Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

PDF

2006

Journal Articles

Articles 1 - 30 of 160

Full-Text Articles in Law

Civil Liberties V. National Security In The Law's Open Areas, Geoffrey R. Stone Dec 2006

Civil Liberties V. National Security In The Law's Open Areas, Geoffrey R. Stone

Journal Articles

No abstract provided.


'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz Nov 2006

'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz

Journal Articles

This is an Article about using reputation-tracking technologies to displace criminal law enforcement and improve the tort system. The Article contains an extended application of this idea to the regulation of motorist behavior and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter uncooperative behavior. The Article proposes a compulsory "How's My Driving?" program for all motor vehicles. Although more rigorous study is warranted, the initial data from voluntary "How's My Driving?" programs is quite promising, suggesting that the use of "How's My Driving?" placards ...


Gendering The Gentrification Of Public Housing: Hope Vi's Disparate Impact On Lowest-Income African American Women, Danielle Pelfrey Duryea Oct 2006

Gendering The Gentrification Of Public Housing: Hope Vi's Disparate Impact On Lowest-Income African American Women, Danielle Pelfrey Duryea

Journal Articles

No abstract provided.


Cali Lessons In Legal Research Courses: Alternatives To Reading About Research, Elizabeth G. Adelman Oct 2006

Cali Lessons In Legal Research Courses: Alternatives To Reading About Research, Elizabeth G. Adelman

Journal Articles

No abstract provided.


The Law Of Other States, Eric A. Posner, Cass R. Sunstein Oct 2006

The Law Of Other States, Eric A. Posner, Cass R. Sunstein

Journal Articles

The question of whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread belief accepted by a number of independent actors, is highly likely to be correct. It follows that if a large majority ...


Information Asymmetries And The Rights To Exclude, Lior Strahilevitz Aug 2006

Information Asymmetries And The Rights To Exclude, Lior Strahilevitz

Journal Articles

No abstract provided.


Theorizing The Diffusion Of Law: Conceptual Difficulties, Unstable Imaginations, And The Effort To Think Gracefully Nonetheless, David A. Westbrook Jul 2006

Theorizing The Diffusion Of Law: Conceptual Difficulties, Unstable Imaginations, And The Effort To Think Gracefully Nonetheless, David A. Westbrook

Journal Articles

No abstract provided.


The Law Of Implicit Bias, Cass R. Sunstein, Christine Jolls Jul 2006

The Law Of Implicit Bias, Cass R. Sunstein, Christine Jolls

Journal Articles

Considerable attention has been given to the Implicit Association Test (IA T), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of "debiasing ...


My God, My Choice: The Mature Minor Doctrine And Adolescent Refusal Of Life-Saving Or Sustaining Medical Treatment Based Upon Religious Beliefs, Jonathan Will Apr 2006

My God, My Choice: The Mature Minor Doctrine And Adolescent Refusal Of Life-Saving Or Sustaining Medical Treatment Based Upon Religious Beliefs, Jonathan Will

Journal Articles

No abstract provided.


Legal Reason: The Use Of Analogy In Legal Argument, Richard A. Posner Mar 2006

Legal Reason: The Use Of Analogy In Legal Argument, Richard A. Posner

Journal Articles

No abstract provided.


Reasoning By Analogy (Reviewing Lloyd L. Weinreb, Legal Reason: The Use Of Analogy In Legal Argument (2005)), Richard A. Posner Mar 2006

Reasoning By Analogy (Reviewing Lloyd L. Weinreb, Legal Reason: The Use Of Analogy In Legal Argument (2005)), Richard A. Posner

Journal Articles

No abstract provided.


Examining A Comparative Law Myth: Two Hundred Years Of Riparian Misconception, Andrea B. Carroll Feb 2006

Examining A Comparative Law Myth: Two Hundred Years Of Riparian Misconception, Andrea B. Carroll

Journal Articles

This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the so-called "common ...


Misfearing: A Reply, Cass R. Sunstein Feb 2006

Misfearing: A Reply, Cass R. Sunstein

Journal Articles

No abstract provided.


Seeking Different Treatment, Or Seeking The Same Regard: Remarketing The Transracial Adoption Debate, Angela Mae Kupenda Jan 2006

Seeking Different Treatment, Or Seeking The Same Regard: Remarketing The Transracial Adoption Debate, Angela Mae Kupenda

Journal Articles

The transracial adoption discourse mistakenly has been phrased as a request for black children awaiting adoption to be treated different from white children and to be placed with parents of like race only. This paper urges a remarketing of the transracial adoption debate to reflect a request based on sameness, not difference. The request presented here is not a request for different treatment for black children. Rather, it is for black children to be given the same regard that is given to white children. This request is illustrated with the story of a black couple seeking to adopt healthy, fat ...


Roman Catholic Lawyers In The United States Of America, Thomas L. Shaffer Jan 2006

Roman Catholic Lawyers In The United States Of America, Thomas L. Shaffer

Journal Articles

No abstract provided.


The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer Jan 2006

The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer

Journal Articles

No abstract provided.


Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig Jan 2006

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody ...


Tradition And Development In The Catholic Church's Teaching On Marriage: A Response To Cardinal Trujillo, John J. Coughlin Jan 2006

Tradition And Development In The Catholic Church's Teaching On Marriage: A Response To Cardinal Trujillo, John J. Coughlin

Journal Articles

No abstract provided.


Washington's "War Against Terrorism" And Human Rights: The View From Abroad, Douglass Cassel Jan 2006

Washington's "War Against Terrorism" And Human Rights: The View From Abroad, Douglass Cassel

Journal Articles

No abstract provided.


Properties Of Concentration, Lee Anne Fennell Jan 2006

Properties Of Concentration, Lee Anne Fennell

Journal Articles

No abstract provided.


Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Tom Ginsburg, Paul F. Diehl Jan 2006

Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Tom Ginsburg, Paul F. Diehl

Journal Articles

No abstract provided.


Taking Stock Of Takings: An Author's Retrospective, Richard A. Epstein Jan 2006

Taking Stock Of Takings: An Author's Retrospective, Richard A. Epstein

Journal Articles

No abstract provided.


Understanding The Person Beneath The Robe: Practical Methods For Neutralizing Harmful Judicial Biases, Evan R. Seamone Jan 2006

Understanding The Person Beneath The Robe: Practical Methods For Neutralizing Harmful Judicial Biases, Evan R. Seamone

Journal Articles

This article presents hands-on self-awareness techniques for use by judges, arbitrators, members of commissions, and other legal decision-makers who are confronted with complex cases. All too often, these judges are expected to make the “right” decisions without knowing how to accomplish this task. While judges, no doubt, are capable of applying the law to a case, this is only one aspect of righteous behavior. This article is concerned with the related expectation that judges are capable of rendering fair and impartial decisions. No matter how much training they receive, judges can only avoid biases that are known to them.


From An Act Of God To The Failure Of Man: Hurricane Katrina And The Economic Recovery Of New Orleans, Wendy B. Scott Jan 2006

From An Act Of God To The Failure Of Man: Hurricane Katrina And The Economic Recovery Of New Orleans, Wendy B. Scott

Journal Articles

No abstract provided.


Transnational Media Law At The Bar And In The Classroom, Jack M. Weiss Jan 2006

Transnational Media Law At The Bar And In The Classroom, Jack M. Weiss

Journal Articles

No abstract provided.


Private Debt And The Missing Lever Of Corporate Governance, Douglas G. Baird, Robert K. Rasmussen Jan 2006

Private Debt And The Missing Lever Of Corporate Governance, Douglas G. Baird, Robert K. Rasmussen

Journal Articles

Traditional approaches to corporate governance focus exclusively on shareholders and neglect the large and growing role of creditors. Today's creditors craft elaborate covenants that give them a large role in the affairs of the corporation. While they do not exercise their rights in sunny times when things are going well, these are not the times that matter most. When a business stumbles, creditors typically enjoy powers that public shareholders never have, such as the ability to replace the managers and install those more to their liking. Creditors exercise these powers even when the business is far from being insolvent ...


Religion And State: Some Main Issues And Sources, John M. Finnis Jan 2006

Religion And State: Some Main Issues And Sources, John M. Finnis

Journal Articles

Public reason's default position is not atheism or agnosticism about the dependence of everything on a transcendent Creator. On the contrary, there is good reason to judge that there is such a transcendent cause, capable of communicating with intelligent creatures, that one of the world's religions may be essentially true and others substantially truer than atheism, and that there is a human or natural right to immunity from coercion in religious inquiry, belief (or unbelief, precisely as such), and practice so far as is compatible with public order, that is with the rights of others, public peace and ...


Religion, Division, And The First Amendment, Richard W. Garnett Jan 2006

Religion, Division, And The First Amendment, Richard W. Garnett

Journal Articles

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that ...


The Tax Code As Nationality Law, Michael S. Kirsch Jan 2006

The Tax Code As Nationality Law, Michael S. Kirsch

Journal Articles

This article questions the frequently-asserted axiom that Congress's taxing power knows no bounds. It does so in the context of recently-enacted legislation that creates a special definition of citizenship that applies only for tax purposes. Historically, a person was treated as a citizen for tax purposes (and therefore taxed on her worldwide income and estate) if, and only if, she was a citizen under the nationality law. As a result of the new statute, in certain circumstances a person might be treated as a citizen for tax purposes (and therefore taxed on her worldwide income and estate) for years ...


Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford Jan 2006

Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford

Journal Articles

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to ...