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Full-Text Articles in Law

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa Jan 2019

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa

Journal Articles

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires ...


The Theory And Practice Of Contestatory Federalism, James A. Gardner Dec 2018

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually ...


How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen May 2018

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative ...


Philosophical Inquiry And Social Practice, John Henry Schlegel Jun 2015

Philosophical Inquiry And Social Practice, John Henry Schlegel

Journal Articles

No abstract provided.


The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbot, Julia Black, Burkard Eberlain, Errol Meidinger Jan 2015

The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbot, Julia Black, Burkard Eberlain, Errol Meidinger

Journal Articles

Conflict, convergence, cooperation, competition and other interactions among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role ...


Three Globalizations: An Essay In Inquiry, John Henry Schlegel Jan 2015

Three Globalizations: An Essay In Inquiry, John Henry Schlegel

Journal Articles

No abstract provided.


Creative Engagements Indeed! Open "Disciplines," The Allure Of Others, And Intellectual Fertility, David A. Westbrook Jan 2014

Creative Engagements Indeed! Open "Disciplines," The Allure Of Others, And Intellectual Fertility, David A. Westbrook

Journal Articles

No abstract provided.


Towards Engaged Scholarship, John R. Nolon, Michelle Bryan Mudd, Michael Burger, Kim Diana Connolly, Nestor Davidson, Matthew Festa, Jill I. Gross, Lisa Heinzerling, Keith H. Hirokawa, Tim Iglesias, Patrick C. Mcginley, Sean Nolon, Uma Outka, Jessica Owley, Kalyani Robbins, Jonathan Rosenbloom, Chri Rosenbloom Jan 2013

Towards Engaged Scholarship, John R. Nolon, Michelle Bryan Mudd, Michael Burger, Kim Diana Connolly, Nestor Davidson, Matthew Festa, Jill I. Gross, Lisa Heinzerling, Keith H. Hirokawa, Tim Iglesias, Patrick C. Mcginley, Sean Nolon, Uma Outka, Jessica Owley, Kalyani Robbins, Jonathan Rosenbloom, Chri Rosenbloom

Journal Articles

No abstract provided.


Structural Overdelegation In Criminal Procedure, Anthony O'Rourke Jan 2013

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result ...


Time: An Empirical Analysis Of Law Student Time Management Deficiencies, Christine P. Bartholomew Jan 2013

Time: An Empirical Analysis Of Law Student Time Management Deficiencies, Christine P. Bartholomew

Journal Articles

This Article begins the much needed research on law students’ time famine. Time management complaints begin early in students’ legal education and generally go unresolved. As a result, practicing attorneys identify time famine as a leading cause of job dissatisfaction. To better arm graduating students, law schools must treat time as an essential component of practice-readiness. Unfortunately, most law schools ignore their students’ time management concerns, despite growing calls for greater “skills” training in legal education.

To date, legal scholarship has overlooked psychological research on time management. Yet, this research is an essential starting point to effective instruction. Rather than ...


How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey Jan 2012

How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey

Journal Articles

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality.

As part of a LatCrit XV symposium taking a “bottom-up” view of ...


How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey Jan 2012

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources ...


Together Again, John Henry Schlegel Jan 2012

Together Again, John Henry Schlegel

Journal Articles

No abstract provided.


For The Love Of The Case File, Christine P. Bartholomew Apr 2011

For The Love Of The Case File, Christine P. Bartholomew

Journal Articles

No abstract provided.


The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke Jan 2011

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number of ...


American Legal Theory And American Legal Education: A Snake Swallowing Its Tail?, John Henry Schlegel Jan 2011

American Legal Theory And American Legal Education: A Snake Swallowing Its Tail?, John Henry Schlegel

Journal Articles

No abstract provided.


Normalizing Trepidation And Anxiety, Christine P. Bartholomew, Johanna Oreskovic Jan 2010

Normalizing Trepidation And Anxiety, Christine P. Bartholomew, Johanna Oreskovic

Journal Articles

No abstract provided.


For Peter, With Love, John Henry Schlegel Jan 2009

For Peter, With Love, John Henry Schlegel

Journal Articles

No abstract provided.


Why Is It A Crime To Stomp On A Goldfish? - Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa Jan 2008

Why Is It A Crime To Stomp On A Goldfish? - Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Journal Articles

No abstract provided.


Competitive Supragovernmental Regulation: How Could It Be Democratic?, Errol E. Meidinger Jan 2008

Competitive Supragovernmental Regulation: How Could It Be Democratic?, Errol E. Meidinger

Journal Articles

This paper explores the possibility that a developing form of regulatory governance is also sketching out a new form of anticipatory regulatory democracy. 'Competitive supra-governmental regulation' is largely driven by non-state actors and is therefore commonly viewed as suffering a democracy deficit. However, because it stresses broad participation, intensive deliberative procedures, responsiveness to state law and widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance, this form of regulation appears to stand up relatively well under generally understood criteria for democratic governance. Nonetheless, a more satisfactory evaluation will require a much better understanding ...


Drawing Back From The Abyss, Or Lessons Learned From Count Von Count, John Henry Schlegel Jan 2008

Drawing Back From The Abyss, Or Lessons Learned From Count Von Count, John Henry Schlegel

Journal Articles

No abstract provided.


The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye Jan 2007

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Journal Articles

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA ...


Cls Wasn't Killed By A Question, John Henry Schlegel Jan 2007

Cls Wasn't Killed By A Question, John Henry Schlegel

Journal Articles

No abstract provided.


Behavioral Genetics Research And Criminal Dna Databanks, David H. Kaye Jan 2006

Behavioral Genetics Research And Criminal Dna Databanks, David H. Kaye

Journal Articles

This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and ...


But Pierre, If We Can't Think Normatively, What Are We To Do?, John Henry Schlegel Jan 2003

But Pierre, If We Can't Think Normatively, What Are We To Do?, John Henry Schlegel

Journal Articles

No abstract provided.


Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel Jan 2001

Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel

Journal Articles

No abstract provided.


The Voice Of Willard Hurst, Alfred S. Konefsky Jan 2000

The Voice Of Willard Hurst, Alfred S. Konefsky

Journal Articles

No abstract provided.


Langdell's Auto-Da-Fé, John Henry Schlegel Jan 1999

Langdell's Auto-Da-Fé, John Henry Schlegel

Journal Articles

No abstract provided.


Law School Rights: The Establishment Of New York Law School, 1891-1897, James A. Wooten Jan 1991

Law School Rights: The Establishment Of New York Law School, 1891-1897, James A. Wooten

Journal Articles

No abstract provided.


Better Than No Teeth At All?, John Henry Schlegel Jan 1991

Better Than No Teeth At All?, John Henry Schlegel

Journal Articles

No abstract provided.