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Explaining Theoretical Disagreement, Brian Leiter

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Scott Shapiro has recently argued that Ronald Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new but disagree that it has not been met. Positivism cannot offer an explanation that preserves the "Face Value" of theoretical disagreements, because the only intelligible dispute about the criteria of …

Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Richard A. Epstein, Gregory S. Parks, Jeffrey J. Rachlinski

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No abstract provided.

Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa

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No abstract provided.

What The Law Should (And Should Not) Learn From Child Development Research, Emily Buss

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No abstract provided.

Feminist Fundamentalism On The Frontier Between Government And Family Responsibility For Children, Mary Anne Case

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No abstract provided.

A Global Architecture For Medical Counter-Measure Preparedness Against Bioviolence, Zachary D. Clopton, Barry Kellman

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No abstract provided.

The Rights Of Migrants: An Optimal Contract Framework, Adam B. Cox, Eric A. Posner

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Why do migrants enjoy some of the rights associated with citizenship? Existing accounts typically answer this question in terms of obligation-of a duty on the part of states to confer citizenship. Moreover, scholars tend to lump together the rights conventionally associated with citizenship when they answer this question. In contrast, this Article disaggregates the rights associated with citizenship, asks what both states and migrants want, and inquires into how the suite of rights associated with citizenship might advance those interests. States want to encourage migrants to enter their territory and to make country-specific investments, but states also have an interest …

Odds And Ends: An Epstein-Inspired Look At Luck, Lee Anne Fennell

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No abstract provided.

Richard Epstein And Discrimination Law, Richard H. Mcadams

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No abstract provided.

Depoliticizing Administrative Law, Thomas J. Miles, Cass R. Sunstein

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A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely …

Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule

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This Article compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes, rather than legal or constitutional constraints, operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to …

Are American Ceos Overpaid, And, If So, What If Anything Should Be Done About It?, Richard A. Posner

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No abstract provided.

Free Speech And National Security, Geoffrey R. Stone

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No abstract provided.

Toward A New Approach To Disability Law, David A. Weisbach

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This Article argues that a new approach to the laws governing disabilities is needed. Existing approaches, largely based on the "social model" of disabilities are unable to answer basic questions, such as the extent to which resources should be devoted to the disabled. The Article argues that basing disability policy directly on welfarist theories of distributive justice offers a better approach and begins the task of developing what such an approach would look like. Under a welfarist approach, policy toward the disabled depends on how a given disability affects the well-being of an individual. Under reasonable assumptions, redistribution toward individuals …

Rethinking The Connection Between Developmental Science And Juvenile Justice, Emily Buss

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No abstract provided.

Let Us Never Blame A Contract Breaker, Richard A. Posner

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Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.

Judicial Audiences And Reputation: Perspectives From Comparative Law, Tom Ginsburg, Nuno Garoupa

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Whether judges are motivated to make good law or maximize policy goals, they need to develop and maintain a good reputation with some audience. We distinguish internal and external audiences for individual judicial decision-making: internal audiences are those within the judiciary itself, while external audiences include lawyers, the media or the general public. Different legal systems emphasize different audiences: some rely on external audiences that encourage judges to invest in their individual reputations, while others emphasize internal audiences that facilitate the collective reputation of the judiciary as a whole. The article analyzes the interaction between internal and external audiences over …

The Entrepreneurial Motivations Of Nonemployer Entrepreneurs, Richard Demartino, Robert Barbato, Paul Jacques

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No abstract provided.

Minority Stress And Health: Implications For Lesbian, Gay, Bisexual, Transgender, And Questioning (Lgbtq) Young People, Cathy Kelleher

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Historically, the pathologisation of LGBTQ orientations shaped research and professional practice, while the impact of stigma was not considered. Within a minority stress conceptualisation however, stigma-related prejudice and discrimination experienced by LGBTQ people constitute chronically stressful events that can lead to negative health outcomes. Minority stress has been linked to psychological distress among gay men and lesbians and may contribute to elevated rates of distress frequently observed among LGBTQ youth. This study explored the impact of minority stress on psychological distress among LGBTQ youth in Ireland. Measures assessing three components of minority stress (sexual identity distress, stigma consciousness, and heterosexist …

Gun Control After Heller: Threats And Sideshows From A Social Welfare Perspective, Jens Ludwig, Adam M. Samaha, Philip J. Cook

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What will happen after District of Columbia v. Heller? We know that five justices on the Supreme Court now oppose comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and maybe only at the time of, self-defense. Perhaps the justices will push further and apply Heller's holding to state and local governments via the Fourteenth Amendment. But the majority opinion in Heller offered limited guidance for future cases. It did not follow a purely originalist method of constitutional interpretation, nor did it establish a constraining doctrinal framework for evaluating firearms regulation-although the …

A New Systematic Explanation Of The Types And Mitigating Effects Of Exculpatory Defenses, Jim Staihar

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When someone performs a criminal act, there is a rebuttable presumption that she is particularly blameworthy and liable to a particularly severe punishment for the act. The presumption is rebutted when the criminal actor has an exculpatory defense. Such defenses mitigate how much a criminal actor is blameworthy and liable to be punished for her act. In this paper, I begin by spelling out a taxonomy of the main types of exculpatory defenses. Then I argue that a restorative signaling theory of punitive desert best explains why such defenses have their mitigating effects. According to the theory, how much someone …

The Bush Administration And International Law: Too Much Lawyering And Too Little Diplomacy, Curtis A. Bradley

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No abstract provided.

A Traditionalist Case For Gay Marriage, Dale Carpenter

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I will present here the outline of an argument for same-sex marriage within a particular school of conservatism. Let's call it traditionalism or Burkeanism, after the eighteenth century British statesman and writer Edmund Burke. It is important, I think, to note at the outset what I am not talking about. I am not talking about libertarianism. It is not economic conservatism. It is not neo-conservatism. It is not religious conservatism. And it is not compassionate conservatism.

Protecting Them From Themselves: The Persistence Of Mutual Benefits Arguments For Sex And Race Inequality, Jill Elaine Hasday

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Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions. The argument posits that women and people of color attempting to secure expanded rights and opportunities do not understand their own best interests and do not realize that they benefit from limits on their prerogatives and choices. Indeed, proponents of this argument insist that restricting the rights and opportunities available …

Judicial Oversight Over The Interstate Placement Of Foster Children: The Missing Element In Current Efforts To Reform The Interstate Compact On The Placement Of Children, Vivek Sankaran

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This article argues that current efforts to reform the Compact are flawed because they lack an essential element: judicial oversight of agency decision-making. The first section explores the important role that juvenile court judges play in making placement decisions for foster children. Next, an examination of the current problems in the interstate placement process demonstrates the vital need for judicial oversight of the system. Finally, a specific proposal is put forth on how best to incorporate judicial oversight without interfering with the sovereignty of states.

Before The Verdict And Beyond The Verdict: The Csi Infection Within Modern Criminal Jury Trials, Tamara F. Lawson

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In criminal law, the term “CSI Effect” commonly refers to the perceived impact the CSI television show has on juror expectation and unexpected jury verdicts. This article coins a new phrase, “CSI Infection,” by focusing on the significant legal impact that the fear of “CSI Infected Jurors” has made upon the criminal justice system. The CSI Infection is the ubiquitous “It” factor that scholars cannot conclusively prove nor effectively explain away; however, practitioners overwhelmingly confirm the CSI Effect’s impact on criminal jury trials. The CSI Effect’s existence, the CSI Effect’s true or perceived impact on acquittals and convictions, and how …

A Shift Toward Gender Equality In Prosecutions: Realizing Legitimate Enforcement Of Crimes Committed Against Women In Municipal And International Criminal Law, Tamara F. Lawson

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A new era of law enforcement has emerged recognizing the importance of punishing gender-specific violence. This first wave of "gender-sensitive prosecutors" has changed the way crimes against women are handled in the criminal justice system. The enactment of gender neutralizing laws and policies has dramatically improved the enforcement of crimes against women and attempts to end the era of impunity. This Article addresses the changes in prosecutions and further considers international human rights treaties that require gender equality in law enforcement.

In criminal law, it is the willingness of a prosecutor to exercise his or her discretionary authority to file …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

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No abstract provided.

Professionalizing Moral Deference, Michael Hatfield

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As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the "torture memoranda" to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently …

A Precautionary Tale: Assessing Ecological Damages After The Exxon Valdez Oil Spill, Sanne Knudsen

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To address the shortcomings of our existing damages paradigm--exemplified by the response to the Exxon Valdez oil spill in Prince William Sound--this article suggests that we invoke the burden-shifting attributes of the precautionary principle to transfer the risk of long-term, unknown ecological harm to those who have caused the injury. Through such a risk transfer, this article posits that true costs of ecological injury would more properly be borne by actors capable of altering their behavior to avoid such injury in the first place. In addition, this article suggests offering defendants two options for incurring damages for ecological injuries--either accepting …