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Volume 33 • Issue 1

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Fractional Standing

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Generations of commentators have examined (and critiqued) standing doctrine. The fiercest clash has turned on the question of “injury” — specifically, what type of grievance is sufficient to merit court consideration. Defining “injury” is no easy task, and in recent years, substantial inquiry has focused on just what harms should qualify an individual as “injured.” […]

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When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots and Sticks to Confront the Challenge of Motivational Crowding-Out

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The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives — namely, rewards or penalties […]

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The Duty for Responsible Administration and the Problem of Police Accountability

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Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When lawmakers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess […]

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Modern-Day Monitorships

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When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a “Modern-Day Monitorship.” Modern-day monitorships are utilized in an array of contexts to assist in widely varying remediation […]

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Differentiating Deference

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There is now some consensus that the context of a statutory term plays a crucial part in its meaning. The argument continues, however, over what “kinds of context . . . matter.” Building on scholarship that addresses the wide range of contexts that contribute to legal meaning, this Article illuminates two factors crucial to interpreting […]