Virtually every action depends on some conditions precedent. Law is no exception. The common law and precedent involve reliance on earlier developments, as do more particularized phenomena like slippery slopes and path dependence. In some situations, an actor undertakes permissible action Y and thereby renders its action Z legally permissible, a phenomenon I refer to as...
Opponents of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) argue that this “individual mandate” is beyond the scope of Congress’s commerce power because it regulates the “inactivity” of not purchasing health insurance. Defenders of the provision argue that it regulates the “activity” of participating in the interstate health care market...
The constitutionality of the Affordable Care Act is sometimes said to be an "easy" question, with the Act's opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won't be easy, and the arguments against it sound in law rather than politics. Written to accompany and respond to Erwin...
Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor's awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in...