Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law (4188)
- Constitutional Law (758)
- Supreme Court of the United States (499)
- Courts (456)
- State and Local Government Law (366)
-
- Legislation (360)
- Criminal Law (350)
- Legal History (332)
- Contracts (307)
- Torts (301)
- Evidence (285)
- Law Enforcement and Corrections (267)
- Property Law and Real Estate (248)
- Estates and Trusts (245)
- Criminal Procedure (244)
- Law and Society (241)
- Civil Rights and Discrimination (233)
- Jurisdiction (228)
- Labor and Employment Law (227)
- Legal Writing and Research (214)
- Business Organizations Law (191)
- Administrative Law (188)
- Banking and Finance Law (170)
- Law and Economics (169)
- Litigation (167)
- Commercial Law (159)
- Securities Law (159)
- Tax Law (159)
- Jurisprudence (158)
- Antitrust and Trade Regulation (157)
- Keyword
-
- United States Supreme Court (254)
- History (132)
- Judicial review (102)
- Book reviews (99)
- Constitution (99)
-
- Law reform (87)
- Race and law (87)
- State courts (87)
- Liability (82)
- Due process (79)
- Negligence (76)
- Corporations (71)
- Federal courts (71)
- Michigan (70)
- Regulation (69)
- Police (68)
- Fifth Amendment (67)
- Lawyers (62)
- Morality (55)
- Trials (54)
- Fraud (53)
- Racism (51)
- Statutory interpretation (50)
- Competition (47)
- Sherman Act (47)
- Federalism (45)
- Justice (45)
- New York (45)
- Clayton Act (44)
- Congress (44)
- Publication Year
Articles 421 - 450 of 4292
Full-Text Articles in Entire DC Network
Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan
Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan
Michigan Law Review
This Article offers experimental evidence that parties are more willing to exploit efficient-breach opportunities when the contract in question includes a liquidated-damages clause. Economists claim that the theory of efficient breach allows us to predict when parties will choose to breach a contract if the legal remedy for breach is expectation damages. However, the economic assumption of rational wealth-maximizing actors fails to capture important, shared, nonmonetary values and incentives that shape behavior in predictable ways. When interpersonal obligations are informal or underspecified, people act in accordance with shared community norms, like the moral norm of keeping promises. However, when sanctions …
Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn
Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn
Michigan Law Review
Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to the United States. I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …
Fixing Patent Boundaries, Tun-Jen Chiang
Fixing Patent Boundaries, Tun-Jen Chiang
Michigan Law Review
The claims of a patent are its boundaries, defining the scope of exclusion. This boundary function of claims is undermined by the fact that claims can be changed throughout the life of the patent, thereby moving the patent boundary. A boundary that can be moved at-will is one that the public cannot rely upon. This Article explores the problems of malleable patent boundaries. If a claim can be amended to permit a patentee to capture something he did not foresee when filing the patent application, the amendment confers an unexpected windfall that did not contribute to incentives to invent before …
A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton
A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton
Michigan Law Review
I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, more …
Relative Doubt: Familial Searches Of Dna Databases, Erin Murphy
Relative Doubt: Familial Searches Of Dna Databases, Erin Murphy
Michigan Law Review
The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …
Engineering The Endgame, Ellen D. Katz
Engineering The Endgame, Ellen D. Katz
Michigan Law Review
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …
When A Company Confesses, Christopher Jackson
When A Company Confesses, Christopher Jackson
Michigan Law Review
Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …
Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry
Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry
Michigan Law Review
Part I of our Review discusses the central premises of Understanding Privacy, with particular attention paid to Solove's pragmatic methodology and his taxonomy of privacy. We introduce his pluralistic approach to conceptualizing privacy, which urges decision makers to assess privacy problems in context, and we explore his view that meaningful choices about privacy depend on an appreciation of how privacy benefits society as a whole. We also describe how Solove's taxonomy aims to account for the variety of activities that threaten privacy. In Part II, we analyze the strengths of Solove's pragmatism by demonstrating its functionality and flexibility in …
Commerce, Jack M. Balkin
Commerce, Jack M. Balkin
Michigan Law Review
This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power …
Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges, John P. Bringewatt
Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges, John P. Bringewatt
Michigan Law Review
In March 2008, the Supreme Court decided Snyder v. Louisiana, the latest in the line of progeny of Batson v. Kentucky. This Note demonstrates that Snyder is part of a historical pattern of Supreme Court decisions concerning the use of peremptory challenges in which the Court has moved away from permitting the unfettered use of the peremptory challenge in favor of stronger Equal Protection considerations. Snyder alters the requirements for trial judges in deciding Batson challenges by requiring them to provide some explanation of their reasons for accepting a prosecutor's justification of a peremptory challenge. Snyder is the …
"Once Victim, Always Victim": Compensated Individuals Under The Amended Sentencing Guidelines On Fraud, Jacqueline Harrington
"Once Victim, Always Victim": Compensated Individuals Under The Amended Sentencing Guidelines On Fraud, Jacqueline Harrington
Michigan Law Review
Until recently, courts disagreed over whether individuals who were compensated by a third party such as a bank or insurance company ought to count as victims for purposes of the multiple-victim sentencing enhancement in the Federal Sentencing Guidelines on Fraud. The most recent Amendments to the Guidelines resolve this split, permitting compensated individuals to be counted as victims where their identity was used in the commission of the fraud. However, the new Guidelines do not resolve a separate split, likely to become more divisive under the new Guidelines, over whether both compensated individuals and their compensators can simultaneously be treated …
Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel
Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel
Michigan Law Review
Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties' incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of …
Shareholder Compensation As Dividend, James J. Park
Shareholder Compensation As Dividend, James J. Park
Michigan Law Review
This Article questions the prevailing view that securities-fraud actions suffer from a circularity problem. Because shareholder plaintiffs are owners of the defendant corporation, it is commonly argued that shareholder compensation is a payment from shareholders to themselves with substantial transaction costs in the form of attorney fees. But shareholder compensation is no more circular than a dividend, which is a cash payment to shareholders from the company they own with substantial transaction costs in the form of taxes. In fact, shareholder compensation is less circular than a dividend because it is a transfer to shareholders who purchased stock when the …
Loss Causation And Class Certification, Steven Serajeddini
Loss Causation And Class Certification, Steven Serajeddini
Michigan Law Review
Courts have long faced difficulty interpreting loss causation under Section 10b-5 of the Securities Act of 1934. This difficulty stems from the seemingly irreconcilable conflict between this core element of common law fraud and the procedural demands of Rule 23 of the Federal Rules of Civil Procedure, the typical vehicle for a 10b-5 class action. Recently, some courts and commentators have begun to consider loss causation as an individualized inquiry that is not common among class members, and one that therefore warrants consideration at the class certification stage. The existing justifications center on the conceptually distinct 10b-5 element of reliance, …
A Sea Of Confusion: The Shipowner's Limitation Of Liability Act As An Independent Basis For Admiralty Jurisdiction, Amie L. Medley
A Sea Of Confusion: The Shipowner's Limitation Of Liability Act As An Independent Basis For Admiralty Jurisdiction, Amie L. Medley
Michigan Law Review
The Shipowner's Limitation of Liability Act of 1851 allowed the owner of a vessel to limit his liability in the case of an accident to the value of the vessel and its cargo if he could show he had no knowledge of or participation in the negligent act that resulted in the loss. In 1911, the Supreme Court decided Richardson v. Harmon, a case which was interpreted for several decades to hold that the Limitation Act formed an independent basis for admiralty jurisdiction. In a 1990 case, the Supreme Court stated in a footnote that it would not reach …
Examining Presidential Power Through The Rubric Of Equity, Eric A. White
Examining Presidential Power Through The Rubric Of Equity, Eric A. White
Michigan Law Review
In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that …
Failure Of A "Basic Assumption": The Emerging Standard For Excuse Under Mae Provisions, Nathan Somogie
Failure Of A "Basic Assumption": The Emerging Standard For Excuse Under Mae Provisions, Nathan Somogie
Michigan Law Review
The onset of the current economic crisis has led many strategic and financial acquirers to reconsider the desirability of transactions to which they had previously agreed. Because many of these agreements contain substantial termination fees, buyers have increasingly sought to be excused from their contractual obligations by invoking Material Adverse Effect ("MAE") provisions. Reliance on MAE clauses as a basis for termination has historically been risky due to a lack of clarity in the case law regarding the standard for excuse under such provisions. A recent decision by the Delaware Chancery Court, Hexion v. Huntsman, the third in a …
Stipulated Damages, Super-Strict Liability, And Mitigation In Contract Law, Saul Levmore
Stipulated Damages, Super-Strict Liability, And Mitigation In Contract Law, Saul Levmore
Michigan Law Review
The remedy of expectancy damages in contract law is conventionally described as strict liability for breach. Parties sometimes stipulate damages in advance, and may agree that the damages they stipulate shall be the exclusive remedy for breach. They may do so because of their conviction that they can, even in advance, assess damages with greater accuracy than courts, and they may be wary of litigation costs associated with the postbreach determination of expectancy damages. This Article advances two claims. First, that the familiar expectation remedy is correctly understood to involve elements of fault. There is litigation over the question of …
The Fault That Lies Within Our Contract Law, George M. Cohen
The Fault That Lies Within Our Contract Law, George M. Cohen
Michigan Law Review
Scholars and courts typically describe and defend American contract law as a system of strict liability, or liability without fault. Strict liability generally means that the reason for nonperformance does not matter in determining whether a contracting party breached. Strict liability also permeates the doctrines of contract damages, under which the reason for the breach does not matter in determining the measure of damages, and the doctrines of contract formation, under which the reason for failing to contract does not matter In my Article, I take issue with the strict liability paradigm, as I have in my prior work on …
In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott
In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott
Michigan Law Review
Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions …
An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar
An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar
Michigan Law Review
Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no "-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely …
Why Breach Of Contract May Not Be Immoral Given The Incompleteness Of Contracts, Steven Shavell
Why Breach Of Contract May Not Be Immoral Given The Incompleteness Of Contracts, Steven Shavell
Michigan Law Review
There is a widely held view that breach of contract is immoral. I suggest here that breach may often be seen as moral, once one appreciates that contracts are incompletely detailed agreements and that breach may be committed in problematic contingencies that were not explicitly addressed by the governing contracts. In other words, it is a mistake generally to treat a breach as a violation of a promise that was intended to cover the particular contingency that eventuated.
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
Michigan Law Review
This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …
A Comparative Fault Defense In Contract Law, Ariel Porat
A Comparative Fault Defense In Contract Law, Ariel Porat
Michigan Law Review
This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.
The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg
The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg
Michigan Law Review
It is often asserted that contract law is based on strict liability, not fault. This assertion is incorrect. Fault is a basic building block of contract law, and pervades the field. Some areas of contract law, such as unconscionability, are largely fault based. Other areas, such as interpretation, include sectors that are fault based in significant part. Still other areas, such as liability for nonperformance, superficially appear to rest on strict liability, but actually rest in significant part on the fault of breaking a promise without sufficient excuse. Contract law discriminates between two types of fault: the violation of strong …
Fault In Contract Law, Eric A. Posner
Fault In Contract Law, Eric A. Posner
Michigan Law Review
A promisor is strictly liable for breaching a contract, according to the standard account. However, a negligence-based system of contract law can be given an economic interpretation, and this Article shows that such a system is in some respects more attractive than the strict-liability system. This may explain why, as a brief discussion of cases shows, negligence ideas continue to play a role in contract decisions.
Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman
Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman
Michigan Law Review
Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …
Fault At The Contract-Tort Interface, Roy Kreitner
Fault At The Contract-Tort Interface, Roy Kreitner
Michigan Law Review
The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of "no liability without fault," while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law …
Could Breach Of Contract Be Immoral?, Seana Shiffrin
Could Breach Of Contract Be Immoral?, Seana Shiffrin
Michigan Law Review
Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not morally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that contractual breach is not immoral in those cases in which the legal regime would offer expectation damages because the contracting parties would not have agreed to require performance had they explicitly deliberated about the circumstances occasioning the breach. I criticize his argument for failing to justify this hypothetical-contract approach and, in any …
The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow
The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow
Michigan Law Review
The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …