Law Commons^™

The Duke Project On Custom And Law, Curtis A. Bradley, Mitu Gulati

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No abstract provided.

Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison

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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 …

Judicial Takings Or Due Process?, Lior Strahilevitz, Eduardo Peñalver

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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

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No abstract provided.

The Constitutional Conservatism Of The Warren Court, Justin Driver

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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

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Aggregation And Law, Ariel Porat, Eric A. Posner

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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

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The Politics Of Incivility, Bernard E. Harcourt

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Absolute Preferences And Relative Preferences In Property Law, Lior Strahilevitz

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Beyond Doma: Choice Of State Law In Federal Statutes, William Baude

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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

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No abstract provided.

The Rise And Fall Of Judicial Self-Restraint, Richard A. Posner

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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

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Dialogue With Federal Judges On The Role Of History In Interpretation, Diane P. Wood, Frank H. Easterbrook, Jeffrey S. Sutton, Reena Raggi

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Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein

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No abstract provided.

Delegation In Immigration Law, Eric A. Posner, Adam B. Cox

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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

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No abstract provided.

Showcase Panel Iv: A Federal Sunset Law, Frank H. Easterbrook, William N. Eskridge Jr., Philip K. Howard, Thomas W. Merrill

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No abstract provided.

Talk About Talking About Constitutional Law, Adam M. Samaha

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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 …

Erie As A Choice Of Enforcement Defaults, Sergio J. Campos

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The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure a state court would use. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie doctrine provides little guidance. This Article argues that the Erie doctrine is best understood as governing a choice of enforcement defaults. As argued below, the primary function of civil liability is to protect a substantive entitlement to avoid the legal violation, either directly through specific …

The Natural Law Bridge Between Private Law And Public International Law, Richard A. Epstein

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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

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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

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No abstract provided.

Recognizing Race, Justin Driver

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The Romance Of Force: James Fitzjames Stephen On Criminal Law, Richard A. Posner

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No abstract provided.

Dealing With Overcrowding In Prisons: Contrasting Judicial Approaches From The Usa And Ireland., Mary Rogan

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Two recent decisions, one given by the Supreme Court of the United States of America and one of the Irish High Court, address the consequences of overcrowding in prisons. In Brown, Governor of California et at v. Plata et al1 (hereinafter Plata) the US Supreme Court upheld a decision of a three judge federal court requiring the State of California to reduce its prison population to 137.5% of the prison system’s design capacity, requiring the release of up to 46,000 prisoners. The Court agreed that the overcrowding in the Californian prison system had caused the breach of prisoners’ rights under …

Improving Criminal Justice Data And Policy, Mary Rogan

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Criminal justice policy in Ireland is often criticised for lacking a robust evidence base.

Increased knowledge about crime and criminal justice may act to enrich all types of criminological enquiry and policy formation. This paper explores the potential of large population registries, similar to those created in the health sector, to inform criminal justice policymaking. The paper looks at the importance of such data collection for criminal justice research and policy and the potential hurdles to its development.

The U.S. Sentencing Commission's Best Response To Booker Is To Do Nothing, Michael Tonry

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No abstract provided.

Crawford V. Washington: What Would Justice Thomas Do?, Brad Clary

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No abstract provided.