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Full-Text Articles in Law

Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan D. Doerfler Dec 2014

Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan D. Doerfler

Journal Articles

In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court explained that, within the domain of unclear agency-administered statutes, a federal court is subordinate to an administering agency. When an administering agency


Trial Court Budgets, The Enforcer's Dilemma, And The Rule Of Law, Scott Baker, Anup Malani Dec 2014

Trial Court Budgets, The Enforcer's Dilemma, And The Rule Of Law, Scott Baker, Anup Malani

Journal Articles

No abstract provided.


Rules Against Rulification, Michael Coenen Dec 2014

Rules Against Rulification, Michael Coenen

Journal Articles

The Supreme Court often confronts the choice between bright-line rules and open-ended standards — a point well understood by commentators and the Court itself. Far less understood is a related choice that arises once the Court has opted for a standard over a rule: May lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several recent cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.” Rules ...


Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis Nov 2014

Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis

Journal Articles

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or ...


Sharing The Necessary And Proper Clause, William Baude Nov 2014

Sharing The Necessary And Proper Clause, William Baude

Journal Articles

No abstract provided.


Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith Nov 2014

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The ...


Guarding The Subjective Premium: Condemnation Risk Discounts In The Housing Market, Sebastien Gay, Nadia Nasser-Ghodsi Nov 2014

Guarding The Subjective Premium: Condemnation Risk Discounts In The Housing Market, Sebastien Gay, Nadia Nasser-Ghodsi

Journal Articles

No abstract provided.


Redeeming Bond?, Alison Lacroix Nov 2014

Redeeming Bond?, Alison Lacroix

Journal Articles

No abstract provided.


Reaching Backward And Stretching Forward: Teaching For Transfer In Law School Clinics, Shaun Archer, James Parry Eyster, James J. Kelly Jr., Tonya Kowalski, Colleen F. Shanahan Nov 2014

Reaching Backward And Stretching Forward: Teaching For Transfer In Law School Clinics, Shaun Archer, James Parry Eyster, James J. Kelly Jr., Tonya Kowalski, Colleen F. Shanahan

Journal Articles

In thinking about education, teachers may spend more time considering what to teach than how to teach. Unfortunately, traditional teaching techniques have limited effectiveness in their ability to help students retain and apply the knowledge either in later classes or in their professional work. What, then, is the value of our teaching efforts if students are unable to transfer the ideas and skills they have learned to later situations?

Teaching for transfer is important to the authors of this article, four clinical professors and one psychologist. The purpose of this article is to provide an introduction to some of the ...


The Scope Of Precedent, Randy J. Kozel Nov 2014

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not ...


The Negotiated Structural Constitution, Aziz Huq Oct 2014

The Negotiated Structural Constitution, Aziz Huq

Journal Articles

No abstract provided.


Forcings, Lee Anne Fennell Oct 2014

Forcings, Lee Anne Fennell

Journal Articles

No abstract provided.


Offsetting Benefits, Ariel Porat, Eric A. Posner Oct 2014

Offsetting Benefits, Ariel Porat, Eric A. Posner

Journal Articles

No abstract provided.


The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey Oct 2014

The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey

Journal Articles

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It ...


From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis Oct 2014

From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis

Journal Articles

This Article builds on efforts to promote urban agriculture and remove legal and practical obstacles to its development. Specifically, we explore concerns regarding land tenure. Urban agriculture development can be retarded by uncertainties in landownership and agriculturalists’ land rights. We explore property tools that could be helpful to urban agriculturalists (both farmers and gardeners). One thing we learned quickly in our research is that the challenges (and therefore the most helpful tools) vary greatly by place. For this reason, we present examples of urban agriculture efforts across the United States to demonstrate the varying challenges that jurisdictions face and to ...


Improving Patent Quality With Applicant Incentives, Stephen Yelderman Oct 2014

Improving Patent Quality With Applicant Incentives, Stephen Yelderman

Journal Articles

This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive ...


Auctioning Class Settlements, Jay Tidmarsh Oct 2014

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...


Wilderness Exceptions, John Copeland Nagle Oct 2014

Wilderness Exceptions, John Copeland Nagle

Journal Articles

This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a ...


Interpreting Secretary Perkins, Barry Cushman Oct 2014

Interpreting Secretary Perkins, Barry Cushman

Journal Articles

This essay is my contribution to an exchange with Professor Daniel R. Ernst of Georgetown University Law Center concerning the timing of a visit by Chief Justice Hughes and his wife to the Pennsylvania summer home of Justice Owen Roberts. In the 1950s, former Secretary of Labor Frances Perkins recounted in the oral history interview she gave to Columbia University that Mrs. Roberts had reported to her that Hughes and Roberts had held extended, private conversations during that visit. It has been argued by some scholars that the visit took place during the summer of 1936, shortly after the Court ...


“All Good Things Flow . . . ”: Rule Of Law, Public Goods, And The Divided American Metropolis, James J. Kelly Jr. Oct 2014

“All Good Things Flow . . . ”: Rule Of Law, Public Goods, And The Divided American Metropolis, James J. Kelly Jr.

Journal Articles

This essay is a review of and a response to Urban Decay, Austerity, and Rule of Law, an article written by Brent White, Simone Sepe, and Saura Masconale. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. White, Sepe, and Masconale offer their theory as a “make ‘gov’ not war” alternative to the Broken Windows Theory, which underlies ordermaintenance policing strategies. In the final section of the piece, the authors ...


A False Sense Of Security: Due Process Failures In Removal Proceedings, Darlene Goring Oct 2014

A False Sense Of Security: Due Process Failures In Removal Proceedings, Darlene Goring

Journal Articles

The article explores the reasons for the failure of due process rights afforded by aliens facing criminal prosecution for unauthorized return to the U.S. after prior removal proceedings. Topics discussed include Federal enforcement of the Immigration and Nationality Act, laws governing criminal prosecution and incarceration for previously removed aliens, and disclosure of the availability of judicial review to aliens facing removal from the U.S.


Seeing It Coming Since 1945: State Bans And Regulations Of Crafty Sciences Speech And Activity, Christine Corcos Oct 2014

Seeing It Coming Since 1945: State Bans And Regulations Of Crafty Sciences Speech And Activity, Christine Corcos

Journal Articles

No abstract provided.


Hydraulic Fracturing: If Fractures Cross Property Lines Is There An Actionable Subsurface Trespass?, Keith B. Hall Oct 2014

Hydraulic Fracturing: If Fractures Cross Property Lines Is There An Actionable Subsurface Trespass?, Keith B. Hall

Journal Articles

The law recognizes trespass liability for subsurface intrusions, at least in some circumstances. Further, courts sometimes have stated that ownership of land extends to the earth's center. But such statements are dicta. Few courts have carefully considered the maximum extent of subsurface ownership or subsurface trespass liability. Courts in two jurisdictions have recently addressed whether a person incurs liability when he causes hydraulic fracturing fluid to intrude into the subsurface of a neighbor's land, but the courts reached opposite conclusions, with each suggesting that public policy supported its position. Neither adequately examined the legal issues. Careful consideration of ...


Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara Fick Sep 2014

Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara Fick

Journal Articles

This article addresses the concept of corporate social responsibility (hereinafter CSR) as it relates to labor rights. It considers the following issues: is the CSR model, as evidenced by the adoption of corporate codes of conduct, effective in protecting labor rights?; and is this model the best way to protect labor rights? These issues are examined from two perspectives: practical and philosophical. Lastly, some alternative enforcement mechanisms are considered and their respective advantages and disadvantages for purposes of ensuring labor rights are discussed.


Just, Smart: Civil Rights Protections And Market-Sensitive Vacant Property Strategies, James J. Kelly Jr. Sep 2014

Just, Smart: Civil Rights Protections And Market-Sensitive Vacant Property Strategies, James J. Kelly Jr.

Journal Articles

This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement ...


A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith Aug 2014

A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith

Journal Articles

The dangers of “overcriminalization” are widely appreciated across the political spectrum, but confusion remains as to its cause. Standard critiques fault legislatures alone. The problem, however, is not simply that too many criminal laws are on the books, but that they are poorly defined in ways that give unwarranted sweep to the criminal law, raising the danger of punishment absent or in excess of moral blameworthiness. Instead of narrowing ambiguous criminal laws to more appropriate bounds, courts frequently expand them, even when this ratchets up the punishment that offenders face, and fail to insist on proof of sufficiently culpable states ...


An Off-Label Use Of Parental Rights? The Unanticipated Doctrinal Antidote For Professor Mnookin's Diagnosis, Emily Buss Jul 2014

An Off-Label Use Of Parental Rights? The Unanticipated Doctrinal Antidote For Professor Mnookin's Diagnosis, Emily Buss

Journal Articles

No abstract provided.


Back To The Basics Of Erie, Diane P. Wood Jul 2014

Back To The Basics Of Erie, Diane P. Wood

Journal Articles

No abstract provided.


Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Dawood I. Ahmed, Tom Ginsburg Jul 2014

Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Dawood I. Ahmed, Tom Ginsburg

Journal Articles

No abstract provided.


Supplying Compliance: Why And When The Us Complies With Wto Rulings, Adam S. Chilton, Rachel Brewster Jul 2014

Supplying Compliance: Why And When The Us Complies With Wto Rulings, Adam S. Chilton, Rachel Brewster

Journal Articles

No abstract provided.