Faculty Bibliography
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The 13th edition of this comprehensive casebook draws from its history and current debates to create a lively and rich set of materials appropriate for introductory as well as advanced courses. It contains a substantial chapter on legislative process and statutory interpretation so that the casebook can be used for an introductory legislation and regulation course as well as for administrative law classes. With one new editor (Eloise Pasachoff, Georgetown University), this latest edition makes a number of changes: Pares down existing material from the current edition and supplement, with shorter excerpts and consolidated notes throughout. Includes the latest administrative law decisions from the Supreme Court, often as lead cases, such as West Virginia v. EPA, United States v. Arthrex, Seila Law v. CFPB, FCC v. Prometheus Radio, Wooden v. United States, Concepcion v. United States, Carr v. Saul, TransUnion v. Ramirez, and more. Includes relevant new cases from the courts of appeals and district courts, addressing topics such as the constitutionality of SEC ALJ adjudications, decisionmaker bias, length of comment periods, application of Kisor v. Wilkie, Chevron waiver, and more. Replaces some teaching cases with material that is more accessible to students, including a new case for “logical outgrowth” and new materials on exceptions to notice-and-comment rulemaking. Updates transparency materials to cover the latest Supreme Court decisions on FOIA exemptions, address current events and disputes (including over the Presidential Records Act and various privileges), and show how the mandates from the 2016 FOIA Amendments have been litigated. Discusses the end of the Trump Administration and first 20 months of the Biden Administration, including firings or forced resignations of agency leaders, reversals in presidential directives and agency policies, rulemaking trends, the COVID-19 pandemic, and more. Adds new material on public administration and budgeting. Updates factual, legal, and policy materials throughout the book, with a focus on current issues and examples that appeal to students. The casebook continues to incorporate primary materials outside of judicial decisions (including statutes, administrative materials, IG and GAO reports, and proposed legislation). It also uses a wide range of secondary materials, from law review articles (classic and recent) to social science studies to think tank reports. And it considers strategic choices by agencies and challengers to agency action, not only in the courts but also in the White House and Congress. The new edition retains many of the casebook's classic cases and commentary as well as its modular approach, allowing instructors to choose the order of topics. Although there is considerable new material, the casebook's arrangement remains stable, facilitating continued use by those who have adopted the 12th edition. Adopters have access to slides, writing assignments, examination questions, and more. As occurred with the prior edition, the casebook will be updated annually through a free online supplement for students.
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Do the gendered phenomena highlighted in the preceding article by Professor Lobel amount to discrimination? In this Commentary, I argue that although these phenomena may well contribute to social inequality and deserve attention as such, on the whole, they do not constitute discrimination as it is ordinarily understood.
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The pursuit of justice is a large part of the law of contracts, but in recent years most of the discussion about contract law has emphasized other values, such as freedom or economic efficiency. "Justice"-as used, for example, in the Restatement (Second) of Contracts-has become a flabby word denoting unexamined intuitions or random contingencies. This article tries to restore justice to its proper place in contract law by providing an analytic framework for discussing its role. It sets out five principles of justice embedded in contract law: (1) Justice as the equal exchange; (2) Justice as the honest wager; (3) Justice as the term that fits; (4) Justice as the deserved return; and (5) Justice as the advantage not to be taken. Each of these "Justices" responds to a distinct social sense of justice, and each helps explain a considerable swath of the actual law of contracts. But they are not always mutually consistent, so together they define a realm of debate rather than of demonstrable outcomes. The concluding section of the article looks at the mechanisms by which that debate works to produce results, and how it fits together with other forces also shaping the law.
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Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the Patient Protection and Affordable Care Act. We call this delegation of the power to unmake major statutory provisions “big waiver.” This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime—even one it knows may be waived—big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies’ subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
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The 11th edition of this comprehensive casebook continues the tradition of offering instructors a rich theoretical, historical and political context for the cases. At the same time, recognizing changing pedagogical demand, the book offers a leaner presentation of many topics and more cues for helping students navigate the book.
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Todd D. Rakoff, Is "Freedom From Contract" Necessarily a Libertarian Freedom?, 2004 Wis. Law Rev. 477 (2004).
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More and more, however, society, and especially the workplace, have come to see time simply as a quantity whose value must be maximized. As lawmakers struggle to deal with accelerating market demands, the average citizen's ability to organize his or her time to accommodate all of life's activities is diminishing. Meanwhile, it is increasingly hard to differentiate weekdays from weekends, and ordinary days from holiday. The law of time, Rakoff argues, may need refashioning to meet modern circumstances, but we continue to need a stable legal structure of time if we are to attain the ancient goal of a balanced life: " A Time for Every Purpose.
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In this book the expansion of human right legislation in national and international law is examined from theoretical and comparative perspectives.
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Todd D. Rakoff, Contemporary Challenges Facing the First Amendment's Religion Clauses, Introduction, 43 N.Y.L. Sch. L. Rev. 101 (1999).
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Todd Rakoff, Steven Green, Martha Minow & Lawrence Sager, Contemporary Challenges Facing the First Amendment's Religion Clauses, 43 N.Y.L. Sch. L. Rev. 101 (1999).
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Part of an issue dedicated to Remembering and Advancing the Constitutional Vision of Justice William J. Brennan, Jr. Transcript of a panel discussion.
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The Bridge is divided into two major parts: a six-unit series on legal reasoning, and a series of modules on American Legal Theory, divided into six "tracks" representing important schools of thought. The series on legal reasoning should be approached in sequence. The materials on legal theory are more modular, and can be used in numerous ways.
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Todd D. Rakoff, The Tasks of Legal Education, Law Times of Korea, May 18, 1998.
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When the person-in-the-street thinks of "The Law," she (or he) tends to think of a body of standards of conduct - rules or authoritative precedents - that prohibit this and permit that. When a lawyer thinks of "The Law," however, she (or he) thinks not only of a body of standards of conduct but also of a collection of processes through which those standards are created and applied. These processes are defined in the same way as the rules governing conduct: by legislation, by rule makers acting under delegated authority, by court decisions, and sometimes by constitutions. Some of these stipulated processes consist of details - which court, among all those that have jurisdiction, is the one with proper venue for this particular case? - and some of them embrace very large issues - do the courts as a whole have power over this particular subject, or is it a matter that belongs instead to the legislature?
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What do lawyers do? In terms of process, they negotiate, litigate, advise clients, and so forth. In terms of product, they draft contracts, write briefs, compose letters, and so on. But behind both process and product, what lawyers most fundamentally do, is think.
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The development and use of contracts of adhesion represents one facet of the domination of the modern economy by business organizations. Firms create standard form contracts in part to stabilize their external market relationships, and in part to serve the needs of a hierarchical and internally segmented structure. Adherents' responses to contracts of adhesion are intelligible only within this institutional context. Each dimension of the problem will be examined in turn.
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This collection of essays brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The work discusses the requirement of good faith and its role in the formation of contracts, contractual obligations, and Breach of Contract and Remedial Issues.
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Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 Harv. C.R.-C.L. L. Rev. 63 (1994).
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Todd D. Rakoff, Social Structure, Legal Structure, and Default Rules: A Comment, 3 S. Cal. Interdisc. L.J. 19 (1993).
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Todd D. Rakoff, The Shape of the Law in the American Administrative State, 11 Tel-Aviv U. Stud. L. 9 (1992).
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