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Full-Text Articles in Law
Historical Gloss: A Primer, Alison Lacroix
Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat
Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat
Articles
Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, …
Comments On Law And Versteeg's 'The Declining Influence Of The United States Constitution', Tom Ginsburg, Zachary Elkins, James Melton
Comments On Law And Versteeg's 'The Declining Influence Of The United States Constitution', Tom Ginsburg, Zachary Elkins, James Melton
Articles
No abstract provided.
Picturing Takings, Lee Anne Fennell
Picturing Takings, Lee Anne Fennell
Articles
Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task offinding our way through it has become more difficult, and yet more interesting, with the Supreme Court's recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.
Becoming The Fifth Branch, William A. Birdthistle, M. Todd Henderson
Becoming The Fifth Branch, William A. Birdthistle, M. Todd Henderson
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No abstract provided.
Foreign Affairs Federalism And The Limits Of Executive Power, Zachary D. Clopton
Foreign Affairs Federalism And The Limits Of Executive Power, Zachary D. Clopton
Articles
No abstract provided.
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Articles
No abstract provided.
Forum Choice For Terrorism Suspects, Aziz Huq
Forum Choice For Terrorism Suspects, Aziz Huq
Articles
What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …
Binding The Executive (By Law Or By Politics), Aziz Huq
Binding The Executive (By Law Or By Politics), Aziz Huq
Articles
No abstract provided.
Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley
Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley
Articles
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone.1 In the opinion, Bradford concluded that “[s]o far . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or …
The Earned Income Tax Credit, Low-Income Workers, And The Legal Aid Community, Adam S. Chilton, Jonathan P. Schneller, Joshua L. Boehm
The Earned Income Tax Credit, Low-Income Workers, And The Legal Aid Community, Adam S. Chilton, Jonathan P. Schneller, Joshua L. Boehm
Articles
The Earned Income Tax Credit ("EITC") is the largest US. welfare program, with twenty-four million low-income Americans receiving $60 billion of disbursals in 2009. Through the EITC, working Americans with little or no tax liability can receive up to nearly $6, 000 in refundable tax credits each year. Over the past two decades, policymakers have increasingly favored the EITC over direct-transfer welfare programs, citing its lower administrative expense (as recipients "self-certify" by filing taxes) and incentives for recipients to work. Despite its political appeal, the EITC suffers deep structural flaws. Largely because EITC claimants have little guidance in navigating the …
Lumpy Property, Lee Anne Fennell
From Page To Practice: Corporations As Progressive Actors, Genevieve Lakier, Amalea Smirniotopoulos
From Page To Practice: Corporations As Progressive Actors, Genevieve Lakier, Amalea Smirniotopoulos
Articles
No abstract provided.
Was There Ever Such A Thing As Judicial Self-Restraint?, William M. Landes, Lee Epstein
Was There Ever Such A Thing As Judicial Self-Restraint?, William M. Landes, Lee Epstein
Articles
Richard Posner's version of judicial self-restraint implies that individual Justices who embrace restraint would tend to uphold the constitutionality of a law even if it went against their preferences or ideology. Judge Posner suggests that this form of restraint once existed but no longer does. Using a dataset of cases that considered the constitutionality offederal laws, we explore whether, in line with Judge Posner's hypothesis, the Court grew more activist (that is, more willing to strike laws) over the period between 1937 and 2009 and whether the ideological leanings of Justices, and not judicial self-restraint, better explain how they voted …
The Institution Matching Canon, Aziz Huq
The Institution Matching Canon, Aziz Huq
Articles
This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the "institution matching" canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of …
When Was Judicial Self-Restraint?, Aziz Huq
When Was Judicial Self-Restraint?, Aziz Huq
Articles
This Essay responds to Judge Posner's Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …
In Praise Of Realism (And Against 'Nonsense' Jurisprudence), Brian Leiter
In Praise Of Realism (And Against 'Nonsense' Jurisprudence), Brian Leiter
Articles
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a "Chicago School of antitheoretical, no-nonsense jurisprudence." Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair then, to describe Dworkin's own theory as an instance of protheoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. …
Deference To The Executive In The United States After September 11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Deference To The Executive In The United States After September 11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Articles
No abstract provided.
A Heartfelt, Albeit Largely Statistical, Salute To Judge Richard D. Cudahy, Richard A. Posner
A Heartfelt, Albeit Largely Statistical, Salute To Judge Richard D. Cudahy, Richard A. Posner
Articles
This Essay elaborates on Judge Cudahy's distinction as a judge and discusses our relationship and the broader issue of the management of disagreement, particularly ideological disagreement, in an appellate court. The Essay departs from the usual form of tribute essays by organizing its discussion around statistics and focusing on more general issues of judicial performance. These statistics reveal that Judge Cudahy has been an unusually prolific judge, penning separate opinions at a higher rate than his colleagues both nationwide and on the Seventh Circuit. The numbers also reveal that Judge Cudahy 's dissent rate has declined markedly over time. After …
Spatial Diversity, Nicholas Stephanopoulos
Spatial Diversity, Nicholas Stephanopoulos
Articles
Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept - "spatial diversity" - that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most …
Theory And Practice In Antitrust Law: Judge Cudahy's Example, Diane P. Wood
Theory And Practice In Antitrust Law: Judge Cudahy's Example, Diane P. Wood
Articles
When Richard D. Cudahy graduated from the Yale Law School, antitrust law in the United States was at its zenith. The US. Department of Justice was bringing ambitious lawsuits to break up global cartels in all kinds of product markets, and the Supreme Court had condemned a number of restraints between competitors as illegal per se. Times have changed, as this Essay demonstrates. More recently, the Court overruled a ninety-six-year-old rule condemning resale price maintenance as per se illegal, ruling that such arrangements would henceforth be judged by the more nuanced rule of reason. This decision represents the denouement of …
Costly Intellectual Property, Jonathan Masur, David Fagundes
Costly Intellectual Property, Jonathan Masur, David Fagundes
Articles
No abstract provided.
Legitimacy, 'Constitutional Patriotism,' And The Common Law Constitution, David A. Strauss
Legitimacy, 'Constitutional Patriotism,' And The Common Law Constitution, David A. Strauss
Articles
No abstract provided.
Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein
Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein
Articles
No abstract provided.
Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss
Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss
Articles
No abstract provided.
Are Even Unanimous Decisions In The United States Supreme Court Ideological?, Richard A. Posner, William M. Landes, Lee Epstein
Are Even Unanimous Decisions In The United States Supreme Court Ideological?, Richard A. Posner, William M. Landes, Lee Epstein
Articles
The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological-legalistic judicial institution.
Redistricting And The Territorial Community, Nicholas Stephanopoulos
Redistricting And The Territorial Community, Nicholas Stephanopoulos
Articles
As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional- but it has also rejected every standard suggested to date for distinguishing lawful fr
Access And The Public Domain, Randal C. Picker
The Duke Project On Custom And Law, Curtis A. Bradley, Mitu Gulati
The Duke Project On Custom And Law, Curtis A. Bradley, Mitu Gulati
Articles
No abstract provided.
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Articles
Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, accounts of how historical practice should inform the separation of powers often require “acquiescence” by the branch of government whose prerogatives the practice implicates. Such acquiescence …