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Articles 1 - 7 of 7
Full-Text Articles in Jurisprudence
Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp
Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp
All Faculty Scholarship
One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.
Intellectual history in the United States went into decline because …
Catalogs, Gideon Parchomovsky, Alex Stein
Catalogs, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan David Doerfler
Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan David Doerfler
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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 speaks authoritatively, federal court practice reflects this. When an agency speaks only informally, however, federal court practice does not. Specifically, when construing an agency-administered statute absent an authoritative agency interpretation, a federal court errs, given its subordinate status, when it exercises independent judgment concerning what interpretation is best. Instead, that subordinate status requires a court to predict what authoritative interpretation the administering agency …
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
All Faculty Scholarship
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
Discretion In Class Certification, Tobias Barrington Wolff
Discretion In Class Certification, Tobias Barrington Wolff
All Faculty Scholarship
A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or …