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Full-Text Articles in Law

Law Enforcement Organization Relationships, Daniel C. Richman Jan 2019

Law Enforcement Organization Relationships, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s offices must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible


Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson Jan 2019

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial ...


Judges And Judgment: In Praise Of Instigators, Kathryn Judge Jan 2019

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

Faculty Scholarship

This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner ...


Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen Jan 2019

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort ...


A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad ...


Normative Powers (Revised), Joseph Raz Jan 2019

Normative Powers (Revised), Joseph Raz

Faculty Scholarship

The paper provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyse several kinds of such powers. The revision affects mainly the analysis of such types. The main theses of the paper concern the distinction between basic from chained powers and the account of the relations between the normative powers and the values which explain and justify their existence. It ends by showing the connection between the thesis that values depend on human nature and culture and the dependence of normative powers on justifying reasons.


The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt Jan 2019

The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt

Faculty Scholarship

We often say that Foucault was influenced by Nietzsche or, more simply, that Foucault was Nietzschean. That is a gross misunderstanding that fundamentally distorts our reading of Foucault’s writings and, worse, does violence to the critical method. Foucault was no more Nietzschean than he was “mad” because he studied madness or “neoliberal” because he studied Gary Becker’s economic writings. Instead, Foucault took Nietzsche’s discourse as an object of study – in a similar way that he took the discourse of madness, of the prison, and of sexuality as objects of study throughout his intellectual lifetime. Writings of Nietzsche ...


Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan Jan 2018

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in local governments' traffic enforcement responses to budget stress using data from policing agencies in the state of Missouri for the years 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates. In addition, we find that there is an increase in traffic-stop arrests. However, we find that these effects are concentrated among white (rather than black or Hispanic) drivers. The results are robust to the inclusion of a range of covariates for traffic stops and to the inclusion of local population features interacted with ...


Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt Jan 2018

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The ...


Valuation Disputes In Corporate Bankruptcy, Kenneth M. Ayotte, Edward R. Morrison Jan 2018

Valuation Disputes In Corporate Bankruptcy, Kenneth M. Ayotte, Edward R. Morrison

Faculty Scholarship

Prior scholarship points to disagreements about valuation and judicial valuation error as key drivers of Chapter 11 outcomes. Avoiding valuation disputes and valuation errors is also the underlying driver of most proposed reforms, from Baird’s auctions to Bebchuk’s options. In this paper, we undertake a detailed examination of bankruptcy court opinions involving valuation disputes. Our paper has two goals. The first is to understand how parties and their expert witnesses justify their opposing views to the judge, and how judges decide between them. The second is to provide practical guidance to judges in resolving valuation disputes. We document ...


Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller Jan 2018

Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract.

Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add?

Our task in Part I of this Essay is ...


Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller Jan 2018

Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path ...


Can Moral Principles Change?, Joseph Raz Jan 2017

Can Moral Principles Change?, Joseph Raz

Faculty Scholarship

The paper considers the main arguments against the possibility that basic normative principles can change, and finds them wanting. The principal argument discussed derives from the claim that normative considerations are intelligible, and therefore that they can be explained, and their explanations presuppose the prior existence of basic normative principles. The intelligibility thesis is affirmed but the implication that basic change is impossible is denied. Subsumptive explanations are contrasted with explanations by analogy. Later in the paper, other objections are considered more briefly: that normative properties are queer, that they are unconnected to the rest of reality, and therefore cannot ...


Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter Jan 2017

Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals – and a vast literature describing the role of clinics in both the teaching and service dimensions – we have scant empirical ...


Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon Jan 2017

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms ...


Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon Jan 2017

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms ...


Some Legal Realism About Legal Theory, Jeremy Kessler, David Pozen Jan 2017

Some Legal Realism About Legal Theory, Jeremy Kessler, David Pozen

Faculty Scholarship

This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).

Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of ...


The Choice Theory Of Contracts (Introduction), Hanoch Dagan, Michael Heller Jan 2017

The Choice Theory Of Contracts (Introduction), Hanoch Dagan, Michael Heller

Faculty Scholarship

This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. "The Choice Theory of Contracts" answers the field's most pressing questions: What is the “freedom” in “freedom of contract”? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller show exactly why and how freedom matters to contract. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students ...


Democratic Experimentalism, Charles F. Sabel, William H. Simon Jan 2017

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

This essay, written for a volume surveying “contemporary legal thought”, provides an overview of Democratic Experimentalism, a perspective that draws on both pragmatist social theory and recent practical innovations in private and public organization. Normatively, Democratic Experimentalism aligns with process theories that emphasize the role of courts in vindicating entitlements through inducing, collaborating with, and policing institutions, rather than vindicating them directly through interpretive or policy-engineering techniques. It departs from some such theories, however, in emphasizing that practice must often take the form of continuous investigation and revision, rather than the adoption of definitive solutions already known to at least ...


The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss Jan 2016

The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss

Faculty Scholarship

The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining ...


Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy Kessler, David Pozen Jan 2016

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy Kessler, David Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that ...


Jerry Mashaw And The Public Law Curriculum, Peter L. Strauss Jan 2015

Jerry Mashaw And The Public Law Curriculum, Peter L. Strauss

Faculty Scholarship

Written for a Yale Festschrift celebrating Professor Jerry Mashaw’s extraordinary life of scholarship, this essay takes his first published teaching materials as the jumping off place for an essay on the impact of early choices about the teaching of public law courses on the materials and issues our students see, and the changes that might be in the wind as new materials on Legislation and the Regulatory State emerge. With Richard Merrill, Jerry 40 years ago designed “The American Public Law System” for the first year of law school, treating legislation and administrative action as subjects worthy of serious ...


Three Essays In Criminal Justice, Bernard E. Harcourt Jan 2015

Three Essays In Criminal Justice, Bernard E. Harcourt

Faculty Scholarship

How could the New York Times call the grand jury’s decision to no bill the indictment against officer Darren Wilson in Ferguson, Missouri, a “verdict”? How could federal appellate judges call it a “procedural shortcut” when a state judge, in a death penalty case, signs the state attorney general’s proposed judicial opinion without even striking the word “proposed” or reviewing the full opinion? What do these incidents tell us about contemporary criminal justice? These essays explore these puzzles. The first, “Verdict and Illusion,” begins to sketch the role of illusions in justice. The second, “A Singe Voice of ...


Uncivil Obedience, Jessica Bulman-Pozen, David Pozen Jan 2014

Uncivil Obedience, Jessica Bulman-Pozen, David Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law-following. We seek to identify, elucidate, and call attention to the ...


Tax And Corporate Governance: The Influence Of Tax On Managerial Agency Costs, David M. Schizer Jan 2014

Tax And Corporate Governance: The Influence Of Tax On Managerial Agency Costs, David M. Schizer

Faculty Scholarship

This chapter of the Oxford Handbook on Corporate Law and Governance canvasses a broad range of ways that tax influences managerial agency costs, focusing especially on the United States. In doing so, this chapter has two goals. The first is to help corporate law experts target managerial agency costs more effectively. The analysis here flags when tax is likely to exacerbate agency costs, and when it is likely to mitigate them. Armed with this information, corporate law experts have a better sense of how vigorous a contractual or corporate law response they need. In some cases, a change in the ...


Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic, Petros C. Mavroidis, Damien J. Neven Jan 2014

Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

The objective of this paper is to discuss and compare the role that different constituencies play in US and EU procedures for merger control. We describe the main constituencies (both internal and external) involved in merger control in both jurisdictions and discuss how a typical merger case would be handled under these procedures. At each stage, we consider how the procedure unfolds, which parties are involved, and how they can affect the procedure. Our discussion reveals a very different ecology. EU and US procedures differ in terms of their basic design and in terms of the procedures that are naturally ...


Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi Jan 2013

Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi

Faculty Scholarship

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic regulation and in doing ...


Law In Finance, Katharina Pistor Jan 2013

Law In Finance, Katharina Pistor

Faculty Scholarship

Law’s relevance to finance is by now well recognized, in no small part due to the literature on "law and finance" (La Porta et al. 1998; La Porta, Lopez-de-Silanes, and Shleifer 2008) celebrated in this journal ten years ago under the heading "the new comparative economics" (Djankov et al. 2003). There will always be some debate as to whether a specific law or regulation distorts or supports markets, but few would argue today that law is irrelevant to financial markets or that they could operate entirely outside it.

This special issue takes the debate about the relation between law ...


A Legal Theory Of Finance, Katharina Pistor Jan 2013

A Legal Theory Of Finance, Katharina Pistor

Faculty Scholarship

This paper develops the building blocks for a legal theory of finance. LTF holds that financial markets are legally constructed and as such occupy an essentially hybrid place between state and market, public and private. At the same time, financial markets exhibit dynamics that frequently put them in direct tension with commitments enshrined in law or contracts. This is the case especially in times of financial crisis when the full enforcement of legal commitments would result in the self-destruction of the financial system. This law-finance paradox tends to be resolved by suspending the full force of law where the survival ...


Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily A. Benfer, Colleen F. Shanahan Jan 2013

Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily A. Benfer, Colleen F. Shanahan

Faculty Scholarship

Each new generation of law students presents its own set of challenges for law teachers seeking to develop competent and committed members of the legal profession. This article aims to train legal educators to recognize their students’ generational learning style and to deliver a tailored education that supports the development of skilled attorneys. To help legal educators better understand the newest generation of law students, this article explores the traits associated with the Millennial Generation of law students, including their perspective on themselves and others, on education and on work. It then provides detailed and specific strategies for teaching millennial ...