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Full-Text Articles in Law

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 ...


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.


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 ...


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.


Why Retributivism Needs Consequentialism: The Rightful Place Of Revenge In The Criminal Justice System, Ken Levy Jul 2014

Why Retributivism Needs Consequentialism: The Rightful Place Of Revenge In The Criminal Justice System, Ken Levy

Journal Articles

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t? This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to ...


Tipping The Scales In Favor Of Charitable Bequests: A Critique, Elizabeth Carter Jul 2014

Tipping The Scales In Favor Of Charitable Bequests: A Critique, Elizabeth Carter

Journal Articles

This paper considers the public policy favoring testamentary bequests to charity and offers a critique of that policy. Public policy favors testamentary bequests to charity. At least, that is the claim of numerous courts and legislative bodies. The policy favoring charitable bequests may tip the scales in deciding the proper interpretation of a will or the merits of an undue influence, incapacity, or tortuous interference with inheritance claim. Paradoxically, courts and legislative bodies rarely discuss the source of this public policy. Nor do they inquire into the wisdom of the policy. They should.


Dynamic Forest Federalism, Blake Hudson Jul 2014

Dynamic Forest Federalism, Blake Hudson

Journal Articles

State and local governments have long maintained regulatory authority to manage natural resources, and most subnational governments have politically exercised that authority to some degree. Policy makers, however, have increasingly recognized that the dynamic attributes of natural resources make them difficult to manage on any one scale of government. As a result, the nation has shifted toward multilevel governance known as “dynamic federalism” for many if not most regulatory subject areas, especially in the context of the natural environment. The nation has done so both legally and politically — the constitutional validity of expanded federal regulatory authority over resources has consistently ...


Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski Apr 2014

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Journal Articles

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as ...


What Is Troubling About The Tortification Of Employment Discrimination Law?, William Corbett Jan 2014

What Is Troubling About The Tortification Of Employment Discrimination Law?, William Corbett

Journal Articles

No abstract provided.


An Outrageous Response To "You're Fired!", William Corbett Jan 2014

An Outrageous Response To "You're Fired!", William Corbett

Journal Articles

No abstract provided.


Morphing Case Boundaries In Multidistrict Litigation Settlements, Margaret S. Thomas Jan 2014

Morphing Case Boundaries In Multidistrict Litigation Settlements, Margaret S. Thomas

Journal Articles

The boundaries of federal multidistrict litigation (MDL) are blurring, as district courts seek innovative ways to facilitate global settlements to resolve multzjurisdictional, multidimensional, national mass torts. The techniques emerging from the district courts have mostly evaded appellate review and received little scholarly attention, but they raise important challenges to traditional understandings of the nature of MDL and complex litigation. This Article argues that factually similar cases proceeding in multiple court systems in mass tort disputes create a ''federalism problem "for global settlements: global settlements typically benefit from oversight by a single judge, but often there is no single judge who ...


A Response To Professor Leff’S Tax Planning “Olive Branch” For Marijuana Dealers, Philip T. Hackney Jan 2014

A Response To Professor Leff’S Tax Planning “Olive Branch” For Marijuana Dealers, Philip T. Hackney

Journal Articles

No abstract provided.


Institutional Preconditions For Policy Success, Blake Hudson Jan 2014

Institutional Preconditions For Policy Success, Blake Hudson

Journal Articles

Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure. Yet, lessons learned from policy failures are necessarily ex post observations. Not only has the policy failed to achieve its purposes, but a great deal of political, institutional, temporal, and economic capital has been wasted. A new body of literature on policy success undertakes ex ante analysis of successful policy designs, instrument choices, and other policy-making variables to establish a framework for more effective policy making. Though policy success may be inhibited by a variety of procedural, programmatic, or political factors, institutional ...


The Anomalous Interaction Between Code And Statute--Lessor's Warranty And Statutory Waiver, Melissa T. Lonegrass Jan 2014

The Anomalous Interaction Between Code And Statute--Lessor's Warranty And Statutory Waiver, Melissa T. Lonegrass

Journal Articles

No abstract provided.


A Second Chance For Innovation--Foreign Inspiration For The Revised Uniform Residential Landlord And Tenant Act, Melissa T. Lonegrass Jan 2014

A Second Chance For Innovation--Foreign Inspiration For The Revised Uniform Residential Landlord And Tenant Act, Melissa T. Lonegrass

Journal Articles

No abstract provided.


The Danger Of Nonrandom Case Assignment: How The S.D.N.Y'S 'Related Cases' Rule Has Shaped The Evolution Of Stop-And-Frisk Law, Katherine Macfarlane Jan 2014

The Danger Of Nonrandom Case Assignment: How The S.D.N.Y'S 'Related Cases' Rule Has Shaped The Evolution Of Stop-And-Frisk Law, Katherine Macfarlane

Journal Articles

The Southern District of New York’s local rules are clear: "[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time." Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally ...


Municipal Identity As Property, Christopher J. Tyson Jan 2014

Municipal Identity As Property, Christopher J. Tyson

Journal Articles

No abstract provided.


Hydraulic Fracturing And The Baseline Testing Of Groundwater, Keith B. Hall Jan 2014

Hydraulic Fracturing And The Baseline Testing Of Groundwater, Keith B. Hall

Journal Articles

No abstract provided.


Louisiana Oil & Gas Update, Keith B. Hall Jan 2014

Louisiana Oil & Gas Update, Keith B. Hall

Journal Articles

No abstract provided.


Spillover Across Remedies, Michael Coenen Jan 2014

Spillover Across Remedies, Michael Coenen

Journal Articles

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which ...