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Volume 66, Issue 4


Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons

Part II
by  Lisa Schultz Bressman & Abbe R. Gluck

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents’ knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial…


Evidence-Based Sentencing and the Scientific Rationalization of Discrimination

by  Sonja B. Starr

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this…


The Modernization of American Public Law

Health Care Reform and Popular Constitutionalism
by  David A. Super

The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by National Federation of Independent Business v. Sebelius, the ACA’s structural changes to public law likely will prove far more important should they become entrenched. The struggle…


Searching for Diamond in the Two-and-Twenty Rough

The Taxation of Carried Interests
by  William Gray Cochran

This Note starts from the premise that preferential capital gains treatment presupposes actual invested capital. It argues that a carried interest comprises an aggregation of income from services and income from invested capital and that each respective component should be taxed accordingly. This Note introduces the mathematical bifurcation model for disaggregating a carried interest into…