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Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen 2010 University at Buffalo School of Law

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the ...


The Invention Of Common Law Play Right, Jessica D. Litman 2010 University of Michigan Law School

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute ...


Proportionality, Rationality And Review, Paul Craig 2010 Indiana University Maurer School of Law

Proportionality, Rationality And Review, Paul Craig

Articles by Maurer Faculty

There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the ...


Equitable Balancing In The Age Of Statutes, Jared Goldstein 2010 Roger Williams University School of Law

Equitable Balancing In The Age Of Statutes, Jared Goldstein

Law Faculty Scholarship

No abstract provided.


East Going West?: The Promise Of Assured Supply Laws In Modern Real Estate Development, 43 J. Marshall L. Rev. 319 (2010), Lincoln L. Davies 2010 John Marshall Law School

East Going West?: The Promise Of Assured Supply Laws In Modern Real Estate Development, 43 J. Marshall L. Rev. 319 (2010), Lincoln L. Davies

The John Marshall Law Review

No abstract provided.


Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon 2010 John Marshall Law School

Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon

The John Marshall Law Review

No abstract provided.


Burnham, Water, And The Plan Of Chicago: A Historical Explanation Of Why Water Was Ignored And The Consequences Of Ignoring Water, 43 J. Marshall L. Rev. 413 (2010), Virginia M. Harding 2010 John Marshall Law School

Burnham, Water, And The Plan Of Chicago: A Historical Explanation Of Why Water Was Ignored And The Consequences Of Ignoring Water, 43 J. Marshall L. Rev. 413 (2010), Virginia M. Harding

The John Marshall Law Review

No abstract provided.


The Disposing Power Of The Literature, Thomas W. Merrill 2010 Columbia Law School

The Disposing Power Of The Literature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of ...


First Principles For And Effective Federal Housing Policy, David Reiss 2010 Brooklyn Law School

First Principles For And Effective Federal Housing Policy, David Reiss

Faculty Scholarship

No abstract provided.


Landlords Of Last Resort: Should The Government Subsidize The Mortgages Of Privately-Owned, Small Multifamily Buildings?, David Reiss 2010 Brooklyn Law School

Landlords Of Last Resort: Should The Government Subsidize The Mortgages Of Privately-Owned, Small Multifamily Buildings?, David Reiss

Faculty Scholarship

No abstract provided.


The Common Law Of Foreign Official Immunity, Chimene I. Keitner 2009 University of California, Hastings

The Common Law Of Foreign Official Immunity, Chimene I. Keitner

Chimene I Keitner

No abstract provided.


Laying To Rest An Ancien Regime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet 2009 University of Oklahoma College of Law

Laying To Rest An Ancien Regime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet

Christopher K. Odinet

Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern-day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society alter, the law should be modified to ...


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