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Articles 1 - 30 of 54
Full-Text Articles in Law
Optimal Warning Strategies: Punishment Ought Not To Be Inflicted Where The Penal Provision Is Not Properly Conveyed, Murat C. Mungan
Optimal Warning Strategies: Punishment Ought Not To Be Inflicted Where The Penal Provision Is Not Properly Conveyed, Murat C. Mungan
Scholarly Publications
Law enforcers frequently issue warnings, as opposed to sanctions, when they detect first-time offenders. However, virtually all of the law and economics literature dealing with optimal penalty schemes for repeat offenders suggest that issuing warnings is a sub-optimal practice. Another observed phenomenon is the joint use of warnings and sanctions in law enforcement: person A may receive a sanction, whereas person B is only warned for committing the same offense. This situation can be explained through the use of hybrid warning strategies, a concept not yet formalized in the law enforcement literature, where law enforcers issue warnings to x% …
Unilateral Reordering In The Reel World, Jake Linford
Unilateral Reordering In The Reel World, Jake Linford
Scholarly Publications
No abstract provided.
Abusive Constitutionalism, David Landau
Abusive Constitutionalism, David Landau
Scholarly Publications
This paper identifies an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in a diverse group of countries such as Hungary, Egypt, and Venezuela has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease. Since military coups and other blatant ruptures in the constitutional order have fallen out of favor, actors instead rework the constitutional order with subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability …
Dirty Silver Platters: The Enduring Challenge Of Intergovernmental Investigative Illegality, Wayne A. Logan
Dirty Silver Platters: The Enduring Challenge Of Intergovernmental Investigative Illegality, Wayne A. Logan
Scholarly Publications
This Essay addresses a longstanding concern in American criminal justice: that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development that has assumed added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature.
The Essay offers the first comprehensive examination of this phenomenon …
Legal Diversification, Kelli A. Alces
Legal Diversification, Kelli A. Alces
Scholarly Publications
The greatest protection investors have from the risks associated with capital investment is diversification. This Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that are governed by a variety of legal rules. Legal diversification protects investors from the risk that a particular method of minimizing agency costs will prove ineffective and allows investors to own securities in a variety of firms, with each security governed by the most efficient set of legal rules given the circumstances of the investment. Diversification of investment by legal rules is possible …
Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern
Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern
Scholarly Publications
No abstract provided.
The Future Of Philanthropy: Questioning Today's Orthodoxies, Re-Affirming Yesterday's Foundations, Rob Atkinson
The Future Of Philanthropy: Questioning Today's Orthodoxies, Re-Affirming Yesterday's Foundations, Rob Atkinson
Scholarly Publications
No abstract provided.
The Hidden Structure Of Fact-Finding, Emily Spottswood
The Hidden Structure Of Fact-Finding, Emily Spottswood
Scholarly Publications
This Article offers a new account of legal fact-finding based on the dual-process framework in cognitive psychology. This line of research suggests that our brains possess two radically different ways of thinking. “System 1” cognition is unconscious, fast, and associative, while “System 2” involves effortful, conscious reasoning. Drawing on these insights, I describe the ways that unconscious processing and conscious reflection interact when jurors hear and decide cases. Most existing evidential models offer useful insights about the ways that juries use relevant information in deciding cases but fail to account for situations in which their decisions are likely to be …
Reverse Payments, Perverse Incentives, Murat C. Mungan
Reverse Payments, Perverse Incentives, Murat C. Mungan
Scholarly Publications
No abstract provided.
Informal Collateral Consequences, Wayne A. Logan
Informal Collateral Consequences, Wayne A. Logan
Scholarly Publications
This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law. Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.
The increased concern over collateral consequences, while surely welcome and important, has however been lacking in …
Women's Rights On The Right: The History And Stakes Of Modern Pro-Life Feminism, 1968 To The Present, Mary Ziegler
Women's Rights On The Right: The History And Stakes Of Modern Pro-Life Feminism, 1968 To The Present, Mary Ziegler
Scholarly Publications
Recently, pro-life advocates have popularized claims that abortion harms rather than helps women. The best known of these arguments are the woman-protective arguments—contentions, such as those endorsed in Gonzales v. Carhart, justifying abortion restrictions on the basis of the physical or psychological harms supposedly produced by the procedure. Woman-protective claims, however, represent only one part of a much larger strategy that this Article calls pro-life feminism. The Article follows pro-life activists’ use of the term “feminist” or “feminism.” As the Article makes clear, activists on competing sides of the abortion issue have contested the meaning of “true” feminism. Taking …
How Modern Choice Of Law Helped To Kill The Private Attorney General, Erin O'Hara O'Connor
How Modern Choice Of Law Helped To Kill The Private Attorney General, Erin O'Hara O'Connor
Scholarly Publications
It is a great honor to be asked to deliver the second Annual Brainerd Currie Lecture at Mercer University School of Law. Brainerd Currie was an immensely influential law professor who is recognized as the leading scholar of conflict of laws in the twentieth century. Mercer has the distinction of being both Currie’s law school alma mater as well as his first academic appointment, probably the two most significant intellectual influences on any scholar. More recently, Mercer has attracted other influential conflicts scholars and cheerleaders of the topic, including Dean Gary Simson, Larry Ribstein, Hal Lewis, and Bruce Posnak, among …
International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatlole Boute, Steve Charnovitz, Sarah Mccalla, Nicholas Rivers, Elizabeth Whitsitt
International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatlole Boute, Steve Charnovitz, Sarah Mccalla, Nicholas Rivers, Elizabeth Whitsitt
Scholarly Publications
Reducing emissions of greenhouse gases will require the developing carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms, such as carbon pricing, must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio. This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international trade …
Abortion And Disgust, Courtney Megan Cahill
Abortion And Disgust, Courtney Megan Cahill
Scholarly Publications
This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its starting point is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a sufficiently strong association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be …
Transitive Counterparty Risk And Financial Contracts, Manuel A. Utset
Transitive Counterparty Risk And Financial Contracts, Manuel A. Utset
Scholarly Publications
No abstract provided.
Rational Criminal Addictions, Manuel A. Utset
Rational Criminal Addictions, Manuel A. Utset
Scholarly Publications
No abstract provided.
Canons To Create Ties And Canons To Break Them, Steve R. Johnson
Canons To Create Ties And Canons To Break Them, Steve R. Johnson
Scholarly Publications
The human spirit can be deeply stirred by art for its own sake, but there is special magic when the esthetic combines with the practical. It was in this sense that Charles W. Eliot, for decades president of Harvard University, once declared that he found great beauty in the shape of the handle of an American ax. In the same fashion, beauty resides in well-made statutory interpretation arguments.
Over the millennia, scores of principles of construction have evolved, all of them useful in the right contexts. Usually, more than one principle can plausibly be maintained to apply to the given …
Inchoate Crimes Revisited: A Behavioral Economics Perspective, Manuel A. Utset
Inchoate Crimes Revisited: A Behavioral Economics Perspective, Manuel A. Utset
Scholarly Publications
No abstract provided.
Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern
Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern
Scholarly Publications
No abstract provided.
Unheard Voices Of Domestic Violence Victims: A Call To Remedy Physician Neglect, Nat Stern, Karen Oehme, Ember Urbach
Unheard Voices Of Domestic Violence Victims: A Call To Remedy Physician Neglect, Nat Stern, Karen Oehme, Ember Urbach
Scholarly Publications
No abstract provided.
Trademark Owner As Adverse Possessor: Productive Use And Property Acquisition, Jake Linford
Trademark Owner As Adverse Possessor: Productive Use And Property Acquisition, Jake Linford
Scholarly Publications
There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. Neither approach fully recognizes that property regimes are multifaceted. A close look at the critical features of particular regimes can pay unexpected dividends.
This Article reveals how …
A Conservative Approach To Environmental Law: Be Data Driven, Shi-Ling Hsu
A Conservative Approach To Environmental Law: Be Data Driven, Shi-Ling Hsu
Scholarly Publications
No abstract provided.
Financial System Engineering, Manuel A. Utset
Financial System Engineering, Manuel A. Utset
Scholarly Publications
No abstract provided.
Towards A Moral Agency Theory Of The Shareholder Bylaw Power, Jay B. Kesten
Towards A Moral Agency Theory Of The Shareholder Bylaw Power, Jay B. Kesten
Scholarly Publications
Corporate bylaws are the new leading edge of a decades-long struggle between shareholders and managers over the allocation of decision-making authority in public companies. Bylaws are the only method by which shareholders can unilaterally restrict the powers and discretion of the board. Yet the scope of this statutory authority remains notoriously uncertain. Corporate law scholars generally agree that there is a limited domain in which shareholders can restrict managerial authority, but disagree on the appropriate boundary. The Delaware Supreme Court recently confronted this issue for the first time in CA, Inc. v. AFSCME Employees Pension Plan, but that decision …
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Scholarly Publications
The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …
The 'Things Of The Same Nature' Canon In State Tax Construction, Steve R. Johnson
The 'Things Of The Same Nature' Canon In State Tax Construction, Steve R. Johnson
Scholarly Publications
This installment of Interpretation Matters explores one of the most widely used canons of statutory construction: the ejusdem generis (“of the same kind or class”) principle. “If general words follow the enumeration of particular classes of things, the rule of ejusdem generis provides that the general words will be construed as applicable only to things of the same general nature as the enumerated things.”
To take a simple example, a statute prohibited persons placing on the streets “dirt, rubbish, wood, timber, or other material of any kind” tending to obstruct the streets. The …
An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler
An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler
Scholarly Publications
Did the divorce revolution betray the interests of American women? While there has been considerable disagreement about the impact of divorce reform on women’s standard of living, many agree that judicial practices involving the division of marital property and the allocation of alimony have systematically disadvantaged women. Most often, in the courts and the academy, commentators see these practices as evidence of the need for family law reform.
These conclusions rely on a shared account of the history of divorce reform. According to this account, the transformation of divorce law in the 1970s and 1980s was a “silent revolution,” a …
The Private Role In Public Fracturing Disclosure And Regulation, Hannah J. Wiseman
The Private Role In Public Fracturing Disclosure And Regulation, Hannah J. Wiseman
Scholarly Publications
Abstract: Recent domestic growth in oil and gas natural gas production from shales and sandstones called “tight” formations—largely enabled by a modified technology called slickwater hydraulic fracturing—has driven both economic growth and environmental concerns. Public concerns have often focused on the chemicals used in the fracturing process, yet federal regulations requiring disclosure of chemicals are weak. In the midst of initial “threats” of federal intervention, industry—along with state regulators—developed a website that enabled chemical disclosure. State regulations later mandated disclosure through this website, or allowed it as one option within a mandatory disclosure regime. Independently, gas companies also have begun …
The Role Of Politics In A Deliberative Model Of The Administrative State, Mark Seidenfeld
The Role Of Politics In A Deliberative Model Of The Administrative State, Mark Seidenfeld
Scholarly Publications
Since at least the mid-1980s, some scholars of United States administrative law have touted deliberative democracy as a promising theory to justify the modern administrative state. Those who advocate deliberative administration, however, have not easily incorporated the role of democratic politics into their models of that state.
This Article begins by reviewing the historical development of the most prevalent model of political influence on agencies—the presidential control model—and summarizes arguments supporting that model. It proceeds to criticize the presidential control model for failing to promote the goals of a deliberative regulatory state. It then presents deliberative justifications for the administrative …
Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan
Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan
Scholarly Publications
This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.