Law Commons^™

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

A New Introduction To American Constitutionalism, Mark Graber

Mark Graber

A New Introduction to American Constitutionalism is the first text to study the entirety of American constitutionalism, not just the traces that appear in Supreme Court decisions. Mark A. Graber both explores and offers original answers to such central questions as: What is a Constitution? What are fundamental constitutional purposes? How are constitutions interpreted? How is constitutional authority allocated? How do constitutions change? How is the Constitution of the United States influenced by international and comparative law? and, most important, How does the Constitution work? Relying on an historical/institutional perspective, the book illustrates how American constitutionalism is a distinct form …

Access And Exclusion Rights In Electronic Media:Complex Rules For A Complex World, Daniel A. Farber

Daniel A Farber

No abstract provided.

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

What’S Age Got To Do With It? Supreme Court Appointees And The Long Run Location Of The Supreme Court Median Justice, Matthew L. Spitzer

Matthew L Spitzer

For approximately the past 40 years Republican Presidents have appointed younger Justices than have Democratic Presidents. Depending on how one does the accounting, the average age difference will vary, but will not go away. This Article posits that Republicans appointing younger justices than Democrats may have caused a rightward shift in the Supreme Court. We use computer simulations to show that if the trend continues the rightward shift will likely increase. We also to produce some very rough estimates of the size of the ideological shift, contingent on the size of the age differential. In addition, we show that the …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Regulatory Takings: Survey Of A Constitutional Culture, James Valvo

James Valvo

Fifth Amendment property protections under the Takings Clause have grown increasingly contentious as governing entities have used regulations to limit what property owners can do with their land. This paper profiles regulatory takings jurisprudence from Pennsylvania Coal, to Penn Central, to Nollan and Dolan, and Tahoe-Sierra. The paper also examines conceptual constructs that have shaped the field’s evolution, including: the doctrine’s origin, the nuisance exception, the changed circumstances argument, unconstitutional conditions, temporary takings and the denominator problem.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Aaron J Shuler

Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …

Neoliberalism And The Law Reassessing Historical Materialist Analysis Of The Law For The 21st Century, Justin Schwartz

Justin Schwartz

Historical materialism has been called in question by the triumph of neoliberalism and the fall of Communism. I show, by consideration of two examples, the 2008 crisis and recent Supreme Court campaign spending First Amendment jurisprudence, that neoliberalism instead vindicates the explanatory power of (non-mechanical and non-deterministic) historical materialism in accounting for a wide range of recent legal developments in legislation, executive (in)action, and judicial decision-making.

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …