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Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat
Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat
Articles
Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, …
Picturing Takings, Lee Anne Fennell
Picturing Takings, Lee Anne Fennell
Articles
Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task offinding our way through it has become more difficult, and yet more interesting, with the Supreme Court's recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Articles
No abstract provided.
Forum Choice For Terrorism Suspects, Aziz Huq
Forum Choice For Terrorism Suspects, Aziz Huq
Articles
What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …
Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley
Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley
Articles
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone.1 In the opinion, Bradford concluded that “[s]o far . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or …
The Institution Matching Canon, Aziz Huq
The Institution Matching Canon, Aziz Huq
Articles
This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the "institution matching" canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of …
When Was Judicial Self-Restraint?, Aziz Huq
When Was Judicial Self-Restraint?, Aziz Huq
Articles
This Essay responds to Judge Posner's Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …
In Praise Of Realism (And Against 'Nonsense' Jurisprudence), Brian Leiter
In Praise Of Realism (And Against 'Nonsense' Jurisprudence), Brian Leiter
Articles
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a "Chicago School of antitheoretical, no-nonsense jurisprudence." Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair then, to describe Dworkin's own theory as an instance of protheoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. …
Deference To The Executive In The United States After September 11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Deference To The Executive In The United States After September 11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Articles
No abstract provided.
Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein
Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein
Articles
No abstract provided.
Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss
Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss
Articles
No abstract provided.
Are Even Unanimous Decisions In The United States Supreme Court Ideological?, Richard A. Posner, William M. Landes, Lee Epstein
Are Even Unanimous Decisions In The United States Supreme Court Ideological?, Richard A. Posner, William M. Landes, Lee Epstein
Articles
The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological-legalistic judicial institution.
The Constitutional Conservatism Of The Warren Court, Justin Driver
The Constitutional Conservatism Of The Warren Court, Justin Driver
Articles
Scholarly debate about the Warren Court casts a long shadow over modern constitutional law. The essential contours of this debate have now grown exceedingly familiar: where liberal law professors overwhelmingly heap praise upon the Warren Court, conservatives generally heap contempt. Although some liberals have begun contending that the Warren Court overstepped the bounds of judicial propriety, such concessions do not reconfigure the debate's fundamental terms. Conspicuously absent from scholarly discourse to date, however, is a sustained liberal argument contending that the Warren Court made substantial mistakes-not by going excessively far, but by going insufficiently far in its constitutional interpretations. This …
Options For Owners And Outlaws, Lee Anne Fennell
Aggregation And Law, Ariel Porat, Eric A. Posner
Aggregation And Law, Ariel Porat, Eric A. Posner
Articles
If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and neither of them alleges misconduct sufficient to justify a remedy, the plaintiff will usually lose, even if the claims jointly allege sufficient wrongdoing to justify a remedy. Thus, as a general rule, courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the …
Public Choice And Law's Either/Or Inclination (Reviewing Leo Katz, Why The Law Is So Perverse (2011)), Saul Levmore
Public Choice And Law's Either/Or Inclination (Reviewing Leo Katz, Why The Law Is So Perverse (2011)), Saul Levmore
Articles
No abstract provided.
Can Originalism Be Saved?, David A. Strauss
Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein
Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein
Articles
No abstract provided.
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Articles
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information intensive because the migrant's "type" and the migrant's post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulating functions. American immigration law, for example, delegates extensive authority to both private entities--paradigmatically, employers and families-and to the fifty states. From the government's perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about …
Talk About Talking About Constitutional Law, Adam M. Samaha
Talk About Talking About Constitutional Law, Adam M. Samaha
Articles
Constitutional theory branches into decision theory and discourse theory. The former branch concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed, For its part, originalism initially was promoted as a method for resolving constitutional disagreement, but it has spread into discourse theory as well. Jack Balkin's "living originalism" illustrates this extension. This Article examines inclusive versions of originalism like Balkin's that permit many different answers to constitutional questions. The Article then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse …
Structural Constitutionalism As Counterterrorism, Aziz Huq
Structural Constitutionalism As Counterterrorism, Aziz Huq
Articles
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution's Separation of Powers. These "structural constitutional presumptions" serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals …
Preserving Political Speech From Ourselves And Others, Aziz Huq
Preserving Political Speech From Ourselves And Others, Aziz Huq
Articles
No abstract provided.
Recognizing Race, Justin Driver
The Romance Of Force: James Fitzjames Stephen On Criminal Law, Richard A. Posner
The Romance Of Force: James Fitzjames Stephen On Criminal Law, Richard A. Posner
Articles
No abstract provided.
Title Vii: A Shift From Sex To Relationships, Victoria Schwartz
Title Vii: A Shift From Sex To Relationships, Victoria Schwartz
Articles
No abstract provided.
The Gap In Law Between Developmental Expectations And Educational Obligations, Emily Buss
The Gap In Law Between Developmental Expectations And Educational Obligations, Emily Buss
Articles
No abstract provided.
Federalists, Federalism, And Federal Jurisdiction, Alison Lacroix
Federalists, Federalism, And Federal Jurisdiction, Alison Lacroix
Articles
No abstract provided.
Clarification Needed: Fixing The Jurisdiction Venue And Clarification Act, William Baude
Clarification Needed: Fixing The Jurisdiction Venue And Clarification Act, William Baude
Articles
No abstract provided.
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Articles
No abstract provided.
The Role Of Accreditation Commissions In Higher Education: The Troublesome Case Of Dana College, Richard A. Epstein
The Role Of Accreditation Commissions In Higher Education: The Troublesome Case Of Dana College, Richard A. Epstein
Articles
No abstract provided.