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Articles 61 - 90 of 290
Full-Text Articles in Law
The Reflections And Responses Of A Legal Contrarian, Richard A. Epstein
The Reflections And Responses Of A Legal Contrarian, Richard A. Epstein
Articles
No abstract provided.
Happiness And Revealed Preferences In Evolutionary Perspective, Richard A. Epstein
Happiness And Revealed Preferences In Evolutionary Perspective, Richard A. Epstein
Articles
No abstract provided.
The At&(And)T Consent Decree: In Praise Of Interconnection Only, Richard A. Epstein
The At&(And)T Consent Decree: In Praise Of Interconnection Only, Richard A. Epstein
Articles
No abstract provided.
The Intent-To-Benefit: Individually Enforceable Rights Under International Treaties, Sital Kalantry
The Intent-To-Benefit: Individually Enforceable Rights Under International Treaties, Sital Kalantry
Articles
Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. …
What's Wrong With International Law Scholarship?: Gaps In International Legal Literature, Lyonette Louis-Jacques
What's Wrong With International Law Scholarship?: Gaps In International Legal Literature, Lyonette Louis-Jacques
Articles
No abstract provided.
Dead Hand Arguments And Constitutional Interpretation, Adam M. Samaha
Dead Hand Arguments And Constitutional Interpretation, Adam M. Samaha
Articles
This Article attempts to reset the relationship between theories of constitutional authority and methods of constitutional interpretation. Several scholars assert that our reasons for respecting the United States Constitution as law-despite its imperfection and dead authors-strongly influence the proper method of interpretation for that text. The "why" of authority supposedly drives the "how" of interpretation. But this relationship can be better understood. To the extent an authority theory is distinguishable from interpretive method, it is true that the former will identify what counts as law to be interpreted. Beyond that, the asserted relationship fades. First, some authority theories actually depend …
Cybersecurity In The Payment Card Industry, Richard A. Epstein, Thomas P. Brown
Cybersecurity In The Payment Card Industry, Richard A. Epstein, Thomas P. Brown
Articles
No abstract provided.
The Judgment Power, William Baude
The Judgment Power, William Baude
Articles
When an Article III court decides a case, and the President disagrees with the outcome, what can he do about it? Existing scholarship generally takes two views. Some scholars argue that the President has general authority to review these judgments on their merits and decide whether to enforce them. Others believe that the President has an unqualified duty to obey court judgments no matter what. This Article challenges both of those views. Drawing on conventional constitutional history as well as the private law of judgments, this Article defends a new view of the Judiciary’s “Judgment Power.” Judgments are binding on …
Judging The Voting Rights Act, Adam B. Cox, Thomas J. Miles
Judging The Voting Rights Act, Adam B. Cox, Thomas J. Miles
Articles
The Voting Rights Act has radically altered the political status of minority voters and dramatically transformed the partisan structure of American politics. Given the political and racial salience of cases brought under the Act, it is surprising that the growing literature on the effects of a judge's ideology and race on judicial decisionmaking has overlooked these cases. This Article provides the first systematic evidence that judicial ideology and race are closely related to findings of liability in voting rights cases. Democratic appointees are significantly more likely than Republican appointees to vote for liability under section 2 of the Voting Rights …
Some Effects Of Moral Indignation On Law, Cass R. Sunstein
Some Effects Of Moral Indignation On Law, Cass R. Sunstein
Articles
No abstract provided.
Self-Execution And Treaty Duality, Curtis A. Bradley
Self-Execution And Treaty Duality, Curtis A. Bradley
Articles
Pursuant to Article II of the Constitution, the President has the power to make treaties with the advice and consent of two-thirds of the Senate, and these treaties uncontroversially become binding on the United States as a matter of international law. The status of such treaties within the U.S. legal system is less clear. The Supremacy Clause states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the"supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v Neilson, however, it has been understood …
Learning From The Limitations Of Deterrence Research, Michael Tonry
Learning From The Limitations Of Deterrence Research, Michael Tonry
Articles
No abstract provided.
The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski
The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski
Articles
No abstract provided.
Across Curricular Boundaries: Searching For A Confluence Between Marital Agreements And Indian Land Transactions, Judith T. Younger
Across Curricular Boundaries: Searching For A Confluence Between Marital Agreements And Indian Land Transactions, Judith T. Younger
Articles
No abstract provided.
The Frontier Of Eminent Domain, Alexandra Klass
The Frontier Of Eminent Domain, Alexandra Klass
Articles
The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated 'economic development takings' the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …
Rethinking Trademark Fair Use, William Mcgeveran
Rethinking Trademark Fair Use, William Mcgeveran
Articles
The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law's various fair use doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, …
The Hidden Bias Of The Vienna Convention, Vincy Fon, Francesco Parisi
The Hidden Bias Of The Vienna Convention, Vincy Fon, Francesco Parisi
Articles
No abstract provided.
Wipo-Wto Relations And The Future Of Global Intellectual Property Norms, Ruth Okediji
Wipo-Wto Relations And The Future Of Global Intellectual Property Norms, Ruth Okediji
Articles
The intense scholarly debate about the effects of harmonized global intellectual property (IP) rules under the TRIPS Agreement has yet to consider what role an appropriate organizational framework should play in facilitating development of IP norms to address new global challenges. The prevailing assumption has been that the norm-setting role of the World Intellectual Property Organization (WIPO) will remain unchanged despite the primacy of the TRIPS Agreement and the explicit mandate of the WTO for global IP regulation. Indeed, with respect to the supply of public goods, only the WTO - not WIPO - has the formal legal mandate to …
Limiting Excessive Prison Sentences Under Federal And State Constitutions, Richard Frase
Limiting Excessive Prison Sentences Under Federal And State Constitutions, Richard Frase
Articles
No abstract provided.
Privatizing Labor Law: Neutrality/Card Check Agreements And The Role Of The Arbitrator, Laura Cooper
Privatizing Labor Law: Neutrality/Card Check Agreements And The Role Of The Arbitrator, Laura Cooper
Articles
No abstract provided.
Takings And Trespass: Trespass Liability For Precondemnation Entries, Ann Burkhart
Takings And Trespass: Trespass Liability For Precondemnation Entries, Ann Burkhart
Articles
When the government, a utility company, or another entity with the power of eminent domain enters land before acquiring it, the courts are extremely divided about whether the landowner can sue for trespass or only for inverse condemnation. A court's decision on this issue has tremendous practical implications. For example, it substantially affects the remedies that are available to the landowner, including its right to recover the property. The court's decision also has significant public policy implications because it involves the balance between government sovereignty over land and protection of private property rights. eminent domain, takings, inverse condemnation, trespass, government …
Carbon Sequestration And Sustainability, Alexandra B. Klass, Sara E. Bergan
Carbon Sequestration And Sustainability, Alexandra B. Klass, Sara E. Bergan
Articles
This Symposium Essay explores the question of whether the developing technology of geologic carbon capture and sequestration (CCS), which involves capturing CO2 emissions from industrial sources and power plants and sequestering them underground, is consisting with principles of sustainable development. This Essay concludes that while CCS on its own may not be consistent with basic principles of sustainability, it presents a potential opportunity to create sufficiently deep cuts in greenhouse gas (GHG) emissions to allow the transition to a more sustainable future.
Climate Change And Carbon Sequestration: Assessing A Liability Regime For The Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson
Climate Change And Carbon Sequestration: Assessing A Liability Regime For The Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson
Articles
As the world struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is "carbon capture and sequestration" (CCS) which consists of capturing carbon dioxide (CO2) emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient …
Horizontal Federalism, Allan Erbsen
Horizontal Federalism, Allan Erbsen
Articles
This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their …
The Myth Of Discovery, Claire Hill
The Myth Of Discovery, Claire Hill
Articles
This review essay of Barry Schwartz’s Paradox of Choice discusses how Schwartz’s thesis that more choice is not always better should inform economists’ increasing acknowledgment that preferences are constructed, not fixed. In this companion piece to my more detailed consideration of the subject of constructed preferences, I argue that what makes the assumption of fixed preferences possible is a myth, the myth of discovery - that preferences exist to be discovered. Once we acknowledge that preferences are as much made as found, and that the raw materials from which they are made are scarcely stable, the assumption of fixed preferences …
The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill
The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill
Articles
Economists typically assume that preferences are fixed - that people know what they like and how much they like it relative to all other things, and that this rank-ordering is stable over time. But this assumption has never been accepted by any other discipline. Economists are increasingly having difficulty arguing that the assumption is true enough to generate useful predictions and explanations. Indeed, law and economics scholars increasingly acknowledge that preferences are constructed, and that the law itself can help construct preferences. Still, fixed preferences are often treated as a normative ideal: Even if people don't have fixed preferences, they …
Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill
Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill
Articles
Legal scholarship has long concerned itself with race, gender, and other core identities. Economics, and law and economics, is now turning its attention to other dimensions of identity. What is identity? Identity is "a person's sense of self."' Identity has genetic, cultural and neural bases grounded in an evolutionary process.' Identity helps individuals make sense of themselves and provides a feeling of grounding or belonging. There are many potential identity dimensions, including gender, facial features, and height, as well as religion, ethnicity, social-group affiliation, sports-team loyalty, family, profession, artistic preferences, culinary preferences, and place of origin. The significance of different …
Terror Conflated?, Fionnuala Ní Aoláin
Terror Conflated?, Fionnuala Ní Aoláin
Articles
This review of Eric Posner & Adrian Vermeule's book Terror in the Balance Security, Liberty and the Courts is constructed in part as a response not only to this scholarly work but also to recent executive and policy directions which suggest that substantial deference should be given to the executive in times of crisis, that courts should defer competence and that any harms inflicted upon civil liberties by executive action are overstated by interests with little competence in the core arena of security.
Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire Hill
Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire Hill
Articles
By some accounts, Latin American contract documentation increas- ingly resembles U.S. contract documentation.1 This is puzzling, given that the U.S. documentation has developed in a broader institutional context particular to the U.S. The context includes a particular type of legal train- ing, particular types of law firms, particular legal institutions, and so on. Why is this occurring, and what effect will it have on contracting practice in Latin America? This commentary briefly considers these issues; it con- siders as well some broader implications of international convergence in contracting practices.
Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser
Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser
Articles
This article, which was prepared for a spring 2007 conference at Cardozo Law School on "The Domestic Commander in Chief," considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an "information funnel" approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing …