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Articles 61 - 83 of 83
Full-Text Articles in Law
The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill
The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill
Faculty Scholarship
United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."
Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …
Incomplete Compensation For Takings, Thomas W. Merrill
Incomplete Compensation For Takings, Thomas W. Merrill
Faculty Scholarship
If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …
Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts
Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts
Faculty Scholarship
The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …
Educating Citizens, Peter L. Strauss
Educating Citizens, Peter L. Strauss
Faculty Scholarship
Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind.
Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann
Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann
Faculty Scholarship
The widespread use of cards is one of the most salient features of consumer retail payment systems in the United States. American consumers use those cards to pay for about one-fourth of their retail purchases each year. And this is not a static phenomenon; among other things, the use of debit cards, though still relatively small, is rising rapidly. That pattern of use is not, however, typical of other countries. Even in some highly industrialized nations, consumers use cards to pay for purchases much less frequently. Statistics from the Bank for International Settlements, for example, suggest about sixty card-based payment …
Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West
Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West
Faculty Scholarship
The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual statements it …
The Rise And Fall Of Article 2, Robert E. Scott
The Rise And Fall Of Article 2, Robert E. Scott
Faculty Scholarship
In August 13,2001 the National Conference of Commissioners on Uniform State Laws voted eighty-nine to fifty-three to reject the Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. The vote followed a last minute effort by the Article 2 drafting committee to amend the scope provisions of Article 2 in response to continuing criticism from representatives of the software and information industries. Several months later, at the request of the NCCUSL leadership, amended Article 2 with its revised scope provision was withdrawn from the agenda of the ALI …
Discretion In Long-Term Open Quantity Contracts: Reining In Good Faith, Victor P. Goldberg
Discretion In Long-Term Open Quantity Contracts: Reining In Good Faith, Victor P. Goldberg
Faculty Scholarship
Long-term contracts often promise to deliver the seller's full output, the buyer's requirements, or some variation on these. For example, an electric utility might enter into a thirty year contract with a coal mine promising that it will take all the coal needed to supply a particular generating plant. These open quantity contracts have raised two issues. The first is whether the promise was illusory. If the utility had no duty to take any coal, a court could have found that there was no consideration and, therefore, no contract. While there was a time when full output and requirements contracts …
Opting For Real Death Penalty Reform, James S. Liebman
Opting For Real Death Penalty Reform, James S. Liebman
Faculty Scholarship
The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …
"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr.
"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr.
Faculty Scholarship
A recurring fallacy in any debate over legal ethics or public policy is to assume that the particular problem under examination is unique and unprecedented. Expand one's field of vision, and precedents and analogs quickly turn up. This rule applies with special force to the debate over retention by state attorneys general of private counsel to represent them on a contingent fee basis in the recent litigation against the tobacco industry. Because this litigation produced a highly successful outcome, while most private litigation against the tobacco industry has not, some are led to the conclusion that this combination of private …
Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger
Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger
Faculty Scholarship
Liberalism has long been depicted as neutral and tolerant. Already in the eighteenth-century, when Englishmen and Americans began to develop modem conceptions of what they called "liberality," they characterized it as elevated above narrow interest and prejudice. Of course, liberality or what now is called "liberalism" can be difficult to define with precision, and there have been divergent, evolving versions of it. Nonetheless, liberalism has consistently been understood to transcend narrow self-interest or bigotry. Accordingly, many Americans have confidently believed in it as a neutral, tolerant, and even universalistic means of claiming freedom from the constraints of traditional and parochial …
Public Funds And The Regulation Of Judicial Campaigns, Richard Briffault
Public Funds And The Regulation Of Judicial Campaigns, Richard Briffault
Faculty Scholarship
Recent discussions of judicial election campaigns have been marked by two themes: (i) the growing costs of such campaigns, with concerns over the roles of large contributions and independent spending, the burden of fundraising for candidates, and the implications of campaign finance practices for judicial decision-making; and (ii) the changing nature of campaigning, as elections that were once “low-key affairs, conducted with civility and dignity,” have become increasingly politicized, marked by heated charges and sharp criticisms of the records and decisions of sitting judges. The two developments are surely intertwined, with the more bitter and hard-fought campaigns funded by rapidly …
Marital Commitment And The Legal Regulation Of Divorce, Elizabeth S. Scott
Marital Commitment And The Legal Regulation Of Divorce, Elizabeth S. Scott
Faculty Scholarship
The question of the appropriate role of law in regulating marriage and divorce is the subject of much controversy in the United States – a raging battle of the “Culture Wars” (Hunter, 1991). On one side are social conservatives, who view divorce and family instability as an important source of societal decline. These advocates of “family values” adopt a somewhat punitive tone, arguing that the family can be saved only if the government restricts divorce, by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. Liberals tend to oppose all restrictions on divorce, partly on the …
Patent Signals, Clarisa Long
Patent Signals, Clarisa Long
Faculty Scholarship
Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. While the literature has devoted an enormous amount of time, paper, and ink to the discussion of whether legal rules grant the optimal amount of exclusivity, it has not considered whether it has been examining all the functions of patents This Article provides a new general framework for analyzing the function and effect of intellectual property rules. Rather than focusing on patents as a mechanism for privatizing information, this Article instead frames …
The Future Of Reform: Campaign Finance After The Bipartisan Campaign Reform Act Of 2002, Richard Briffault
The Future Of Reform: Campaign Finance After The Bipartisan Campaign Reform Act Of 2002, Richard Briffault
Faculty Scholarship
On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA" or "the Act") into law. The culmination of a protracted six-year legislative and political struggle, BCRA is the most significant change in federal campaign finance law since the early 1970s, when the Federal Election Campaign Act ("FECA") of 1971 and FECA Amendments of 1974 were adopted. The Act addresses a broad range of campaign finance issues, including fundraising on federal property, contributions by foreign nationals, donations to the presidential inauguration committee, electronic filing and Internet access to campaign disclosure reports, and penalties for …
School Vouchers And Religious Liberty: Seven Questions From Madison's Memorial And Remonstrance, Vincent A. Blasi
School Vouchers And Religious Liberty: Seven Questions From Madison's Memorial And Remonstrance, Vincent A. Blasi
Faculty Scholarship
In the immediate aftermath of the Revolutionary War, many upstanding citizens of the fledgling state of Virginia were not pleased. They were, in fact, appalled by the decline they perceived in the state of public morals. Newspaper editorials, sermons, and speeches in public assemblies resounded with references to the recent upsurge in gambling, whoring, cockfighting, and public drunkenness. That such departures from the straight and narrow are not uncommon in postwar periods, following all the social dislocations of military mobilization, was no consolation to Virginians eager to show a doubting world that government by the people could work.
The root …
Owen Fiss, Equality Theory, And Judicial Role, Susan P. Sturm
Owen Fiss, Equality Theory, And Judicial Role, Susan P. Sturm
Faculty Scholarship
This essay uses Owen Fiss’ treatment of equality doctrine in “Groups and the Equal Protection Clause” to demonstrate the influence of judicial role conceptions on equality jurisprudence. Fiss’ conception of the judiciary’s role in elaborating and enforcing public norms profoundly shapes his articulation of the anti-subordination principle. More specifically, Fiss looks to the federal judiciary unilaterally to declare public law truths and to impose those truths on noncompliant bureaucrats. This static, almost imperial role places great pressure on the judiciary to adopt unitary equality norms that can be implemented, at least in theory, through top-down imposition. Fiss’ commitment to a …
Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel C. Richman
Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel C. Richman
Faculty Scholarship
One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken.
What's interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think "outside of the box" (which usually means proposing something interesting but really wrong or dangerous), I'd …
Racing Towards The Top?: The Impact Of Cross-Listing And Stock Market Competition On International Corporate Governance, John C. Coffee Jr.
Racing Towards The Top?: The Impact Of Cross-Listing And Stock Market Competition On International Corporate Governance, John C. Coffee Jr.
Faculty Scholarship
Cross-listing by foreign issuers onto U.S. exchanges accelerated during the 1990s, bringing international market centers into competition for listings and draining liquidity from some regional markets. Although cross-listing has traditionally been explained as an attempt to break down market segmentation and to increase investor recognition of the cross-listing firm, the globalization of financial markets and instantaneous electronic communications render these explanations increasingly dated. A superior explanation is "bonding": Issuers migrate to U.S. exchanges because by voluntarily subjecting themselves to the United States's higher disclosure standards and greater threat of enforcement (both by public and private enforcers), they partially compensate for …
Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.
Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.
Faculty Scholarship
What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.
The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard
The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard
Faculty Scholarship
The year in the title has finally arrived, and in Stanley Kubrick's classic film 2001: A Space Odyssey, the appearance of large monoliths marks important transitions in human civilization. In New York City, the construction, destruction and possible reconstruction of the twin monoliths of the World Trade Center also mark historical transitions. Among the things transformed with each event is our relationship to the physical environment.
Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland
Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland
Faculty Scholarship
Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises “only the powers granted to it” by the Constitution and those implied powers “necessary and proper” to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently …
Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss
Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss
Faculty Scholarship
Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …