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Dworkin’S "Living Well" And The Well-Being Revolution, Christine Jolls 2010 Yale Law School

Dworkin’S "Living Well" And The Well-Being Revolution, Christine Jolls

Faculty Scholarship Series

Philosophers from Aristotle to Mill to Dworkin have considered the relationship between what it means to "live well" in our own lives ("ethics" in Ronald Dworkin' s Justice for Hedgehogs) and how we ought to treat others ("morality"). Far from any notion that morality operates as a dispiriting constraint on "living well," Dworkin - like Aristotle - views ethics and morality as deeply complementary. For Aristotle, the state of eudaimonia, or happiness, is "the best, noblest, and most pleasant thing in the world, and these attributes are not severed as in the inscription at Delos - 'Most noble is that which is justest ...


The Demise Of The Reputational Model In Capital Markets: The Problem Of The “Last Period Parasites”, Jonathan R. Macey 2010 Yale Law School

The Demise Of The Reputational Model In Capital Markets: The Problem Of The “Last Period Parasites”, Jonathan R. Macey

Faculty Scholarship Series

One of the most vexing questions facing economists is why it is so hard for poor countries to develop workable strategies for escaping the pernicious and chronic cycles of poverty, corruption and structural unemployment with which they are plagued. Clearly, a large part of the answer is that nations' prosperity is dependent on open and functional markets for products, services, and capital. These markets, in turn, depend on the ability of people to trade (contract) with one another with a reasonable degree of confidence. The ability to trade and to contract requires some sort of system that allows people both ...


The Role Of Lawyers In Producing The Rule Of Law: Some Critical Reflections, Robert W. Gordon 2010 Yale Law School

The Role Of Lawyers In Producing The Rule Of Law: Some Critical Reflections, Robert W. Gordon

Faculty Scholarship Series

The Rule of Law is of course a very capacious concept, which means many different things to its different promoters. Anyone who sets out to investigate its content will soon find himself in a snowstorm of competing definitions. Its barebones content ("formal legality") is that of a regime of rules, announced in advance, which are predictably and effectively applied to all they address, including the rulers who promulgate them - formal rules that tell people how the state will deploy coercive force and enable them to plan their affairs accordingly. The slightly-more-than barebones version adds: "applied equally to everyone."


Culture, Cognition, And Consent: Who Perceives What, And Why, In "Acquaintance Rape" Cases., Dan M. Kahan 2010 Yale Law School

Culture, Cognition, And Consent: Who Perceives What, And Why, In "Acquaintance Rape" Cases., Dan M. Kahan

Faculty Scholarship Series

No abstract provided.


Delegation And Judicial Review, Thomas W. Merrill 2010 Yale Law School

Delegation And Judicial Review, Thomas W. Merrill

Faculty Scholarship Series

One of the subthemes in the delegation debate concerns the
importance of judicial review. The Supreme Court has often
upheld broad delegations to administrative actors and in so
doing has pointed out that judicial review is available to safeguard
citizens from the abuse of unconstrained government
power. Broad delegations of power to executive actors are
constitutionally permissible, the Court has suggested, in significant
part because courts stand ready to assure citizens that
the executive will discharge its discretion in a manner consistent
with Congress's mandate and in a fashion that otherwise
satisfies the requirements of reasoned decision making.


Intersystemic Statutory Interpretation: Methodology As “Law” And The Erie Doctrine, Abbe R. Gluck 2010 Yale Law School

Intersystemic Statutory Interpretation: Methodology As “Law” And The Erie Doctrine, Abbe R. Gluck

Faculty Scholarship Series

The new frontlines in the statutory interpretation battles are the states. And the most interesting part is that, in at least some states, the battles don't seem to be battles at all. Whereas on the federal side, the now-stale fight between textualist and purposivist statutory interpreters continues to repeat, some state courts seem to be engaged in an entirely different and more productive set of conversations about interpretive predictability - conversations that are relevant not only to the states having them, but to federal interpreters as well.


Keynote Address: What Election Law Has To Say To Constitutional Law, Heather K. Gerken 2010 Yale Law School

Keynote Address: What Election Law Has To Say To Constitutional Law, Heather K. Gerken

Faculty Scholarship Series

This Address briefly reexamines the relationship between election law and constitutional law. For those unfamiliar with the history of this relationship, 44 Indiana Law Review 7 (2010)allow me to offer a tongue-in-cheek sketch. Election law is a young field. It was not formally declared its own field of study until 1999, though its roots date back earlier. While there were a handful of scholars writing systematically about the subject before 1990, the field came into its own during the early 1990s as a group of dynamic young scholars entered the field and made a name for themselves.


Foreword: Federalism All The Way Down, Heather K. Gerken 2010 Yale Law School

Foreword: Federalism All The Way Down, Heather K. Gerken

Faculty Scholarship Series

We make much of "Our Federalism."' The Supreme Court routinely crafts doctrine to further its ends, and paeans to federalism regularly appear in law reviews. Federalism is a system that permits minorities to rule, and we are intimately familiar with its benefits: federalism promotes choice, competition, participation, experimentation, and the diffusion of power. The Court reels these arguments off as easily as do scholars.


Judge Stories, Heather K. Gerken 2010 Yale Law School

Judge Stories, Heather K. Gerken

Faculty Scholarship Series

Whenever Judge Reinhardt's clerks are asked about the clerkship, they tell "Judge stories." There are an infinite number of wry stories about how hard he worked and how hard he worked us. Inevitably, the clerks try to best each other with increasingly over-the-top tales about the Judge's legendary eating habits or his shockingly funny bluntness. An outsider might think we tell "Judge stories" simply because they are entertaining, or perhaps because they are veiled complaints in a culture in which it's considered bad form to speak ill of your clerkship.


Ecologic: Nanotechnology, Environmental Assurance Bonding, And Symmetric Humility, Douglas A. Kysar 2010 Yale Law School

Ecologic: Nanotechnology, Environmental Assurance Bonding, And Symmetric Humility, Douglas A. Kysar

Faculty Scholarship Series

To date, the turn toward market-based regulatory tools in the environmental, health, and safety context has tended to focus on taxes, tradable permits, and information disclosure rules, with comparatively little attention devoted to environmental assurance bonds. This paper argues that environmental assurance bonding offers a particularly attractive regulatory approach for contexts – such as the present state of nanoscale science and engineering – in which both the risk and the benefit sides of the regulatory equation are characterized by great uncertainty. Historical examples and existing scholarly analyses of environmental assurance bonding are reviewed, and the resulting lessons are situated within the larger ...


Reading Reinhardt: The Work Of Constructing Legal Virtue (Exempla Iustitiae), Judith Resnik 2010 Yale Law School

Reading Reinhardt: The Work Of Constructing Legal Virtue (Exempla Iustitiae), Judith Resnik

Faculty Scholarship Series

Is the California prison system so overcrowded as to require a reduction in population in order for the state to comply with its constitutional obligation not to be “deliberately indifferent” to the known medical needs of prisoners? Is the phrase “under God,” added in the 1950s to the Pledge of Allegiance, unconstitutional? When does the First Amendment protect the speech of government employees? How long can the federal government hold an immigrant in detention after that person is ordered to leave the United States? These questions have come to the fore of constitutional jurisprudence in part through decisions by Stephen ...


Drafting, Lobbying, And Litigating Vawa: National, Local, And Transnational Interventions On Behalf Of Women's Equality, Judith Resnik 2010 Yale Law School

Drafting, Lobbying, And Litigating Vawa: National, Local, And Transnational Interventions On Behalf Of Women's Equality, Judith Resnik

Faculty Scholarship Series

I begin with the centerpiece of the conflict about the Violence Against Women Act of 1994 (VAWA)—the civil rights remedy of VAWA.2 Its words were both carefully thought out and negotiated, and hence the exact terms are important to know. Key to what Congress entitled the “Civil Rights” remedy of VAWA is its provision: “All persons within the United States shall have the right to be free from crimes of violence motivated by gender . . . .” In addition, Congress specified a right to obtain supplemental remedies in federal court atop what other provisions might be available under state law—provided ...


The American Model Of Federal Administrative Law: Remembering The First 100 Years, Jerry L. Mashaw 2010 Yale Law School

The American Model Of Federal Administrative Law: Remembering The First 100 Years, Jerry L. Mashaw

Faculty Scholarship Series

The conventional story of American administrative law dates its origin to a period 100 years after the Founding. In his classic history of American law, Lawrence Friedman tells us, "[i]n hindsight, the development of administrative law seems mostly a contribution of the 20th century .... The creation of the Interstate Commerce Commission, in 1887, has been taken to be a kind of genesis."' According to this conventional account, the federal government woke from its laissez- faire slumbers in the face of a crisis in the railroad industry. From that beginning, the modern administrative state was built in fits and starts ...


Federal Administration And Administrative Law In The Gilded Age, Jerry L. Mashaw 2010 Yale Law School

Federal Administration And Administrative Law In The Gilded Age, Jerry L. Mashaw

Faculty Scholarship Series

The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding to the emerging social and economic needs of the day. Only toward the end of this era, with the passage of the Interstate Commerce Act of 1887, did the national government begin to break free from a laissez-faire ideology that was antithetical to state building in virtually all of its forms. Indeed, on this conventional account, the American administrative state ...


Three Issues In Legal Ethics, Daniel Markovits 2010 Yale Law School

Three Issues In Legal Ethics, Daniel Markovits

Faculty Scholarship Series

A court – which is the name given the institution charged with resolving legal disputes at retail – is comprised of three elements: an umpire ( judge or jury), disputants, and advocates. The court’s structural purpose is legitimate (which is not the same thing as just) dispute resolution. No part of the court can stand in for the whole; each is only a part. In order for the court to achieve legitimacy, each of its components must pursue partial aims: the umpire must seek truth and justice, the parties must be free to seek advantage, and lawyers must pursue partisan loyalty.

Lawyerly ...


How (And How Not) To Do Legal Ethics, Daniel Markovits 2010 Yale Law School

How (And How Not) To Do Legal Ethics, Daniel Markovits

Faculty Scholarship Series

How should scholars of legal ethics approach their subject? What questions should they ask and emphasize? What methods should they employ in answering them? What should they hope that their arguments will achieve?


The Meaning Of Contractual Silence: A Field Experiment, Yair Listokin 2010 Yale Law School

The Meaning Of Contractual Silence: A Field Experiment, Yair Listokin

Faculty Scholarship Series

The limited capacity of lawmakers to intuit the unstated wishes of contracting parties constitutes a daunting obstacle to the formulation of majoritarian default rules. This paper presents a field experiment that prices consumers' unstated understandings of contractual silence regarding warranty and return policies for a good. Used iPods were sold via auction on eBay.com with randomly varying return policies, Some iPods came with a satisfaction guaranteed policy, others with an explicit warranty that resembled the default warranty of merchantability, and still other iPods were sold "as is." Finally, a batch of iPods was silent regarding the return policy, Although ...


Bayesian Contractual Interpretation, Yair Listokin 2010 Yale Law School

Bayesian Contractual Interpretation, Yair Listokin

Faculty Scholarship Series

Courts seeking the most likely intent of contracting parties should interpret contracts according to Bayes’s rule. The best interpretation of a contract reflects both the prior likelihood (base rate) of a pair of contracting parties having a given intention and the probability that the contract would be written as it is given that intention. If the base rate of the intention associated with the simplest reading of the contract is low, then Bayes’s rule implies that the simplest reading is not necessarily the interpretation of the contract that most likely captures the intention of the parties. The Bayesian ...


If You Misrate, Then You Lose: Improving Credit Rating Accuracy Through Incentive Compensation, Yair Listokin 2010 Yale Law School

If You Misrate, Then You Lose: Improving Credit Rating Accuracy Through Incentive Compensation, Yair Listokin

Faculty Scholarship Series

Credit rating agencies (CRAs) serve many roles in maintaining properly functioning debt markets. Their contribution to both Enron-era financial scandals and the 2008-2010 financial crisis, however, has led to many calls for credit rating reform. This Essay proposes an incentive compensation scheme in which CRAs are paid with the debt they rate. If a CRA overrates debt, then the CRA suffers a financial penalty because the debt the CRA receives as compensation is less valuable than the cash compensation that the debt is replacing. We believe that this reform, though imperfect, would be more likely to generate accurate ratings than ...


Non-Citizen Voting And The Extra-Constitutional Construction Of The Polity, Cristina Rodríguez 2010 Yale Law School

Non-Citizen Voting And The Extra-Constitutional Construction Of The Polity, Cristina Rodríguez

Faculty Scholarship Series

The core substantive principle of democracy is that those subject to the law should have a voice in its formulation — a principle of consent realized primarily through the mechanism of the vote. Yet the populations of few (if any) nation-states consist solely of formal citizens; migration and transnational practices give rise to populations within states bound by laws over which they have no direct control. In this essay, I consider a practice that can help address this potential democracy deficit — alien suffrage. I focus on three jurisdictions that have adopted some form of noncitizen voting in their histories — the United ...


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