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Articles 31 - 60 of 180
Full-Text Articles in Law
The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz
The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz
Reviews
Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which …
Review Of The Choice Theory Of Contracts, Nicolas Cornell
Review Of The Choice Theory Of Contracts, Nicolas Cornell
Reviews
This book aims to provide a new approach to thinking about the role of contract law in a liberal state. The fundamental idea is that the law should affirmatively facilitate citizens' autonomy by creating and sustaining various different types of contractual relationships so that citizens have the option to choose among them. The authors start from the idea that "bargaining for terms is not the dominant mode of contracting . . . the mainstay of present-day contracting is the choice among types" (2-3). We choose to relate as employees or independent contractors, married or just cohabiting, merchants selling goods or …
No Reason To Blame Liberals (Or, The Unbearable Lightness Of Perversity Arguments), Margo Schlanger
No Reason To Blame Liberals (Or, The Unbearable Lightness Of Perversity Arguments), Margo Schlanger
Reviews
In addition to the current extraordinary number of people behind American bars, the other key feature of our current carceral state is the very high concentration of non-whites in that population. That concentration of non-whites has grown significantly since the 1960s, when whites constituted nearly two thirds of American prison population; today, they are only a bit over one-third. Since 72% of Americans are white, the distinction in terms of incarceration rate is far more stark: among white men, the current imprisonment rate (counting only sentenced prisoners) is 4.7/1000; among Latino men it is two-and-a-half times that (11.3/1000); and among …
Review Of Sovereign Defaults Before International Courts And Tribunals, John A. E. Pottow, Emily Iversen
Review Of Sovereign Defaults Before International Courts And Tribunals, John A. E. Pottow, Emily Iversen
Reviews
This book review probes Michael Waibel’s new book, Sovereign Defaults Before International Courts and Tribunals. Waibel's project is ambitious, exploring international attempts to address sovereign defaults over the past century and a half. Through painstaking and comprehensive historical analysis, Waibel shows how we've been here before -- a sober reminder for those thinking Argentina is simply part of a new fad in financial default. With the UN now turning its attention to sovereign debt issues, this study is especially timely. Although somewhat disappointing in the lightness of its normative content, the book should nevertheless prove helpful to those considering the …
Bottlenecks And Antidiscrimination Theory, Samuel R. Bagenstos
Bottlenecks And Antidiscrimination Theory, Samuel R. Bagenstos
Reviews
In American antidiscrimination theory, two positions have competed for primacy. One, anticlassification, sees the proper goal of antidiscrimination law as being essentially individualistic. The problem with discrimination, in this view, is that it classifies individuals on the basis of an irrelevant or arbitrary characteristic—and that it, as a result, denies them opportunities for which they are otherwise individually qualified. The other position, antisubordination, sees the proper goal of antidiscrimination law as being more group oriented. The problem with discrimination, in this view, is that it helps constitute a social system in which particular groups are systematically subject to disadvantage and …
The Future Resists Control, Richard A. Primus
The Future Resists Control, Richard A. Primus
Reviews
Bruce Ackerman long ago persuaded me that Article V has not been the only route—or even the normal route—to legitimate constitutional change. Volume 3 admirably adds nuance to Ackerman’s account of what happens instead. But nuance can be a vice of a theory as well as a virtue, depending on whether the goal is to understand a phenomenon in its complexity or to provide an actionable program for the future. We The People aims to do both: it is, after all, a grand project, probably the most important in constitutional thought in the last thirty years. But in spite of …
Review Of Failing Law Schools, Richard O. Lempert
Review Of Failing Law Schools, Richard O. Lempert
Reviews
Brian Tamanaha's book Failing Law Schools is neither sociology nor a synthesis of social science research. Rather it is social commentary rooted in Tamanaha’s experience as a law professor, the literature on legal education, and barely analyzed data on law school costs and student outcomes. Tamanaha cannot be blamed for the absence of sophisticated research on matters that cry out for empirical investigation nor for having to rely on data sources that at best capture only a few bivariate relationships, but these limitations make his causal analyses and proposed solutions less than compelling. Still the book is not without its …
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Reviews
When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.
Review Of Taming Globalization: International Law, The U.S. Constitution, And The New World Order, Kristina Daugirdas
Review Of Taming Globalization: International Law, The U.S. Constitution, And The New World Order, Kristina Daugirdas
Reviews
According to Julian Ku of Hofstra University School of Law and John Yoo of the University of California, Berkeley, School of Law, globalization poses a significant threat to the U.S. constitutional system of governance. In their recent book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, they seek to reassure readers that this threat can be deflected. If their prescriptions are followed, Ku and Yoo argue, the United States can avoid constitutional problems while continuing to reap the benefits of international cooperation. Ku and Yoo insist that they are neither trying to stop globalization …
The Model Of Plans And The Prospects For Positivism, Scott Hershovitz
The Model Of Plans And The Prospects For Positivism, Scott Hershovitz
Reviews
In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are plans. Recognition of that fact leads to legal positivism, Shapiro says, because the content of a plan is fixed by social facts. In this essay, I argue that Shapiro’s case for legal positivism fails. Moreover, I argue that we can learn important lessons about the prospects for positivism by attending to the ways in the argument fails. As I show, the flaws in Shapiro’s argument reveal structural problems with a family of prominent positivist views, including the one defended by Joseph Raz.
The Vexations Of Aging From The Imagination (A Lot) And Life (A Little) Of Bill Miller, James J. White
The Vexations Of Aging From The Imagination (A Lot) And Life (A Little) Of Bill Miller, James J. White
Reviews
Bill Miller has done something quite uncommon, possibly singular: he has become a prominent law professor by writing books that have nothing to do with the law. His books do not even have the remote relation to law that books by philosophers or historians can claim. Having studied medieval history before law school and achieved law school tenure by teetering on the edge of law in his work on Icelandic sagas, Miller jumped the fence completely in his books The Mystery of Courage, The Anatomy of Disgust, and Faking It. He has never returned. Presumably, this Review earned a place …
Late-Night Law Firms, Scott Hershovitz
Late-Night Law Firms, Scott Hershovitz
Reviews
But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are …
Review Of Corrective Justice, By E. Weinrib, Scott Hershovitz
Review Of Corrective Justice, By E. Weinrib, Scott Hershovitz
Reviews
I once heard it said of a famous philosopher of law that he never allowed his philosophy to be polluted by law. No one will ever say that about Ernie Weinrib. His latest book - Corrective Justice - is exceptional precisely because Weinrib is deeply informed about legal doctrine. Of course, he also has formidable philosophical skill, and in bringing that to bear on doctrine, he dismantles any thought that corrective justice is too abstract a concept to shed light on the practical problems that courts face. Along the way, he also demol ishes the instrumentalism that has recently dominated …
Review Of The Making Of Tax Law: The Development Of The Swedish Tax System, Reuven S. Avi-Yonah
Review Of The Making Of Tax Law: The Development Of The Swedish Tax System, Reuven S. Avi-Yonah
Reviews
Imagine that a single person had been responsible for all U.S. tax reforms enacted from 1974 to 2012. That was the position of Sven-Olof Lodin, the former president of the International Fiscal Association. For more than 40 years, professor Lodin was the most influential voice in Swedish tax policy. This was not in a single, official governmental capacity, but rather as a member of more than 20 government commissions and working parties on taxation, which were responsible for all the major changes in Swedish tax law in recent decades, including the "Tax Reform of the Century" in 1991. In this …
Cute Prickly Critter With Presbyopia, Don Herzog
Cute Prickly Critter With Presbyopia, Don Herzog
Reviews
Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …
A Crisis In Federal Habeas Law, Eve Brensike Primus
A Crisis In Federal Habeas Law, Eve Brensike Primus
Reviews
Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …
Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus
Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus
Reviews
Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.
Review Of Seeds Of Destruction: Why The Path To Economic Ruin Runs Through Washington, And How To Reclaim American Prosperity, Michael S. Barr
Review Of Seeds Of Destruction: Why The Path To Economic Ruin Runs Through Washington, And How To Reclaim American Prosperity, Michael S. Barr
Reviews
The United States has just gone through the worst financial crisis since the Great Depression. Our financial system came to brink of collapse, saved only by a massive intervention by the federal government. Although officially the Great Recession is now over, high unemployment and slow growth persist. Deficits that were ballooning in the 2000s with the weight of tax cuts, increased health care expenditures, and defense spending related to Iraq and Afghanistan, even before the financial crisis, have continued to climb, as lower tax receipts, automatic stabilizers, and fiscal stimulus kicked into gear.
Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson
Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson
Reviews
Any attempt to analyze China’s comprehensive labor reform over the past three decades faces at least two dilemmas. First, the analyst must confront the task of describing how the Chinese state has dismantled the “work unit” (or danwei)- based “iron rice bowl” employment and entitlements system, replacing that comforting but low-production employment and social security scheme with formally-proclaimed legal rights and institutions apparently designed to protect employees in a functioning labor market. Second, the analyst must track how the state’s commitment (at all levels of government) to implementation of proclaimed legal and institutional protections has waxed and waned, based upon …
"Per Se Illegality For Reverse Payment Settlements?" Review Of "Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Daniel A. Crane
"Per Se Illegality For Reverse Payment Settlements?" Review Of "Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Daniel A. Crane
Reviews
Congratulations to Mike on a very fine book. I will confine my comments to Mike's chapter on patent settlements (Chapter 15), which I understand will also be coming out as an article in the Michigan Law Review. Patent settlements involving "reverse payments" are a huge topic on which I and many others have spilled much ink already. Representative Bobby Rush (President Obama's erstwhile nemesis from Chicago's South Side) has just introduced legislation that would ban reverse payments.' I will not regurgitate my entire spiel on patent settlements here, but instead just try to highlight my essential disagreement with Mike …
Review Of Staying With Conflict: A Strategic Approach To Ongoing Disputes, Carl E. Schneider
Review Of Staying With Conflict: A Strategic Approach To Ongoing Disputes, Carl E. Schneider
Reviews
Bernie is at it again! And we can be thankful for that. For the past three decades, he has consistently provided leadership in our field. A central part of his work has been his invitation for us to rethink just what our field is. Through his work, he has offered us an expanded definition of our role. This time, in Staying with Conflict, he wants us to consider how misleading and confining our tag line of “conflict resolution” is. So much of what we deal with cannot be resolved! If that is our self-concept, he argues, we will often …
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Reviews
Of all of Chicago's law and economics conquests, antitrust was the most complete and resounding victory. Chicago, of course, is a synecdoche for ideological currents that swept through and from Hyde Park beginning in the 1950s and reached their peak in the 1970s and 1980s. From early roots in antitrust and economic regulation, the Chicago School branched outward, first to adjacent fields like securities regulation, corporate law, property, and contracts, and eventually to more distant horizons like sexuality and family law. Predictably, the Chicago School exerted its greatest influence in fields closely tied to commercial regulation. But never did Chicago …
Review Of Trial Of Modernity: Judicial Reform In Early Twentieth Century China, 1901-37, By Xiaoqun Xu, Nicholas C. Howson
Review Of Trial Of Modernity: Judicial Reform In Early Twentieth Century China, 1901-37, By Xiaoqun Xu, Nicholas C. Howson
Reviews
Observing these significant legal-political debates in the Chinese press and academy in the first decade of the twenty-first century, we might think they concern battles started only in the last decade and a half of Reform-era China. Now Professor Xu Xiaoqun reminds us that these struggles have a much longer pedigree, stretching back to the end of the nineteenth century and China's first fraught encounter with "the West" and one idea of "modernity."
Review Of Reforming Medicare: Options, Tradeoffs, And Opportunities, Jill R. Horwitz
Review Of Reforming Medicare: Options, Tradeoffs, And Opportunities, Jill R. Horwitz
Reviews
Medicare needs fixing. The program has its strengths; it is popular among beneficiaries, has very low administrative costs (maybe too low), and, since its inception, has greatly reduced financial risk exposure among beneficiaries. Nevertheless, it is unaffordable and inefficient. Jeanne Lambrew and Henry Aaron take up both of these challenges for Medicare reform in great detail in Reforming Medicare.
The Virtues Of Medicare, Jill R. Horwitz
The Virtues Of Medicare, Jill R. Horwitz
Reviews
Most of us look forward to a heaven where people don't get sick. But if they do, health care would be traded among fully informed patients and providers in perfectly competitive and frictionless markets. In that perfect world, sick citizens simply shop for doctors the way they shop for other consumer goods. The better doctors, like the most elegant hotel rooms and fanciest cars, would cost more than inferior doctors. Patients would consult their utility meters and, with appropriate attention to discounting over an infinite lifetime, choose accordingly. After each treatment, the patients would know the quality of their outcome …
Review Of The Philosophy Of Positive Law: Foundations Of Jurisprudence, Howard Bromberg
Review Of The Philosophy Of Positive Law: Foundations Of Jurisprudence, Howard Bromberg
Reviews
This meticulously researched book addresses a central question of analytical and philosophical jurisprudence: What is positive law? Throughout his analysis, James Bernard Murphy, author of The Moral Economy of Labor: Aristotelian Themes in Economic Theory (New Haven: Yale University Press, 1993), contrasts positive law with the other two kinds of law that constitute the triad of legal concepts - natural law and customary law. Although they are treated at length in this work, Murphy states in the preface that he intends to write a companion volume on natural law and customary law, "thus completing the foundation of philosophical jurisprudence" (p. …
Review Of Foreign Direct Investment And The Regional Economy, James R. Hines Jr.
Review Of Foreign Direct Investment And The Regional Economy, James R. Hines Jr.
Reviews
There is a broad consensus that foreign direct investment (FDI) confers economic advantages on local economies. Jones and Wren simply refuse to share the good feeling about FDI without first processing some numbers. In doing so, they take a detached and serious look at the consequences of foreign direct investment in one area, the northeastern region of England. They have access to excellent data on the regional operations of foreign-owned plants from 1985 to 1999, and use these data to answer important questions about FDI in the region. How large are the benefits that FDI brings, as measured by new …
Review Of Napoleon And The British, Donald J. Herzog
Review Of Napoleon And The British, Donald J. Herzog
Reviews
Was he fascinating or repulsive? The bold courier of republican liberty under law or the scabrous carrier of lethal Jacobin corruption? Heaven-sent deliverer or providential scourge? Even his name was up for grabs: was it Bonaparte or Buonaparte? One need only dip into contemporary sources to realize that the British were obsessed with Napoleon. Stuart Semmel has done a first-rate job combing through those sources and using them to illuminate political culture. (Semmel does not offer the primary quotations I will use here. I offer them for fun, or to pile on with glee, and not at all to reproach …
The Big One, Edward A. Parson
The Big One, Edward A. Parson
Reviews
Richard Posner's Catastrophe: Risk and Response (Oxford University Press, 2004) examines four risks whose worst cases could end advanced human civilization or worse: asteroid impacts, a catastrophic chain reaction initiated in high-energy particle accelerators, global climate change, and bioterrorism. He argues that these all warrant more thought and response than they are receiving, and that they can usefully be assessed using a simple analytic framework based on cost-benefit analysis. This essay reviews knowledge of these risks and critically examines Posner's claims for a consistent analytic approach. While the conclusions that each risk merits more thought and effort appear persuasive, these …
Harmful Tax Competition And Its Harmful Remedies, James R. Hines Jr.
Harmful Tax Competition And Its Harmful Remedies, James R. Hines Jr.
Reviews
There is, among some of your reviewer's friends, an abhorrence of tax competition, and a fascination with tax harmonization, that defies simple understanding. The way that the case is typically presented, European tax harmonization is desirable because eliminating tax differences between European nations would promote economic efficiency. With greater economic efficiency, there is more of everything to go around, so it becomes possible to maintain life exactly as it currently is, except that now, instead of every family having one toaster, they can have two. A wise goal, a worthy goal, this economic efficiency-though the drive to eke more out …