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Articles 1 - 26 of 26
Full-Text Articles in Law
Standing Between Private Parties, Thomas P. Schmidt
Standing Between Private Parties, Thomas P. Schmidt
Faculty Scholarship
Standing is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is “whether the plaintiff is the proper party” to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the “v.” It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is “built” on the “single basic …
Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson
Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson
Faculty Scholarship
In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of …
Private And Public Law, Thomas W. Merrill
Private And Public Law, Thomas W. Merrill
Faculty Scholarship
This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible — the discretionary decisions that individuals make in structuring their lives. Public law is concerned …
Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh
Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship
American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …
Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge
Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge
Faculty Scholarship
The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s …
Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary S. Lawson, Guy I. Seidman
Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary S. Lawson, Guy I. Seidman
Faculty Scholarship
One of Professor Lawson’s first students, alluding to a 1985 article with the provocative title “Why Professor [Marty] Redish Is Wrong about Abstention,” declared that his ambition was to inspire someone to write an article entitled “Why [the student] Is Wrong about XXX.” The student claimed that, regardless of what filled in the “XXX,” this event would be the pinnacle of academic accomplishment.
If that view is even close to the mark, then having an entire conference devoted to explaining why Professors Lawson and Seidman are wrong about the Constitution is an extraordinary honor. In all seriousness, we are genuinely …
Regulating Financial Markets – An Ltf Perspective, Katharina Pistor
Regulating Financial Markets – An Ltf Perspective, Katharina Pistor
Faculty Scholarship
This chapter applies the “Legal Theory of Finance” (LTF) I developed in a paper, which was published in the Journal of Comparative Economics in 2013. Together with other research projects, conferences, and workshops conducted in the intervening period, this chapter illustrates the explanatory powers of the theory and its ramifications for the regulation of financial systems. I am grateful for the conference and this volume, and to the other authors in it who have tested LTF in application to new circumstances as they offer a good opportunity to step back and ask more basic questions about LTF:
- What is the …
The Second Amendment & Private Law, Cody Jacobs
The Second Amendment & Private Law, Cody Jacobs
Faculty Scholarship
The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …
Democratic Experimentalism, Charles F. Sabel, William H. Simon
Democratic Experimentalism, Charles F. Sabel, William H. Simon
Faculty Scholarship
Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.
Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …
Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman
Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman
Faculty Scholarship
In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form …
Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge
Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge
Faculty Scholarship
As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial …
Christopher Columbus Langdell And The Public Law Curriculum, Peter L. Strauss
Christopher Columbus Langdell And The Public Law Curriculum, Peter L. Strauss
Faculty Scholarship
Teaching materials in public law courses typically rely almost wholly on judicial opinions as their primary materials, amplified by selections from the secondary literature. Constitutional text may appear independently, but statutory text rarely does, and the materials of the legislative process are generally absent. In administrative law course books, administrative opinions and the materials of rulemaking rarely fever appear. Yet these are primary materials with which lawyers must deal with increasing frequency. Lawyers encounter statutes, rules, administrative policies, and administrative disputes without judicial guidance, looking forward and not backward in time. The growth of courses in legislation and the regulatory …
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
Faculty Scholarship
This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …
The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff
The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff
Faculty Scholarship
In these two short essays, I examine the somewhat bizarre — and potentially harmful — ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance …
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Faculty Scholarship
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …
Obamacare's (3) Day(S) In Court, Abigail Moncrieff
Obamacare's (3) Day(S) In Court, Abigail Moncrieff
Faculty Scholarship
Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …
Preemption And Institutional Choice, Thomas W. Merrill
Preemption And Institutional Choice, Thomas W. Merrill
Faculty Scholarship
Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to "deciding who decides." Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?" The answer traditionally given by American legal academics – the federal courts, and especially the …
Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington
Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington
Faculty Scholarship
Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …
Relational Duties, Regulatory Duties, And The Widening Gap Between Individual Health Law And Collective Health Policy, William M. Sage
Relational Duties, Regulatory Duties, And The Widening Gap Between Individual Health Law And Collective Health Policy, William M. Sage
Faculty Scholarship
In response to a prominent editorial by Dr. Jeffrey M. Drazen, Professor Sage explains how a relational approach has impeded health law's ability to effectively govern the American health care system, arguing that health law has traditionally focused on the physician-patient encounter rather than on achieving collective objectives (which he calls regulatory duties). Professor Sage traces health law's relational emphasis to private and public law, professional ethics and bioethics, budgetary and general politics, and health care consumerism. He concludes that four areas of health policy-conflicts of interest in biomedical research, managed care and pay-for-performance, health care transparency and education, and …
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Faculty Scholarship
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
European Community Law From A U.S. Perspective, George A. Bermann
European Community Law From A U.S. Perspective, George A. Bermann
Faculty Scholarship
Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …
Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss
Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss
Faculty Scholarship
Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …
Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.
Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.
Faculty Scholarship
Today, virtually everyone has a proposal for "reforming" class action litigation but both consensus and coherence are lacking. Some proposals are bluntly restrictive. For example, the Reagan Administration would reduce attorney's fees, place a ceiling on product liability, and partially repeal treble damage statutes. In the same vein, the United States Supreme Court has shown itself parsimonious on the question of fee awards, by authorizing fee waivers, approving offers of settlement that seemingly permit fee shifting against the plaintiff's attorney, and curtailing the traditional bases on which a fee award may be enhanced. Other proposals have offered essentially neutral procedural …
Shareholders Versus Managers: The Strain In The Corporate Web, John C. Coffee Jr.
Shareholders Versus Managers: The Strain In The Corporate Web, John C. Coffee Jr.
Faculty Scholarship
"We have entered the era of the two-tier, front-end loaded, bootstrap, bust-up, junk-bond takeover." —Martin Lipton
Until recently, takeovers typically involved larger firms digesting smaller firms, a process that most theorists have assumed was driven by the pursuit of synergistic gains. Lately, however, this dynamic has dramatically reversed itself. To a considerable extent, the large conglomerate is now the target, and such prototypical conglomerate firms as General Foods, Richardson-Vicks, Beatrice, Revlon, SCM, CBS,USX, and Anderson, Clayton and Co. have either been acquired or forced to restructure themselves within the last three years alone. The new bidder in turn tends to …
Legal Education And Public Policy, Lawrence G. Baxter
Legal Education And Public Policy, Lawrence G. Baxter
Faculty Scholarship
No abstract provided.
"Public Policy" In The Conflict Of Laws, Monrad G. Paulsen, Michael I. Sovern
"Public Policy" In The Conflict Of Laws, Monrad G. Paulsen, Michael I. Sovern
Faculty Scholarship
In deciding a conflict of laws question, a judge will sometimes say, "The foreign law ordinarily applicable will not be applied in this case because to do so would violate our public policy." The textwriters, language in the cases, and the Restatement agree: the "normal" operation of choice of law rules is subject to a "public policy" limitation. This paper is an attempt to explore the meanings and significance of "public policy," used in this general way, in the conflict of laws.