing Bankrupts

Abstract: When a debtor goes bankrupt and limited assets have to be divided between competing creditors, should unpaid taxes owed to the government be paid before the debts owed to other creditors? This Article defends the notion that some tax debts should be awarded priority. Insofar as bankruptcy protection transfers the risk of financial distress […]

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The Death of Inference

Abstract: This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferences factually implausible. They have increasingly dismissed cases under the “equal-inference rule” by finding the proffered inferences […]

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Making Do in Making Drugs: Innovation Policy and Pharmaceutical Manufacturing

Abstract: Despite increasing recalls, contamination events, and shortages, drug companies continue to rely on outdated manufacturing plants and processes. Drug manufacturing’s inefficiency and lack of innovation stand in stark contrast to drug discovery, which is the focus of a calibrated innovation policy that combines patents and FDA regulation. Pharmaceutical manufacturing lags far behind the innovative […]

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Impeachment by Unreliable Conviction

Abstract: This Article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. In admitting convictions as impeachment evidence, courts are wrongly assuming that such convictions are necessarily reliable indicators of relative culpability. Courts assume that convictions are the product of a […]

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Missing God in Some Things: The NLRB’s Jurisdictional Test Fails to Grasp the Religious Nature of Catholic Colleges and Universities

Abstract: The National Labor Relations Board (NLRB) uses a substantial religious character test to determine whether it is authorized to exercise jurisdiction over faculty labor relations at religiously affiliated colleges and universities. Under the NLRB’s test, a school is not considered religious unless it makes religious indoctrination one of its primary purposes, denies faculty members […]

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Don’t Dissolve the “Nerve Center”: A Status-Linked Citizenship Test for Principal Place of Business

Abstract: 28 U.S.C. § 1332 requires complete diversity among parties to invoke a federal court’s jurisdiction. The statute provides that a corporation is a citizen of its incorporating state and its principal place of business. In the 2010 case Hertz Corp. v. Friend, the U.S. Supreme Court adopted the “nerve center” test as the exclusive […]

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Uncharitable Hospitals: Why the IRS Needs Intermediate Sanctions to Regulate Tax-Exempt Hospitals

Abstract: Tax-exempt hospitals receive millions of dollars worth of tax breaks each year for the purpose of providing care to their communities. Despite these tax breaks, however, there is little evidence to suggest that such breaks significantly benefit the hospitals’ communities. When a hospital no longer meets the federal standard for tax exemption, the Internal […]

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