Digital Commons Network^™

The Property Rights Decisions Of Justice Sandra Day O'Connor: When Pragmatic Balancing Is Not Enough, Richard A. Epstein

Articles

No abstract provided.

The Romance Of Force: James Fitzjames Stephen On Criminal Law, Richard A. Posner

Articles

No abstract provided.

Showcase Panel Iv: A Federal Sunset Law, Frank H. Easterbrook, William N. Eskridge Jr., Philip K. Howard, Thomas W. Merrill

Articles

No abstract provided.

Absolute Preferences And Relative Preferences In Property Law, Lior Strahilevitz

Articles

No abstract provided.

Federalists, Federalism, And Federal Jurisdiction, Alison Lacroix

Articles

No abstract provided.

When Was Judicial Self-Restraint?, Aziz Huq

Articles

This Essay responds to Judge Posner's Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …

Structural Constitutionalism As Counterterrorism, Aziz Huq

Articles

During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution's Separation of Powers. These "structural constitutional presumptions" serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals …

The Institution Matching Canon, Aziz Huq

Articles

This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the "institution matching" canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of …

Enforcing (But Not Defending) Unconstitutional Laws, Aziz Huq

Articles

When should the executive decline to defend in court a federal law it has determined to be unconstitutional, yet still enforce that same statute against third parties? The question is prompted by the Obama administration's decision to enforce, but not defend in federal court, Section 3 of the Defense of Marriage Act ("DOMA "). But the DOMA Section 3 decision is not the first time the executive has bifurcated the enforcement of a statute from its defense before the bench. The practice of enforcement-litigation gaps dates back at least to World War I. Commentators tend to judge the practice by …

Are Even Unanimous Decisions In The United States Supreme Court Ideological?, Richard A. Posner, William M. Landes, Lee Epstein

Articles

The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological-legalistic judicial institution.

Beyond Doma: Choice Of State Law In Federal Statutes, William Baude

Articles

The Defense of Marriage Act (DOMA) has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married. But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state’s law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state …

Constitutional Ratemaking And The Affordable Care Act: A New Source Of Vulnerability, Richard A. Epstein, Paula M. Stannard

Articles

No abstract provided.

Brown, Governor Of California Et Al V. Plata Et Al., Mary Rogan

Articles

The case of Brown, Governor of California et at v. Plata et al (hereinafter Plata) is one of the most eye-catching decisions of the Supreme Court of the United States in recent times. The result in itself – the upholding of an order of a Californian District Court to reduce the state’s prison population by up to 46,000 prisoners – would warrant attention. The reasoning of the Court and the differences between the majority and minority are also, however, most significant. The willingness of the Court to uphold the drastic measure of ordering a sizeable reduction in the Californian prison …

An Exploration Of The Effects Of The Servicescape On Customer And Employee Responses In A Grocery Retail Context, Treasa Kearney, Joseph Coughlan, Aileen Kennedy

Articles

This research investigates the impact of the servicescape on the responses of both the customer and the employee within a retail grocery setting and is exploratory in nature. The paper has its theoretical underpinning in servicescape theory (Bitner, 1992; Homburg and Stock, 2004), physical work environment literature (Davis, 1984; Kuenzi and Schminke, 2009) and the Service Profi t Chain (SPC) (Heskett et al., 1994). Interviews with grocery retail store managers were carried out to contextualise the paper though the main research instrument is a large-scale survey of customers and employees. The fi ndings suggest that almost 50 per cent of …

Cars In Chapter 13: Does Negative Equity Destroy The Jurisdiction Of The Hanging Paragraph, David G. Carlson

Articles

Roughly speaking, the “hanging paragraph” to Bankruptcy Code 1325(a), enacted in 2005, requires that a debtor pay the full debt on any automobile acquired within 910 days before bankruptcy – a boon for car financiers. Prior to 2005 the debtor had to pay only the appraised value of the car – usually a lesser amount. But the privilege bestowed on car financiers by the hanging paragraph depends on the financier providing “purchase money” credit. About one-third of the time, however, the financier advances funds to repay a prior car loan as part of the “trade-in” of an old vehicle for …

Pleading As Information-Forcing, Alexander Reinert

Articles

Academics, judges, and practitioners have devoted much attention to the potential impact of the federal pleading standards announced in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Many have criticized Iqbal and Twombly on procedural, substantive, and policy grounds. And although most everyone agrees that the cases mark a break with past liberal pleading rules and have changed pleading practice, there is little agreement about precisely how the cases have affected ultimate outcomes. Indeed, there is much confusion about what exactly the new rules require of a pleader.

In this Article, …

Hedging Effectiveness Under Conditions Of Asymmetry, Jim Hanly, John Cotter

Articles

We examine whether hedging effectiveness is affected by asymmetry in the return distribution by applying tail specific metrics, for example, Value at Risk, to compare the hedging effectiveness of short and long hedgers. Comparisons are applied to a number of hedging strategies including OLS, and both symmetric and asymmetric GARCH models. We apply our analysis to a dataset consisting of S&P500 index cash and futures containing symmetric and asymmetric return distributions chosen ex-post. Our findings show that asymmetry reduces out-of-sample hedging performance and that significant differences occur in hedging performance between short and long hedgers.

Resilience And Law As A Theoretical Backdrop For Natural Resource Management: Flood Management In The Columbia River Basin, Barbara Cosens

Articles

The 1964 Columbia River Treaty entered by the United States and Canada for mutual benefits in flood control and hydropower generation is under review in anticipation of expiration of certain flood control provisions in 2024. This Article asserts that nonstructural measures should be the primary focus of new expenditure on flood risk management in the Columbia River Basin over the next sixty-year period of treaty implementation to align flood risk management with management for ecosystem resilience. Resilience is the measure of the capacity of a system to maintain important functions, structures, identity, and feedback through adaptation in the face of …

The Falsity-Scienter Inference, Wendy Gerwick Couture

Articles

No abstract provided.

The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe

Articles

The United States Supreme Court over the last decade has selectively whittled away at the scope and availability of the death penalty by exempting certain groups from execution under the Eighth Amendment. In 2002 the court ruled that executing mentally retarded criminals violates the Constitution's ban on cruel and unusual punishment. In 2005 the court ruled that the Constitution forbids the execution of individuals who were under the age of 18 when they committed their crimes. Currently there is an active debate on whether to extend the categorical exemptions created by the Court to the mentally ill. At the forefront …

Waiting For Hohfeld: Property Rights, Property Privileges, And The Physical Consequences Of Word Choice, Jerrold A. Long

Articles

An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation appears consistent with a property rights meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to "protect" those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word …

Overcoming Neoliberal Hegemony In Community Development: Law, Planning, And Selected Lamarckism, Jerrold A. Long

Articles

No abstract provided.

No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton

Articles

No abstract provided.

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

Articles

No abstract provided.

Criminal Child Neglect And The Free Range Kid: Is Overprotective Parenting The New Standard Of Care?, David Pimentel

Articles

No abstract provided.

Conservation Reliant-Species, Dale Goble

Articles

A species is conservation reliant when the threats that it faces cannot be eliminated, but only managed. There are two forms of conservation reliance: population- and threat-management reliance. We provide an overview of the concept and introduce a series of articles that examine it in the context of a range of taxa, threats, and habitats. If sufficient assurances can be provided that successful population and threat management will continue, conservation-reliant species may be either delisted or kept off the endangered species list. This may be advantageous because unlisted species provide more opportunities for a broader spectrum of federal, state, tribal, …

Beyond Chalk And Talk: The Law Classroom Of The Future, Timothy W. Floyd, Karen J. Sneddon, Oren R. Griffin

Articles

Law schools are rethinking the traditional Langdellian classroom as they construct the law classroom of the future. Although the reform of legal education has long been heralded, law schools are now on the cusp of actual change. Carnegie’s Educating Lawyers and the Clinical Legal Education Association’s Best Practices for Legal Education are promoting a rethinking of the law classroom. Also encouraging the examination of legal education are changes in the incoming student population, such as the influx of students from the Millennial Generation; technological innovations; and shifting realities and economics of law practice, such as the increased focus on efficiency …

Confronting The Invisible Witness: The Use Of Narrative To Neutralize Capital Jurors’ Implicit Racial Biases, Pamela A. Wilkins

Articles

How can capital defense lawyers craft narratives that neutralize jurors’ unconscious racial and ethnic biases? A well-developed body of research in cognitive psychology indicates that despite even the best of intentions and the absence of conscious prejudice, most Americans harbor unconscious biases against African Americans. These biases influence what we actually perceive, how we interpret what we perceive, and how we act. For reasons related to the content and structure of capital sentencing trials, these unconscious biases are particularly likely to influence capital jurors. In effect, unconscious racial bias acts as an invisible witness against the African American defendant, buttressing …

Regulatory Moratoria, Kathryn A. Watts

Articles

Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time.

As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states …

Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine

Articles

No abstract provided.