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Articles 31 - 60 of 107
Full-Text Articles in Law
Cute Prickly Critter With Presbyopia, Don Herzog
Cute Prickly Critter With Presbyopia, Don Herzog
Reviews
Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …
Feminist Legal Realism, Mae C. Quinn
Feminist Legal Realism, Mae C. Quinn
Journal Articles
This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …
Gazing Into The Future: The 100-Year Legacy Of Justice William J. Brennan, Stephen Wermiel
Gazing Into The Future: The 100-Year Legacy Of Justice William J. Brennan, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
Introduction: How should Justice William J. Brennan, Jr., be remembered in 2056, one hundred years after he joined the United States Supreme Court, or in 2090, one hundred years after he left it? There is no set convention for how we evaluate the success or failure, the greatness or mediocrity, of our Supreme Court Justices. This is the case even in their lifetimes, let alone decades later. Yet there are some constants in Brennan's legendary judicial career that may guide the way to evaluating his legacy.
Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera
Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera
Faculty Scholarship
No abstract provided.
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faculty Publications
The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …
Direct (Anti-)Democracy, Maxwell L. Stearns
Direct (Anti-)Democracy, Maxwell L. Stearns
Faculty Scholarship
Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken.
Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article …
Sealand, Havenco, And The Rule Of Law, James Grimmelmann
Sealand, Havenco, And The Rule Of Law, James Grimmelmann
Faculty Scholarship
In 2000, a group of American entrepreneurs moved to a former World War II anti-aircraft platform in the North Sea, seven miles off the British coast, and launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo's founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a "data haven" for unpopular speech, safely beyond the reach of any other …
New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill
New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill
UIC Law Open Access Faculty Scholarship
No abstract provided.
The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn
The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn
UIC Law Open Access Faculty Scholarship
Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the Court-created distinction between encouragement and compulsion (in opposition to Medicaid expansion), and the Court-created federalism concern when Congress regulates in a way that could destroy the distinction between what is national and what is local (in opposition to universal coverage).
But outside the jurisprudence, the text and history of constitutional federalism tell another story. The text and history suggest that the Constitution created a powerful federal government, of the people …
Random Chance Or Loaded Dice: The Politics Of Judicial Designation, Todd C. Peppers, Katherine Vigilante, Christopher Zorn
Random Chance Or Loaded Dice: The Politics Of Judicial Designation, Todd C. Peppers, Katherine Vigilante, Christopher Zorn
Scholarly Articles
Here, we take advantage of a unique characteristic of the procedures of the U.S. courts of appeals—the discretion held by chief judges to designate district court judges to three-judge appellate panels— to examine empirically the importance of oversight and judicial hierarchy on judges' behavior in those courts. Specifically, we examine the extent to which decisions about the policy preferences of designated judges vary systematically with the ideological tenor of the chief judge himself, the court as a whole, and the U.S. Supreme Court. More simply put, we ask: are district court judges selected to sit on appeals court panels simply …
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
All Faculty Scholarship
No abstract provided.
Using The Papers Of U.S. Supreme Court Justices: A Reflection, Stephen Wermiel
Using The Papers Of U.S. Supreme Court Justices: A Reflection, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
This essay examines the benefits and drawbacks of writing about the U.S. Supreme Court using the papers' of the Justices and how the work of Professor James F Simon highlights the benefits. The benefits are that the Justices' papers provide invaluable understanding of the Court's decisionmaking process, the influences that are significant, and how much substance actually matters. The papers shed light on why important legal doctrines developed in certain ways and what arguments held sway, identify rules that may be on thin ice in terms of underlying support, and show the nature of the working relationships among the Justices, …
Accentuate The Normative: A Response To Professor Mckenna, Jeremy N. Sheff
Accentuate The Normative: A Response To Professor Mckenna, Jeremy N. Sheff
Faculty Publications
In his article, “A Consumer Decision-Making Theory of Trade-mark Law,” 98 Va. L. Rev. 67 (2012), Professor Mark McKenna makes two significant claims. The first is that the dominant Law and Economics theory of trademark law—the search-costs theory of the Chicago School—is in some way connected to recent undesirable expansions of trademark rights. The second is that a preferable theory of trademark law—one that would result in more tightly circumscribed and socially beneficial notions of trademark rights—would take consumer decision making, rather than search costs, as its guiding principle. I find myself sympathetic to these arguments, and yet I believe …
Tax Reform DisCourse, Anthony C. Infanti
Tax Reform DisCourse, Anthony C. Infanti
Articles
Our tax system is supposed to serve the public good by fairly raising the revenue that we need to fund public expenditures — for example, the common defense, social safety net programs such as Social Security and Medicare, etc. But the tax reform debate has shifted away from discussing how best to distribute the burden of these common expenditures and instead has come to focus on how tax reform can be used to spur economic growth. Especially in times of economic crisis, these two goals — equitably funding public expenditures and spurring economic growth — sound equally important and somehow …
The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.
The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.
Articles
The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …
Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews
Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews
Faculty Working Papers
This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …
Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum
Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum
Faculty Scholarship
No abstract provided.
Senses Of Sen: Reflections On Amartya Sen’S Ideas Of Justice, César Arjona, Arif A. Jamal, Carrie Menkel-Meadow, Victor V. Ramraj, Francisco Satiro
Senses Of Sen: Reflections On Amartya Sen’S Ideas Of Justice, César Arjona, Arif A. Jamal, Carrie Menkel-Meadow, Victor V. Ramraj, Francisco Satiro
Faculty Papers & Publications
This review essay explores how Amartya Sen’s recent book, The Idea of Justice, is relevant and important for the development and assessment of transnational theories and applications to transnational justice and legal education programs. The essay captures a trans-jural dialogue of multinational scholars and teachers, discussing Sen’s contributions to moral justice theory (criticizing programs for “transcendental institutionalism” (like Rawlsian theory) and instead focusing on “comparative broadening” including empirical, relative, and comparative assessments of programs to ameliorate injustice in the world in its comparative concreteness (as in Indian social justice theory and Adam Smith’s Theory of Moral Sentiments and related …
A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber
A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber
Publications
No abstract provided.
The Market As A Legal Concept, Justin Desautels-Stein
The Market As A Legal Concept, Justin Desautels-Stein
Publications
In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images …
Race As A Legal Concept, Justin Desautels-Stein
Race As A Legal Concept, Justin Desautels-Stein
Publications
Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …
"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss
"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss
Publications
There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …
On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main
On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main
Scholarly Works
No abstract provided.
The Politics Of Hate, Robert Tsai
The Politics Of Hate, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …
Proximate Retribution, Meghan J. Ryan
Proximate Retribution, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender's conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of his victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article …
Why We Need A Progressive Account Of Violence, Aya Gruber
Why We Need A Progressive Account Of Violence, Aya Gruber
Publications
No abstract provided.
The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks
The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks
Publications
Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.
Aedpa Mea Culpa, Larry Yackle
Aedpa Mea Culpa, Larry Yackle
Faculty Scholarship
In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.
Legislating Inclusion, Lia Epperson
Legislating Inclusion, Lia Epperson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …