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Articles 1 - 29 of 29
Full-Text Articles in Law
Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman
Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman
Nathan B. Oman
Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …
Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Wayne R. Barnes
No abstract provided.
Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried
Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried
David Kaye
DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …
Rape And Force: The Forgotten Mens Rea, Kit Kinports
Rape And Force: The Forgotten Mens Rea, Kit Kinports
Kit Kinports
In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …
Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian M. Mccall
Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian M. Mccall
Brian M McCall
The Georgia Roundtable Discussion Model: Another Way To Approach Reforming Rape Laws, Andrea A. Curcio
The Georgia Roundtable Discussion Model: Another Way To Approach Reforming Rape Laws, Andrea A. Curcio
Andrea A. Curcio
No abstract provided.
Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey Harrison
Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey Harrison
Jeffrey L Harrison
Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about …
The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya C. Wright
The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya C. Wright
Danaya C. Wright
The relationship between nineteenth century England and colonial India was complex in terms of negotiating the different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, its future became indelibly linked with that of England's, yet India's own unique history and culture meant that many of the reforms the colonialists set out to undertake worked out differently than they anticipated. In particular, the colonial ambition of civilizing the barbaric native Indian male underlay many of the legal reforms attempted in the nearly …
Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan
Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan
Richard Warner
Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.
Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …
The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield
The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield
Joshua A.T. Fairfield
This article argues that informed consent to contract terms is not a good to be maximized, but is rather an information cost that courts should minimize. The goal of mass-market contract law ought to be to keep costs low by encouraging contract standardization. The article applies information cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential …
Consent And Self-Determination In Human Rights Lawmaking, Vijay Padmanabhan
Consent And Self-Determination In Human Rights Lawmaking, Vijay Padmanabhan
Vijay M Padmanabhan
A range of actors have advocated and implemented changes in how international human rights law is made and interpreted to reduce a State’s control over the content of its human rights obligations. Such efforts are premised on the view that State consent is an impediment to development of human rights. This article argues, however, that State consent is essential to the protection of the human right of self-determination, a right which guarantees people collective control over their political, economic, social and cultural development. Thus, efforts to expand international human rights without State consent themselves infringe upon a human right.
Because …
A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand
A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand
Michael A Helfand
This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because …
The Constitution As If Consent Mattered, Tom W. Bell
The Constitution As If Consent Mattered, Tom W. Bell
Tom W. Bell
Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of …
Survey Of Recent European Union Privacy Developments, W. Gregory Voss
Survey Of Recent European Union Privacy Developments, W. Gregory Voss
W. Gregory Voss
The Spanish law implementing the European Union (EU) Data Protection Directive, advisory guidance on consent, facial recognition and biometric technologies from the European Union Article 29 Data Protection Working Party (WP29) , and proposals for EU data protection law reform are analyzed in this survey piece. EU legislative processes are illustrated by a specific occurence: Spanish Organic Law 15/1999 on the Protection of Personal Data is reviewed in the context of Court of Justice of the European Union (ECJ) joined cases, Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) v. Administración del Estado, and Federación de Comercio Electrónico y Marketing …
“Hands Off”: Sex, Feminism, Affirmative Consent, And The Law Of Foreplay, Dan Subotnik
“Hands Off”: Sex, Feminism, Affirmative Consent, And The Law Of Foreplay, Dan Subotnik
Dan Subotnik
No abstract provided.
Consent In Context: Fulfilling The Promise Of International Arbitration (Multiparty, Multi-Contract, And Non-Contract Arbitration), Preface By Jan Paulsson, Karim Youssef
Dr. Karim Y Youssef
No abstract provided.
Juvenile Justice On Appeal, Megan Annitto
Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini
Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini
Brian Gallini
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Graduated Consent In Contract And Tort Law: Toward A Theory Of Justification, Tom Bell
Graduated Consent In Contract And Tort Law: Toward A Theory Of Justification, Tom Bell
Tom W. Bell
We often speak of consent in binary terms, boiling it down to 'yes' or 'no.' In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions, too. Those gradations of consent mark a deep structure of our social world, one especially evident in the contours of contract and tort law. This article draws on those and other sources …
The "Youngest Profession": Consent, Autonomy, And Prostituted Children, Tamar R. Birckhead
The "Youngest Profession": Consent, Autonomy, And Prostituted Children, Tamar R. Birckhead
Tamar R Birckhead
Although precise estimates do not exist, the data suggests that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200,000 and 300,000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate. In 2008—the most recent year for which data is available—approximately 1500 youth under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution …
Jus Cogens As A Vision Of The International Legal Order, Markus A. Petsche
Jus Cogens As A Vision Of The International Legal Order, Markus A. Petsche
markus a petsche
Based on the observation that the concept of jus cogens is of limited relevance for the actual practice of international law, this article argues that, despite its formal inclusion in the Vienna Convention on the Law of Treaties, jus cogens does not constitute a rule of international law. Instead, it is more appropriately viewed as a statement on, or vision of, the international legal order. As such, it has had, and continues to have, significant impact on the post-Vienna Convention development of international law. Part One of this article establishes the inaccuracy of the general view that jus cogens constitutes …
Consent To The Use Of Stored Dna For Genetics Research: A Survey Of Attitudes In The Jewish Population, Marc D. Schwartz, Karen H. Rothenberg, Linda Joseph, Judith Benkendorf, Caryn Lerman
Consent To The Use Of Stored Dna For Genetics Research: A Survey Of Attitudes In The Jewish Population, Marc D. Schwartz, Karen H. Rothenberg, Linda Joseph, Judith Benkendorf, Caryn Lerman
Karen H. Rothenberg
No abstract provided.
The Scale Of Consent, Tom Bell
The Scale Of Consent, Tom Bell
Tom W. Bell
We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This working paper reviews how legal and other authorities regard consent, revealing that they treat consent as a matter of degree and a measure of justification. The scale described here plays a …
What Is The Nature Of The Patient's Consent In The Processing Of Medical Data In European Law?, Jean Herveg
What Is The Nature Of The Patient's Consent In The Processing Of Medical Data In European Law?, Jean Herveg
Jean HERVEG
No abstract provided.
Neither Sheep Nor Peacocks: T.O. Elias And Post-Colonial International Law, Chin Leng Lim
Neither Sheep Nor Peacocks: T.O. Elias And Post-Colonial International Law, Chin Leng Lim
Chin Leng Lim
This article takes as its starting point the characterization of T. O. Elias as a representative of a ‘weak’ form of anti-colonial scholarship. Elias had sought to show that the ancient African kingdoms had participated in international legality with European states on an equal footing. The view has arisen in contemporary scholarship that this mode of argumentation is typical of the weak strain, evincing only a continued tendency to underestimate the imperial nature of international law itself. A related criticism is that many Third World scholars like Elias view international law's claim to universality and its ability to be inclusive …
Rethinking Wolfenden: Prostitute-Use, Criminal Law, And Remote Harm, Michelle Dempsey
Rethinking Wolfenden: Prostitute-Use, Criminal Law, And Remote Harm, Michelle Dempsey
Michelle Madden Dempsey
This article critiques the Wolfenden Committee's conclusion that criminalising prostitute-use is inconsistent with the liberal harm principle. Section one evaluates recent empirical evidence challenging Wolfenden's assumptions regarding prostitution. Section two analyses the use of forced-prostitutes as a direct harm offence of rape. Section three presents a new approach to criminalising the conduct of prostitute-users, and sketches a prima facie case in favour of criminalising solicitation for prostitute-use as an abstract endangerment offence.
The Rule Of Law: A Reassessment For The Twenty-First Century, Noel B. Reynolds
The Rule Of Law: A Reassessment For The Twenty-First Century, Noel B. Reynolds
Noel B Reynolds
This brief radio address attempts to explain the origins of American liberty and to assess its health at the beginning of the 21st century. The notion of rule of law and the emerging science of constitutionalism enabled America’s founding generation to establish a system of political liberty that continues to stand as a model for all human societies to pursue.
The Twilight Of Customary International Law, James Kelly
The Twilight Of Customary International Law, James Kelly
Patrick Kelly
This article criticizes mainstream customary international legal theory as lacking authority and legitimacy. Few customary international law (CIL) norms are, in fact, customary. All customary law, international or otherwise, acquires its legitimacy from the normative belief of a community. Norms may be inferred from the repeated acts believed to be required using the inductive method. CIL, however, has become a device for judges, advocates, and self-interested states to deduce or create new norms without regard to the beliefs or participation of the vast majority of states and their people. CIL norms are constructed from non-binding resolutions and soft law instruments …