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The Vanishing Common Law Judge, Neal Devins, David Klein Sep 2019

The Vanishing Common Law Judge, Neal Devins, David Klein

Neal E. Devins

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …


Standing And Adverseness In Challenges Of Tax Exemptions For Discriminatory Public Schools, Thomas Mccoy, Neal Devins Sep 2019

Standing And Adverseness In Challenges Of Tax Exemptions For Discriminatory Public Schools, Thomas Mccoy, Neal Devins

Neal E. Devins

No abstract provided.


Space, Place, And Speech: The Expressive Topography, Timothy Zick Sep 2019

Space, Place, And Speech: The Expressive Topography, Timothy Zick

Timothy Zick

No abstract provided.


Coercion And Choice Under The Establishment Clause, Cynthia V. Ward Sep 2019

Coercion And Choice Under The Establishment Clause, Cynthia V. Ward

Cynthia V. Ward

In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …


Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern Sep 2019

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

James Y. Stern

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …


Sovereignty, Territoriality, And The Enforcement Of Foreign Judgments, George Rutherglen, James Y. Stern Sep 2019

Sovereignty, Territoriality, And The Enforcement Of Foreign Judgments, George Rutherglen, James Y. Stern

James Y. Stern

No abstract provided.


When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud Sep 2019

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Ronald H. Rosenberg

No abstract provided.


Negotiated Development Denial Meets People's Court: Del Monte Dunes Brings New Wildcards To Exactions Law, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata Sep 2019

Negotiated Development Denial Meets People's Court: Del Monte Dunes Brings New Wildcards To Exactions Law, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata

Ronald H. Rosenberg

The United States Supreme Court Answered "YES" to the $1.45 million over exaction question for 1999. In City of Monterey v. Del Monte Dunes at Monterey Ltd., a unanimous court extended the scope of compensatory takings review beyond land dedication conditions into the realm of regulatory denial. Justice Kennedy's opinion vitalized the "legitimate state interests" test from Agins v. City of Tiburon to sustain an inverse condemnation conclusion and damage award to the frustrated developer. A majority of the court also concurred that the trial court may delegate this takings conclusion to the jury under federal civil rights law. The …


What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone Sep 2019

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Linda A. Malone

No abstract provided.


Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone Sep 2019

Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone

Linda A. Malone

No abstract provided.


The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer Sep 2019

The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.


Scientific Evidence - An Introduction, Fredric I. Lederer Sep 2019

Scientific Evidence - An Introduction, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.


Some Thoughts On The Evidentiary Aspects Of Technologically Produced Or Presented Evidence, Fredric I. Lederer Sep 2019

Some Thoughts On The Evidentiary Aspects Of Technologically Produced Or Presented Evidence, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.


Journals Of The Century In Law, Christopher Byrne Sep 2019

Journals Of The Century In Law, Christopher Byrne

Christopher Byrne

In this essay I will humbly add my contribution to this vast literature by ranking the twentieth century's best law journals. I am not treading upon virgin ground. Over the past twenty years a number of scholars have ranked law reviews and journals using a variety of methodologies.


The Commons Concept: An Historical Concept With Modern Relevance, Lynda L. Butler Sep 2019

The Commons Concept: An Historical Concept With Modern Relevance, Lynda L. Butler

Lynda L. Butler

No abstract provided.


Fraud Bases Of Bulk Transferee Liability, Peter A. Alces Sep 2019

Fraud Bases Of Bulk Transferee Liability, Peter A. Alces

Peter A. Alces

No abstract provided.


The Children We Abandon: Religious Exemptions To Child Welfare And Education Law As Denials Of Equal Protection To Children Of Religious Objectors, James G. Dwyer Sep 2019

The Children We Abandon: Religious Exemptions To Child Welfare And Education Law As Denials Of Equal Protection To Children Of Religious Objectors, James G. Dwyer

James G. Dwyer

The story of children who die because their parents, in observance of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to their children for religious reasons goes far beyond these few highly publicized cases, extending into the realm of education as well as medical care. Moreover, Dr. Dwyer shows that the federal and state governments endorse this practice by statutorily exempting 'religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressing …


Parents' Religion And Children's Welfare: Debunking The Doctrine Of Parents' Rights, James G. Dwyer Sep 2019

Parents' Religion And Children's Welfare: Debunking The Doctrine Of Parents' Rights, James G. Dwyer

James G. Dwyer

The scope, weight, and assignment of parental rights have been the focus of much debate among legal commentators. These commentators generally have assumed that parents should have some rights in connection with the raising of their children. Rarely have commentators offered justifications for attributing rights to persons as parents, and when they have done so they have failed to subject those justifications to close scrutiny. This Article takes the novel approach of challenging parental rights in their entirety. The author explores the fundamental questions of what it means to say that individuals have rights as parents, and whether it is …


Family Structure, Children, And Law, Vivian E. Hamilton Sep 2019

Family Structure, Children, And Law, Vivian E. Hamilton

Vivian E. Hamilton

No abstract provided.


The Real Legal Realism, Michael S. Green Sep 2019

The Real Legal Realism, Michael S. Green

Michael S. Green

No abstract provided.


Felix Cohen On Legislation, Michael S. Green Sep 2019

Felix Cohen On Legislation, Michael S. Green

Michael S. Green

Felix Cohen's and Walter Wheeler Cook's prediction theory of law was a fundamentally positivist theory, according to which the law of a jurisdiction is reducible to regularities of official behavior. Cohen used the prediction theory to argue for philosophical anarchism - that is, the view that the existence of law does not entail a duty, even a prima facie duty, of obedience. In particular, Cohen extended philosophical anarchism to adjudication. The fact that officials in a jurisdiction regularly behave in a certain way does not give a judge adjudicating a case a moral reason to do the same. In deciding …


A Constitutional Right To Home Instruction?, Neal Devins Sep 2019

A Constitutional Right To Home Instruction?, Neal Devins

Neal E. Devins

No abstract provided.


Equine Welfare As A Mainstream Phenomenon, Bernard E. Rollin Sep 2019

Equine Welfare As A Mainstream Phenomenon, Bernard E. Rollin

Bernard Rollin, PhD

The 20th century has witnessed a bewildering array of ethical revolutions, from civil rights to environmentalism to feminism. Often ignored is the rise of massive societal concern across the world regarding animal treatment. Regulation of animal research exists in virtually all Western countries, and reform of “factory farming” is regnant in Europe and rapidly emerging in the United States. In 2012, a series of articles in The New York Times focused welfare attention squarely on the horse industry. Opponents of concern for animals often dismiss the phenomenon as rooted in emotion and extremist lack of appreciation of how unrestricted animal …


American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen Sep 2019

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Charlotte Ku

Just over ten years ago, Germans tore down a wall that divided their country and the whole of Europe. Stepping through the hole in the Berlin Wall, they took the first steps towards the reunification of West and East Germany and the end of the Cold War. Today another wall is being torn down—that between purely domestic law and international law. Companies are engaged in international trade at ever increasing rates. Environmental degradation has proved to be a global problem that cannot be solved with uncoordinated local measures. Individuals worldwide are pressing their governments for the recognition of a common …


The World Of Contract And The World Of Gift, Melvin Aron Eisenberg Aug 2019

The World Of Contract And The World Of Gift, Melvin Aron Eisenberg

Melvin A. Eisenberg

Examines the social and legal implications of the treatment of donative promise as an absolute enforceable contract in the United States. Evolution of the donative-promise doctrine; Case laws on donative promise; Moral and social significance of donative promises; Substantive bases for donative-promise principle.


The Principle Of Hadley V. Baxendale, Melvin Aron Eisenberg Aug 2019

The Principle Of Hadley V. Baxendale, Melvin Aron Eisenberg

Melvin A. Eisenberg

No abstract provided.


Expression Rules In Contract Law And Problems Of Offer And Acceptance, Melvin Aron Eisenberg Aug 2019

Expression Rules In Contract Law And Problems Of Offer And Acceptance, Melvin Aron Eisenberg

Melvin A. Eisenberg

The issue of interpretation is central to contract taw, because a major goat of that body of law is to facilitate the power of self-governing parties to further their shared objectives through contracting. Modern contract law has developed a set of general principles of interpretation that give a place to both objective and subjective elements, and must be applied on an individualized basis. However, a number of narrower black-letter rules give a purely objective and standardized interpretation to certain kinds of expressions, and these standardized interpretations may often differ from the meanings such expressions would be given under the general …


Silicon Ceilings: Information Technology Equity, The Digital Divide And The Gender Gap Among Information Technology Professionals, Andrea M. Matwyshyn Jul 2019

Silicon Ceilings: Information Technology Equity, The Digital Divide And The Gender Gap Among Information Technology Professionals, Andrea M. Matwyshyn

Andrea Matwyshyn

No abstract provided.


Pregnancy, Medicaid, State Regulation, And The Production Of Unruly Bodies, Khiara M. Bridges Jul 2019

Pregnancy, Medicaid, State Regulation, And The Production Of Unruly Bodies, Khiara M. Bridges

Khiara M Bridges

This paper represents a concretization of thoughts generated during a year and a half of anthropological fieldwork in the obstetrics clinic of a large, public hospital located on the . As a condition of receipt of Medicaid coverage of prenatal care expenses, poor, uninsured pregnant women are compelled to meet with a battery of professionalsnamely nutritionists, social workers, health educators, and financial officerswho inquire into areas of women's lives that frequently exceed the realm of the medical. This paper argues that, as a result, Medicaid mandates an intrusion into women's private lives and produces pregnancy as an opportunity for state …


Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody Jul 2019

Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody

Karen Woody

Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This Article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the Article suggests that the presence of conflict minerals in an issuer’s product is not inherently material information and that the Dodd-Frank provision statutorily renders nonmaterial information material. The provision, therefore, …