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Full-Text Articles in Law
Judicial Takings Or Due Process?, Lior Strahilevitz, Eduardo Peñalver
Judicial Takings Or Due Process?, Lior Strahilevitz, Eduardo Peñalver
Articles
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court concluded that the Takings Clause of the U.S. Constitution prohibits the judiciary from declaring that "what was once an established right of private property no longer exists" unless the property owner in question receives just compensation. In this Article, we delineate the boundaries between a judicial taking and a violation of the Constitution's due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach. Our argument proceeds in …
Constitutional Ratemaking And The Affordable Care Act: A New Source Of Vulnerability, Richard A. Epstein, Paula M. Stannard
Constitutional Ratemaking And The Affordable Care Act: A New Source Of Vulnerability, Richard A. Epstein, Paula M. Stannard
Articles
No abstract provided.
The Constitutional Conservatism Of The Warren Court, Justin Driver
The Constitutional Conservatism Of The Warren Court, Justin Driver
Articles
Scholarly debate about the Warren Court casts a long shadow over modern constitutional law. The essential contours of this debate have now grown exceedingly familiar: where liberal law professors overwhelmingly heap praise upon the Warren Court, conservatives generally heap contempt. Although some liberals have begun contending that the Warren Court overstepped the bounds of judicial propriety, such concessions do not reconfigure the debate's fundamental terms. Conspicuously absent from scholarly discourse to date, however, is a sustained liberal argument contending that the Warren Court made substantial mistakes-not by going excessively far, but by going insufficiently far in its constitutional interpretations. This …
Options For Owners And Outlaws, Lee Anne Fennell
Aggregation And Law, Ariel Porat, Eric A. Posner
Aggregation And Law, Ariel Porat, Eric A. Posner
Articles
If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and neither of them alleges misconduct sufficient to justify a remedy, the plaintiff will usually lose, even if the claims jointly allege sufficient wrongdoing to justify a remedy. Thus, as a general rule, courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the …
Public Choice And Law's Either/Or Inclination (Reviewing Leo Katz, Why The Law Is So Perverse (2011)), Saul Levmore
Public Choice And Law's Either/Or Inclination (Reviewing Leo Katz, Why The Law Is So Perverse (2011)), Saul Levmore
Articles
No abstract provided.
The Politics Of Incivility, Bernard E. Harcourt
Absolute Preferences And Relative Preferences In Property Law, Lior Strahilevitz
Absolute Preferences And Relative Preferences In Property Law, Lior Strahilevitz
Articles
No abstract provided.
Beyond Doma: Choice Of State Law In Federal Statutes, William Baude
Beyond Doma: Choice Of State Law In Federal Statutes, William Baude
Articles
The Defense of Marriage Act (DOMA) has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married. But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state’s law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state …
Regulation, Unemployment, And Cost-Benefit Analysis, Jonathan Masur, Eric A. Posner
Regulation, Unemployment, And Cost-Benefit Analysis, Jonathan Masur, Eric A. Posner
Articles
No abstract provided.
The Rise And Fall Of Judicial Self-Restraint, Richard A. Posner
The Rise And Fall Of Judicial Self-Restraint, Richard A. Posner
Articles
Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant restraint in invalidating legislative action as unconstitutional-as advocated by the "School of Thayer, " consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory …
Can Originalism Be Saved?, David A. Strauss
Dialogue With Federal Judges On The Role Of History In Interpretation, Diane P. Wood, Frank H. Easterbrook, Jeffrey S. Sutton, Reena Raggi
Dialogue With Federal Judges On The Role Of History In Interpretation, Diane P. Wood, Frank H. Easterbrook, Jeffrey S. Sutton, Reena Raggi
Articles
No abstract provided.
Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein
Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein
Articles
No abstract provided.
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Articles
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information intensive because the migrant's "type" and the migrant's post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulating functions. American immigration law, for example, delegates extensive authority to both private entities--paradigmatically, employers and families-and to the fifty states. From the government's perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about …
Rethinking Ponzi-Scheme Remedies In And Out Of Bankruptcy, Saul Levmore
Rethinking Ponzi-Scheme Remedies In And Out Of Bankruptcy, Saul Levmore
Articles
No abstract provided.
Showcase Panel Iv: A Federal Sunset Law, Frank H. Easterbrook, William N. Eskridge Jr., Philip K. Howard, Thomas W. Merrill
Showcase Panel Iv: A Federal Sunset Law, Frank H. Easterbrook, William N. Eskridge Jr., Philip K. Howard, Thomas W. Merrill
Articles
No abstract provided.
Talk About Talking About Constitutional Law, Adam M. Samaha
Talk About Talking About Constitutional Law, Adam M. Samaha
Articles
Constitutional theory branches into decision theory and discourse theory. The former branch concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed, For its part, originalism initially was promoted as a method for resolving constitutional disagreement, but it has spread into discourse theory as well. Jack Balkin's "living originalism" illustrates this extension. This Article examines inclusive versions of originalism like Balkin's that permit many different answers to constitutional questions. The Article then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse …
The Natural Law Bridge Between Private Law And Public International Law, Richard A. Epstein
The Natural Law Bridge Between Private Law And Public International Law, Richard A. Epstein
Articles
One keg similarity between natural law and international law is that they seek to obtain a stable social order without the intervention of any state authority capable of issuing and enforcing its commands to those subject to its rule. Among ordinary individuals in a state of nature that weakness tends to lead to a stripped-down libertarian regime that features simple rules of acquisition, contract, and protection. The system gains its relative stability from the brute fact that between rough equals the part in the defensive posture will win out, so that great disparities in power are needed to disrupt the …
Structural Constitutionalism As Counterterrorism, Aziz Huq
Structural Constitutionalism As Counterterrorism, Aziz Huq
Articles
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution's Separation of Powers. These "structural constitutional presumptions" serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals …
Preserving Political Speech From Ourselves And Others, Aziz Huq
Preserving Political Speech From Ourselves And Others, Aziz Huq
Articles
No abstract provided.
Recognizing Race, Justin Driver
The Romance Of Force: James Fitzjames Stephen On Criminal Law, Richard A. Posner
The Romance Of Force: James Fitzjames Stephen On Criminal Law, Richard A. Posner
Articles
No abstract provided.
Title Vii: A Shift From Sex To Relationships, Victoria Schwartz
Title Vii: A Shift From Sex To Relationships, Victoria Schwartz
Articles
No abstract provided.
The Property Rights Decisions Of Justice Sandra Day O'Connor: When Pragmatic Balancing Is Not Enough, Richard A. Epstein
The Property Rights Decisions Of Justice Sandra Day O'Connor: When Pragmatic Balancing Is Not Enough, Richard A. Epstein
Articles
No abstract provided.
The Gap In Law Between Developmental Expectations And Educational Obligations, Emily Buss
The Gap In Law Between Developmental Expectations And Educational Obligations, Emily Buss
Articles
No abstract provided.
Federalists, Federalism, And Federal Jurisdiction, Alison Lacroix
Federalists, Federalism, And Federal Jurisdiction, Alison Lacroix
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No abstract provided.
Clarification Needed: Fixing The Jurisdiction Venue And Clarification Act, William Baude
Clarification Needed: Fixing The Jurisdiction Venue And Clarification Act, William Baude
Articles
No abstract provided.
Executive Foreign Policy And The States: Recent Developments, Zachary D. Clopton
Executive Foreign Policy And The States: Recent Developments, Zachary D. Clopton
Articles
No abstract provided.
Book Review (Reviewing Charles R. Beitz, The Idea Of Human Rights), Adam S. Chilton
Book Review (Reviewing Charles R. Beitz, The Idea Of Human Rights), Adam S. Chilton
Articles
No abstract provided.