Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Journal Articles

2013

Articles 1 - 30 of 222

Full-Text Articles in Law

Patent Invalidity Versus Noninfringement, Roger Ford Nov 2013

Patent Invalidity Versus Noninfringement, Roger Ford

Journal Articles

No abstract provided.


Standing For The Structural Constitution, Aziz Huq Nov 2013

Standing For The Structural Constitution, Aziz Huq

Journal Articles

No abstract provided.


Becoming A Fifth Branch, M. Todd Henderson, William A. Birdthistle Nov 2013

Becoming A Fifth Branch, M. Todd Henderson, William A. Birdthistle

Journal Articles

No abstract provided.


Recent Developments In Hydraulic Fracturing Regulation And Litigation, Keith B. Hall Oct 2013

Recent Developments In Hydraulic Fracturing Regulation And Litigation, Keith B. Hall

Journal Articles

No abstract provided.


Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll Oct 2013

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Journal Articles

The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S.


Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood Oct 2013

Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood

Journal Articles

No abstract provided.


Beyond Insolvency, Vincent Buccola Oct 2013

Beyond Insolvency, Vincent Buccola

Journal Articles

No abstract provided.


Animal Frontiers: A Tale Of Three Zoos In Israel/Palestine, Irus Braverman Oct 2013

Animal Frontiers: A Tale Of Three Zoos In Israel/Palestine, Irus Braverman

Journal Articles

Situated within fifty miles of each other at the heart of Israel-Palestine, three zoos — Jerusalem, Qalqilya, and Gaza — tell three very different stories about nonhuman animals, humans, and their imbricated survival across borders and at times of war. Through in-depth interviews with personnel from these three zoos, this article tracks the material and symbolic identities of three zoo animals. Yet the article is not just about animals; it is also a story about nationalism and its clandestine manifestations in ideologies of conservation. I argue here that alongside the straightforward story about sustaining wildlife, Israeli zoos’ control of zoo animals is ...


The Boundaries Of The Moral (And Legal) Community, Brian Leiter Sep 2013

The Boundaries Of The Moral (And Legal) Community, Brian Leiter

Journal Articles

No abstract provided.


Advertisements Impact The Physiological Efficacy Of A Branded Drug, Emir Kamenica, Robert Naclerio, Anup Malani Aug 2013

Advertisements Impact The Physiological Efficacy Of A Branded Drug, Emir Kamenica, Robert Naclerio, Anup Malani

Journal Articles

No abstract provided.


Mock Trials And Real Justices And Judges, Richard A. Posner Aug 2013

Mock Trials And Real Justices And Judges, Richard A. Posner

Journal Articles

No abstract provided.


Constitutional Privileging, Michael Coenen Jun 2013

Constitutional Privileging, Michael Coenen

Journal Articles

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment — in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more easily ...


Happiness Institutions, Jennifer Nou Jun 2013

Happiness Institutions, Jennifer Nou

Journal Articles

No abstract provided.


We The People, They The People, And The Puzzle Of Democratic Constitutionalism, David A. Strauss Jun 2013

We The People, They The People, And The Puzzle Of Democratic Constitutionalism, David A. Strauss

Journal Articles

No abstract provided.


The Priority Of Persons Revisited, John Finnis Jun 2013

The Priority Of Persons Revisited, John Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood ...


Agency Self-Insulation Under Presidential Review, Jennifer Nou May 2013

Agency Self-Insulation Under Presidential Review, Jennifer Nou

Journal Articles

Agencies possess enormous regulatory discretion. This discretion allows executive branch agencies in particular to insulate their decisions from presidential review by raising the costs of such review. They can do so, for example, through variations in policymaking form, cost-benefit analysis quality, timing strategies, and institutional coalition-building. This Article seeks to help shift the literature's focus on courtcentered agency behavior to consider instead the role of the President under current executive orders. Specifically, the Article marshals public-choice insights to offer an analytic framework for what it calls agency self-insulation under presidential review, illustrates the phenomenon, and assesses some normative implications ...


Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco May 2013

Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Journal Articles

Cost-benefit analysis (CBA) is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates significant systemic errors. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from studies in the field of hedonic psychology that track people's actual ...


Toward A Positive Theory Of Privacy Law, Lior Strahilevitz May 2013

Toward A Positive Theory Of Privacy Law, Lior Strahilevitz

Journal Articles

No abstract provided.


The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein May 2013

The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein

Journal Articles

No abstract provided.


Not Unwritten, After All? (Reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents And Principles We Live By (2012)), David A. Strauss Apr 2013

Not Unwritten, After All? (Reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents And Principles We Live By (2012)), David A. Strauss

Journal Articles

No abstract provided.


Tiers Of Scrutiny In Enumerated Powers Jurisprudence, Aziz Huq Apr 2013

Tiers Of Scrutiny In Enumerated Powers Jurisprudence, Aziz Huq

Journal Articles

This Article identifies and analyzes the recent emergence of a "tiers of scrutiny" system in Supreme Court jurisprudence respecting the boundaries of Congress's enumerated powers. The inquiry is motivated by the Court's recent ruling on the federal healthcare law, which demonstrated that the national legislature's election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power's substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article ...


Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq Apr 2013

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq

Journal Articles

No abstract provided.


The Problem Of Resource Access, Lee Anne Fennell Apr 2013

The Problem Of Resource Access, Lee Anne Fennell

Journal Articles

The Coasean insight that transaction costs stand between the world as we know it and an ideal of perfect efficiency has provided generations of law and economics scholars with an analytic North Star But for legal scholars interested in the efficiency implications of property arrangements, transaction costs turn out to constitute an unhelpful category. Transaction costs are related to property rights in unstable and contested ways, and they comprise a heterogeneous set of impediments, not all of which are amenable to cost-effective reduction through law. Theating them as focal confuses the cause of our difficulties in structuring access to resources ...


Collaborative Departmentalism, Matthew Steilen Apr 2013

Collaborative Departmentalism, Matthew Steilen

Journal Articles

This article examines the effect of departmentalism on presidential compliance with constitutional law. Most commentators agree that departmentalism weakens the influence of courts in the determination of constitutional meaning and the control of non-judicial actors. The article takes a different view. It defines “moderate departmentalism” as the authority of the President to refuse to adopt a constitutional interpretation announced by the Supreme Court. Drawing on ideas developed in the literature on “new governance” and administrative law, it then argues that moderate departmentalism increases the capacity of the federal courts to control presidential conduct.


Policy Preferences And Legal Interpretation, Anup Malani, Ward Farnsworth, Dustin F. Guzior Mar 2013

Policy Preferences And Legal Interpretation, Anup Malani, Ward Farnsworth, Dustin F. Guzior

Journal Articles

No abstract provided.


Is Texas Hold 'Em A Game Of Chance? A Legal And Economic Analysis, Thomas J. Miles, Steven Levitt, Andrew M. Rosenfield Mar 2013

Is Texas Hold 'Em A Game Of Chance? A Legal And Economic Analysis, Thomas J. Miles, Steven Levitt, Andrew M. Rosenfield

Journal Articles

In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or luck is the "dominant factor" in the game. We argue that courts' conception of a dominant factor— whether chance swamps the effect of skill in playing a single hand of poker—is unduly narrow. We develop four alternative tests to distinguish the impact of skill ...


Book Review (Reviewing Jack M. Balkin, Living Originalism (2011)), David A. Strauss Mar 2013

Book Review (Reviewing Jack M. Balkin, Living Originalism (2011)), David A. Strauss

Journal Articles

No abstract provided.


The Social Production Of National Security, Aziz Huq Mar 2013

The Social Production Of National Security, Aziz Huq

Journal Articles

This Article analyzes a recent policy innovation offered by governments on both sides of the Atlantic as a means of mitigating one form of national security risk: the idea that private individuals and voluntary associations have an untapped capacity for combating terrorism and in particular al Qaeda. Bold assertions in recent strategy statements mooting this possibility have wanted for any supporting account of how private behavior conduces to security. Even if the claimed social production of security against terrorism is causally well-founded, it is unclear how the state can elicit desirable private conduct. Consequently, the proposal's legal and policy ...


Our Electoral Exceptionalism, Nicholas Stephanopoulos Mar 2013

Our Electoral Exceptionalism, Nicholas Stephanopoulos

Journal Articles

Election law suffers from a comparative blind spot. Scholars in the field have devoted almost no attention to how other countries organize their electoral systems, let alone to the lessons that can be drawn from foreign experiences. This Article begins to fill this gap by carrying out the first systematic analysis of redistricting practices around the world. The Article initially separates district design into its three constituent components: institutions, criteria, and minority representation. For each component, the Article then describes the approaches used in America and abroad, introduces a new conceptual framework for classifying different policies, and challenges the exceptional ...


Raising The Stakes In Patent Cases, Anup Malani, Jonathan Masur Mar 2013

Raising The Stakes In Patent Cases, Anup Malani, Jonathan Masur

Journal Articles

No abstract provided.