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Series

2014

Public Law and Legal Theory Working Papers

Articles 1 - 30 of 45

Full-Text Articles in Law

Agglomerama, Lee Anne Fennell Dec 2014

Agglomerama, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Sy


The Psychology Of Corporate Rights, Avital Mentovich, Aziz Huq, Moran Cerf Dec 2014

The Psychology Of Corporate Rights, Avital Mentovich, Aziz Huq, Moran Cerf

Public Law and Legal Theory Working Papers

Relying on the corporate personhood doctrine, the U.S. Supreme Court has increasingly expanded the scope of rights granted to corporations and other forms of collective entities. While this trend has received widespread attention in legal scholarship and


State Regulation And The Necessary And Proper Clause, William Baude Dec 2014

State Regulation And The Necessary And Proper Clause, William Baude

Public Law and Legal Theory Working Papers

The new marijuana federalism is here, but is it here to stay? In this Article, I address that question by way of two related points, a practical one and a technical one, and I ultimately argue that state regulation should have a bigger role in fixing the limits of federal constitutional power. The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level ...


Well-Being And Public Policy, John Bronsteen, Christopher Buccafusco, Jonathan Masur Nov 2014

Well-Being And Public Policy, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Public Law and Legal Theory Working Papers

Governments rely on certain basic economic metrics and tools to analyze prospective laws and policies and to monitor how well their countries are doing. For decades, critics of such economic measures have argued that they ignore important aspects of value


[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg Nov 2014

[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.


Sharing The Necessary And Proper Clause, William Baude Nov 2014

Sharing The Necessary And Proper Clause, William Baude

Public Law and Legal Theory Working Papers

Few constitutional clauses have been the focus of so many hopes and fears as the Necessary and Proper Clause. In his Foreword, Professor John Manning puts forward a powerful vision of the clause, challenging the current approach of the Supreme Court. F


The Paradoxes Of Public Philosophy, Brian Leiter Nov 2014

The Paradoxes Of Public Philosophy, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.


Partisan Gerrymandering And The Efficiency Gap, Nicholas Stephanopoulos, Eric Mcghee Oct 2014

Partisan Gerrymandering And The Efficiency Gap, Nicholas Stephanopoulos, Eric Mcghee

Public Law and Legal Theory Working Papers

The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could be ...


Valuable Lies, Ariel Porat, Omri Yadlin Oct 2014

Valuable Lies, Ariel Porat, Omri Yadlin

Public Law and Legal Theory Working Papers

Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is ...


Fairness In Law And Economics: Introduction, Lee Anne Fennell, Richard H. Mcadams Oct 2014

Fairness In Law And Economics: Introduction, Lee Anne Fennell, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.


Aligning Campaign Finance Law, Nicholas Stephanopoulos Oct 2014

Aligning Campaign Finance Law, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found. This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s ...


Teaching Election Law, Nicholas Stephanopoulos Sep 2014

Teaching Election Law, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

In the last couple years, new editions of the two most prominent election law casebooks have been released, and one entirely new casebook has been published. This is an opportune moment, then, both to review the volumes and to assess the state of the field. Fortunately, both are strong. All of the casebooks are well organized, thorough in their coverage, and full of insightful commentary. And the field, at least as presented by the volumes, is impressively confident in its substantive and methodological choices. There is a high level of consensus as to both the subject areas that election law ...


The Invention Of Low-Value Speech, Genevieve Lakier Sep 2014

The Invention Of Low-Value Speech, Genevieve Lakier

Public Law and Legal Theory Working Papers

It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern. This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the ...


The Discovery Sombrero, And Other Metaphors For Litigation, William Hubbard Sep 2014

The Discovery Sombrero, And Other Metaphors For Litigation, William Hubbard

Public Law and Legal Theory Working Papers

Academics, judges, and policymakers know little about the timing, volume, and cost of discovery in our civil justice system. This information deficit is most severe with respect to the most salient discovery-related issue for practitioners today: preservation—the duty to preserve relevant data when litigation is reasonably anticipated. This collective ignorance feeds uncertainty at both the policy level and at the doctrinal level. In this paper, I present original, empirical research on the nature and costs of preservation and discovery. This research is the first, and to date only, systematic effort to measure the extent and costs of preservation activity ...


Egypt, Ethiopia, And The Nile: The Economics Of International Water Law, Daniel Abebe Aug 2014

Egypt, Ethiopia, And The Nile: The Economics Of International Water Law, Daniel Abebe

Public Law and Legal Theory Working Papers

As part of a Symposium on the book The Economic Foundations of International Law, this Article briefly compares and contrasts two distinct analytical approaches to international law—doctrinal versus economic—in the context of Egypt’s and Ethiopia’s dispute over the right to exploit the Nile River’s water resources. The Article argues that the traditional doctrinal approach, one based solely on an examination of international water law, treaties, and customary international law is unlikely to result in a legal conclusion that either state is likely to respect because such an approach fails to consider the incentives, material capabilities ...


Limiting Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler Aug 2014

Limiting Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler

Public Law and Legal Theory Working Papers

The plurality and dissenting opinions in McCutcheon v. FEC seem unreal. These opinions, which considered a series of strategies for circumventing federal limits on contributions to candidates, failed to notice that these limits were no longer breathing. The D.C. Circuit’s 2010 decision in SpeechNow.org v. FEC created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional. This Article contends that SpeechNow was wrongly decided. It also considers what can be said for and against a bumper sticker’s declarations that ...


Reply To Five Critics Of Why Tolerate Religion?, Brian Leiter Aug 2014

Reply To Five Critics Of Why Tolerate Religion?, Brian Leiter

Public Law and Legal Theory Working Papers

The NFL’s letter outlining the penalty cited “the club's prior record”—namely, the Spygate scandal—as a factor “in determining the discipline in this case.” Leaving aside the fact that Spygate was an overblown misdemeanor punished with unduly harsh measur


Credible Threats, Saul Levmore, Ariel Porat Jul 2014

Credible Threats, Saul Levmore, Ariel Porat

Public Law and Legal Theory Working Papers

“Your money or your life” is a classic threat, and it is one that law is prepared to penalize. The sanction may occasionally do more harm than good, but for the most part the law’s treatment of such serious threats is sensible. In contrast, “If you do not lower the price of that automobile I hope to buy, I will never return to this dealership” is a threat that law ignores. The buyer is free to return the next day and reveal that the threat was a bluff. In both cases the threat is a more valuable signal if ...


Distributionally-Weighted Cost Benefit Analysis: Welfare Economics Meets Organizational Design, David A. Weisbach Jul 2014

Distributionally-Weighted Cost Benefit Analysis: Welfare Economics Meets Organizational Design, David A. Weisbach

Public Law and Legal Theory Working Papers

Conventional approaches to cost benefit analysis, derived from social welfare maximization, suggest that it should ideally be adjusted to account for distributional effects. These approaches do not consider how tasks should be assigned within a large institution that includes specialized units such as the numerous agencies in the federal government. This paper considers how optimal distributive systems map onto the assignment of tasks to government agencies in such a system. It concludes that regulatory agencies should not, in general be asked to consider the distributive effects of regulations. The types of distributive adjustments that specialized regulatory agencies are able to ...


Marx, Law, Ideology, Legal Positivism, Brian Leiter Jul 2014

Marx, Law, Ideology, Legal Positivism, Brian Leiter

Public Law and Legal Theory Working Papers

This essay -- for the UVA conference on "Jurisprudence and History" -- offers an account of Marx’s theory of history and his claim that law (and morality) are "ideological," and then asks what theory of law is adequate to explain the way the Marxist theory understands law in both its ideological and non-ideological senses. In Marx's theory we need to be able to say what law is in three contexts: (1) there are the laws that constitute the relations of production, i.e., the scheme of property rights in the existing forces of production; (2) there are the laws (and ...


Nuisance Suits, William Hubbard Jun 2014

Nuisance Suits, William Hubbard

Public Law and Legal Theory Working Papers

This paper develops a simple but general model of negative-expected-value (NEV) suit and settlement given symmetric information. It accounts for the roles of the merits, litigation costs, and bargaining power; incorporates complaints and answers for which parties' investments in pleading detail are endogenously determined; permits strategic default by the defendant; and nests several existing models of NEV litigation as special cases. It generates testable, counterintuitive, empirical predictions and facilitates normative analysis. For example, the model predicts that plausibility pleading standards will have modest effects in deterring low-merit suits but may be harmful to plaintiffs and defendants settling stronger cases.


The Case Against Free Speech, Brian Leiter Jun 2014

The Case Against Free Speech, Brian Leiter

Public Law and Legal Theory Working Papers

Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity at large might seem to counsel, of course, against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not ...


Cost-Benefit Analysis Of Financial Regulations: A Response To Criticisms, Eric A. Posner, E. Glen Weyl May 2014

Cost-Benefit Analysis Of Financial Regulations: A Response To Criticisms, Eric A. Posner, E. Glen Weyl

Public Law and Legal Theory Working Papers

Financial regulators should use cost-benefit analysis (CBA) to evaluate financial regulations. Finance is an ideal domain for CBA because the direct costs and benefits of financial activity can be easily monetized, and a huge amount of data exists for calculating the relevant valuations. John Coates and others have argued that in fact the valuations are too difficult to determine because of unique features of financial markets that distinguish them from other types of markets where CBA is used. We respond that these features are present in other markets, and that financial valuations are difficult to determine at present only because ...


Does The Constitutional Amendment Rule Matter At All? Amendment Cultures And The Challenges Of Measuring Amendment Difficulty, Tom Ginsburg, James Melton May 2014

Does The Constitutional Amendment Rule Matter At All? Amendment Cultures And The Challenges Of Measuring Amendment Difficulty, Tom Ginsburg, James Melton

Public Law and Legal Theory Working Papers

No abstract provided.


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

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

Public Law and Legal Theory Working Papers

No abstract provided.


Regarding Re's Revisionism: Notes On 'The Due Process Exclusionary Rule', Albert W. Alschuler May 2014

Regarding Re's Revisionism: Notes On 'The Due Process Exclusionary Rule', Albert W. Alschuler

Public Law and Legal Theory Working Papers

No abstract provided.


Coasean Bargaining Over The Structural Constitution, Aziz Huq Apr 2014

Coasean Bargaining Over The Structural Constitution, Aziz Huq

Public Law and Legal Theory Working Papers

No abstract provided.


Habeas And The Roberts Court, Aziz Huq Apr 2014

Habeas And The Roberts Court, Aziz Huq

Public Law and Legal Theory Working Papers

No abstract provided.


Introduction, Chapter 1 Of Constitutions In Authoritarian Regimes, Tom Ginsburg, Alberto Simpser Apr 2014

Introduction, Chapter 1 Of Constitutions In Authoritarian Regimes, Tom Ginsburg, Alberto Simpser

Public Law and Legal Theory Working Papers

No abstract provided.


The Shadow Powers Of Article I, Alison Lacroix Apr 2014

The Shadow Powers Of Article I, Alison Lacroix

Public Law and Legal Theory Working Papers

This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser ex