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Full-Text Articles in Law

Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Celebrating Classical Rhetoric & Building Contemporary Law, Brian Larson Jun 2018

Celebrating Classical Rhetoric & Building Contemporary Law, Brian Larson

Brian Larson

Classical rhetoric and the western legal tradition were born together in the Greek city-states of the 5th century BCE. Yet little is said about Isocrates, Aristotle, Cicero, and Quintilian (for example) in contemporary law schools, and lawyers know little about the classical rhetorical foundations of their practice. Beginning in 2017, a group of two dozen scholars (mostly teachers of communication and legal theory in law schools) began a distance reading-group to examine the intersections between classical rhetorical theory and contemporary legal theory, practice, and education. This special-format session will present some of the group’s findings in the form of ...


Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham Jun 2018

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of ...


The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb Jun 2018

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were ...


Patent Transfer And The Bundle Of Rights, Andrew C. Michaels Jun 2018

Patent Transfer And The Bundle Of Rights, Andrew C. Michaels

Brooklyn Law Review

When patents subject to a license agreement are transferred, to what extent do the benefits and burdens of the license agreement run with the patent? Courts have stated that those aspects of the agreement relating to “actual use” of the patent or invention are encumbrances running with the transferred patent. But this doctrinal test is not consistently applied and is not up to the task of clearly and consistently delineating the extent to which patent license agreements run with transferred patents. Conceptualizing the patent as a bundle of Hohfeldian Rights to exclude, this article proposes a more coherent framework for ...


Foreword, Daniel B. Rodriguez Jun 2018

Foreword, Daniel B. Rodriguez

Northwestern University Law Review

No abstract provided.


Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley Jun 2018

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather ...


The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart Jun 2018

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their ...


Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania Jun 2018

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Michigan Law Review

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather ...


Forgotten Cases: Worthen V. Thomas, David F. Forte May 2018

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only after ...


Using The Master’S Tool To Dismantle His House: Derrick Bell, Herbert Wechsler, And Critical Legal Process, William Rhee May 2018

Using The Master’S Tool To Dismantle His House: Derrick Bell, Herbert Wechsler, And Critical Legal Process, William Rhee

Concordia Law Review

This Article retells the life stories of Derrick Bell, a founder of Critical Race Theory, and Herbert Wechsler, a founder of the Legal Process School, to suggest a synthesis of their often conflicting paradigms—Critical Legal Process. Critical Legal Process’s fundamental question is whether the Master’s tool, the so-called rule of law, can be considered—in the words of Wechsler’s most famous article—a genuine “neutral principle.” Can the Master’s favorite tool be repurposed to dismantle the very house it built? Can the same rule of law that was abused to build the racist Jim Crow ...


A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson May 2018

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

Faculty Scholarship

This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible ...


Bait And Switch: Taking Native Species On And Off The List Due To Invasive Species, Connie Mccarthy May 2018

Bait And Switch: Taking Native Species On And Off The List Due To Invasive Species, Connie Mccarthy

Environmental and Earth Law Journal (EELJ)

No abstract provided.


Water Is Life: The Native American Tribal Role In Protecting Natural Resources, Susan M. Larned May 2018

Water Is Life: The Native American Tribal Role In Protecting Natural Resources, Susan M. Larned

Environmental and Earth Law Journal (EELJ)

No abstract provided.


From Land Or From Air: Why A Unified Energy Resource Scheme Is Necessary When The Answer Is Both, J. Brent Marshall May 2018

From Land Or From Air: Why A Unified Energy Resource Scheme Is Necessary When The Answer Is Both, J. Brent Marshall

Environmental and Earth Law Journal (EELJ)

No abstract provided.


Rethinking "Imminent Harm" As It Relates To Asian Carp In Lake Michigan And Other Invasive Species, Philip S. Traynor May 2018

Rethinking "Imminent Harm" As It Relates To Asian Carp In Lake Michigan And Other Invasive Species, Philip S. Traynor

Environmental and Earth Law Journal (EELJ)

No abstract provided.


No More Tiers? Proportionality As An Alternative To Multiple Levels Of Scrutiny In Individual Rights Cases, Donald L. Beschle May 2018

No More Tiers? Proportionality As An Alternative To Multiple Levels Of Scrutiny In Individual Rights Cases, Donald L. Beschle

Pace Law Review

This article will explore how the explicit adoption of proportionality analysis as a single analytical tool might lead, not only to a more coherent approach to individual rights cases, but will also bring together aspects of the current multiple analytical tiers in a way that allows full consideration of both the individual rights and the social values present in these cases. Part I of this article will give a brief overview of the history of the creation and application of the various tiers of analysis used by the United States Supreme Court and explore how the once-sharp difference in those ...


Five Years Under The Veterans Judicial Review Act: The Va Is Brought Kicking And Screaming Into The World Of Meaningful Due Process, Lawrence B. Hagel, Michael P. Horan May 2018

Five Years Under The Veterans Judicial Review Act: The Va Is Brought Kicking And Screaming Into The World Of Meaningful Due Process, Lawrence B. Hagel, Michael P. Horan

Maine Law Review

I have been asked to give you the “veterans' perspective” on whether the Court of Veterans Appeals has served the purpose for which it was created by Congress and also to describe what additional steps the court might take to further the ends desired by veterans. This is no easy task. It is difficult not because I do not have a lot to say. It is difficult because it is a charge to speak, in a sense, for all veterans. In order to understand what I mean, I think it may be helpful to give you a little background on ...


The Impact Of Judicial Review On The Department Of Veterans Affairs' Claims Adjudication Process: The Changing Role Of The Board Of Veterans' Appeals, Charles L. Craigin May 2018

The Impact Of Judicial Review On The Department Of Veterans Affairs' Claims Adjudication Process: The Changing Role Of The Board Of Veterans' Appeals, Charles L. Craigin

Maine Law Review

In a March 1992 statement submitted to the Congress, the Deputy Secretary of Veterans Affairs described the impact of judicial review on the Department of Veterans Affairs (Department or VA) as “profound.” That description is still apt and applies with as much force to the Board of Veterans' Appeals (Board or BVA) as it does to the Department as a whole. Nothing has had as much impact on the Board as the Veterans' Judicial Review Act (VJRA). The VJRA established the United States Court of Veterans Appeals in 1988 and charged it with the review of decisions of the Board ...


Jurisdiction Of The United States Court Of Veterans Appeals: Searching Out The Limits, Frank Q. Nebeker May 2018

Jurisdiction Of The United States Court Of Veterans Appeals: Searching Out The Limits, Frank Q. Nebeker

Maine Law Review

I have been asked to talk to you about the United States Court of Veterans Appeals-specifically, challenges and trends in defining the scope of the court's jurisdiction. As a brand-new court, and one without any antecedent, the court began to establish precedent to deal with all aspects of its jurisdiction. In fact, it is still very much in the process of setting such precedent. For the first time, the court brought the principle of stare decisis to the veterans' community. The principle required considerable readjustment within the Department of Veterans Affairs (Department or VA). The VA's regional offices ...


Introductory Remarks, Donald N. Zillman May 2018

Introductory Remarks, Donald N. Zillman

Maine Law Review

I am very pleased to welcome this distinguished company to the University of Maine School of Law and to Portland. I thank Chairman Cragin for bringing such a distinguished group to his law school. I thank the Maine Law Review for taking the sponsor's role and for insuring that the publication of our proceedings will take our thoughts far beyond this room. My interest in military law and veterans law as participant and scholar extends over the last twenty years. And so, when Chairman Cragin broached the idea of a conference to provide the first assessment of how the ...


Prisoners Of Fate: The Challenges Of Creating Change For Children Of Incarcerated Parents, Amy B. Cyphert May 2018

Prisoners Of Fate: The Challenges Of Creating Change For Children Of Incarcerated Parents, Amy B. Cyphert

Maryland Law Review

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens—detrimental consequences that can continue even long after a parent has been released. Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them. The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory. Although some scholars ...


Cost-Benefit Analysis Outside Of Welfarism, Mark A. Geistfeld May 2018

Cost-Benefit Analysis Outside Of Welfarism, Mark A. Geistfeld

New York University Law and Economics Working Papers

Welfarism is the principle that the goodness of a social state is an increasing function of individual welfare and does not depend on anything else. As Gregory Keating convincingly argues in the lead article for this symposium, welfarism cannot account for important normative differences among different types of welfare losses or costs. Welfarism entails that all welfare losses and gains—regardless of their source—are to be rendered fungible and then compared within a cost-benefit analysis (CBA) of the welfare changes. According to Keating, liberal egalitarian principles such as equal freedom or self-determination normatively distinguish bodily injuries from harms to ...


When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner May 2018

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on ...


Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing May 2018

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems ...


Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt May 2018

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine ...


Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman May 2018

Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman

Texas A&M Law Review

Currently in Texas, standing options for third-party nonparents seeking to file suits affecting the parent-child relationship (“SAPCRs”) are extremely limited. And, even though the standing options are codified, the evidence necessary to meet the threshold elements may be drastically different depending on the case’s location. These third parties, who have previously exercised parental responsibilities, must make showings to the court that most divorced parents could not make; and this is just for a chance to bring a claim in court. While this seems unfair, and Texas should absolutely resolve the split among its appellate courts, there is one extremely ...


The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo Garcia Sanchez Apr 2018

The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo Garcia Sanchez

Guillermo J. Garcia Sanchez

The paper is a response piece to Deborah Hensler and Damira Khatam’s new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication. Their main argument regarding the public-private distinction is that the arbitral procedure has changed as a consequence of the substantive issues resolved in this particular ADR system. According to them the arbitral system, which was originally conceived for commercial purposes, has become another way of litigating public law, but without the accountability mechanisms attached to public courts. In this paper, I agree in large ...


Reclaiming A Great Judge's Legacy, Frank M. Coffin Apr 2018

Reclaiming A Great Judge's Legacy, Frank M. Coffin

Maine Law Review

In the legal profession a deep sigh of relief is heard over the land. After roughly two decades of incubation, the long-awaited biography of the great judge has arrived, Learned Hand: The Man and the Judge, by Stanford Law Professor Gerald Gunther. The book, in my opinion, is well worth the wait. Nearly 700 pages, plus a hundred more for footnotes, it nevertheless represents a heroic condensation of some 100,000 different items on file at Harvard Law School, including no fewer than 50,000 items of correspondence, 1,000 district court opinions, and nearly 3,000 circuit court opinions ...


One Of Five: Reflections On Jim Jones' Jurisprudential Impact In His Twelve Years On The Idaho Supreme Court, Hillary Smith Apr 2018

One Of Five: Reflections On Jim Jones' Jurisprudential Impact In His Twelve Years On The Idaho Supreme Court, Hillary Smith

Idaho Law Review

No abstract provided.