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Full-Text Articles in Law
The Canon Of Family Law, Jill Elaine Hasday
The Canon Of Family Law, Jill Elaine Hasday
Public Law and Legal Theory Working Papers
No abstract provided.
The Right To Marry, Cass R. Sunstein
The Right To Marry, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The Supreme Court has said that there is a constitutional “right to marry”; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that …
Three Strategies Of Interpretation, Adrian Vermeule
Three Strategies Of Interpretation, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Constitutional Amendments And The Constitutional Common Law, Adrian Vermeule
Constitutional Amendments And The Constitutional Common Law, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Sympathetic Discriminator: Mental Illness And The Ada, Elizabeth Emens
The Sympathetic Discriminator: Mental Illness And The Ada, Elizabeth Emens
Public Law and Legal Theory Working Papers
Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional …
Group Judgments: Deliberation, Statistical Means, And Information Markets, Cass R. Sunstein
Group Judgments: Deliberation, Statistical Means, And Information Markets, Cass R. Sunstein
Public Law and Legal Theory Working Papers
How can groups elicit and aggregate the information held by their individual members? The most obvious answer involves deliberation. For two reasons, however, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. The unfortunate results include the propagation of errors; hidden profiles; cascade effects; and group polarization. A variety of steps should …
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Public Law and Legal Theory Working Papers
No abstract provided.
Disaggregating 'War', Derek Jinks
Disaggregating 'War', Derek Jinks
Public Law and Legal Theory Working Papers
This Term, the Supreme Court addressed several important questions regarding the role of law and legal institutions in the “war on terrorism.” Specifically, the Court issued important rulings concerning (1) the scope of the President’s war powers; (2) the rights of enemy combatants; and (3) the proper role of courts in time of war. Much remains unresolved by the Court’s opinions, but several basic propositions about the legal concept of “war” are reaffirmed. Presidents enjoy some extraordinary powers in time of war; the role of the judiciary is diminished in some important respects (but not extinguished) in time of war; …
Is The President Bound By The Geneva Conventions?, Derek Jinks, David Sloss
Is The President Bound By The Geneva Conventions?, Derek Jinks, David Sloss
Public Law and Legal Theory Working Papers
The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war. Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land. The scope and content of the Conventions have assumed central importance in debates about U.S. policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba. Indeed, several …
The Uniqueness Of Foreign Affairs, Jide Nzelibe
The Uniqueness Of Foreign Affairs, Jide Nzelibe
Public Law and Legal Theory Working Papers
This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign …
On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars, Bernard E. Harcourt
On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt
Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Optimal War And Jus Ad Bellum, Alan O. Sykes, Eric A. Posner
Optimal War And Jus Ad Bellum, Alan O. Sykes, Eric A. Posner
Public Law and Legal Theory Working Papers
The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decision of states to use force against “rogue” states, and argue that under certain conditions it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.
Protective Parity And The Law Of War, Derek Jinks
Protective Parity And The Law Of War, Derek Jinks
Public Law and Legal Theory Working Papers
No abstract provided.
The Declining Significance Of Pow Status, Derek Jinks
The Declining Significance Of Pow Status, Derek Jinks
Public Law and Legal Theory Working Papers
No abstract provided.
How To Influence States: Socialization And International Human Rights Law, Derek Jinks, Ryan Goodman
How To Influence States: Socialization And International Human Rights Law, Derek Jinks, Ryan Goodman
Public Law and Legal Theory Working Papers
Regime design choices in international law turn on empirical claims about how states behave and under what conditions their behavior changes. We suggest that a central problem for human rights regimes is how best to socialize “bad actors” to incorporate globally legitimated models of state behavior and how to get “good actors” to do better. Substantial empirical evidence suggests three distinct mechanisms whereby states and institutions might influence the behavior of other states: coercion, persuasion, and acculturation. Several structural impediments preclude full institutionalization of coercion- and persuasion-based regimes in human rights law. Yet, inexplicably these models of social influence predominate …
Selection Effects In Constitutional Law, Adrian Vermeule
Selection Effects In Constitutional Law, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
You Are Entering A Gay- And Lesbian-Free Zone: On The Radical Dissents Of Justice Scalia And Other (Post-) Queers, Bernard E. Harcourt
You Are Entering A Gay- And Lesbian-Free Zone: On The Radical Dissents Of Justice Scalia And Other (Post-) Queers, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
"Black On Brown", Cass R. Sunstein
"Black On Brown", Cass R. Sunstein
Public Law and Legal Theory Working Papers
The most important and illuminating early writing on Brown v. Bd. of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court’s decision was sufficiently “neutral.” At the same time, Black’s argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that …
Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth Emens
Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth Emens
Public Law and Legal Theory Working Papers
No abstract provided.
Directions In Sexual Harrassment Law: Afterword, Catharine A. Mackinnon
Directions In Sexual Harrassment Law: Afterword, Catharine A. Mackinnon
Public Law and Legal Theory Working Papers
No abstract provided.
Dollars And Death, Cass R. Sunstein, Eric A. Posner
Dollars And Death, Cass R. Sunstein, Eric A. Posner
Public Law and Legal Theory Working Papers
Administrative regulations and tort law both impose controls on activities that cause mortality risks, but they do so in puzzlingly different ways. Under a relatively new and still-controversial procedure, administrative regulations rely on a fixed value of a statistical life representing the hedonic loss from death. Under much older law, tort law in most states excludes hedonic loss from the calculation of damages, and instead focuses on loss of income, which regulatory policy ignores. Regulatory policy also disregards losses to dependents; tort law usually allows dependents to recover for loss of support. Regulatory policy generally treats the loss of the …
Nationalizing International Criminal Law: The International Criminal Court As A Roving Mixed Court, Jenia Iontcheva
Nationalizing International Criminal Law: The International Criminal Court As A Roving Mixed Court, Jenia Iontcheva
Public Law and Legal Theory Working Papers
No abstract provided.
Submajority Rules (In Legislatures And Elsewhere), Adrian Vermeule
Submajority Rules (In Legislatures And Elsewhere), Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Credibility Imperative: The Political Dynamics Of Retaliation In The World Trade Organization's Dispute Resolution Mechanism, Jide Nzelibe
Public Law and Legal Theory Working Papers
Under the WTO’s dispute settlement procedures, a party that has been injured by a scofflaw state’s failure to comply with its trade obligations may retaliate against the scofflaw state by withdrawing equivalent trade concessions. Legal and economic commentators generally view retaliation as an economically perverse strategy for enforcing free trade norms. This Article explores an alternative explanation, arguing that retaliation may provide the optimal enforcement mechanism for trade liberalization given the prevalence of low compliance incentives and high enforcement costs in international cooperation agreements. This Article argues that retaliation is superior to other remedial options because it enables an injured …
The Right To Destroy, Lior Strahilevitz
The Right To Destroy, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.