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Articles 31 - 38 of 38
Full-Text Articles in Law
Unconscious Bias In Legal Interpretation, Anup Malani, Ward Farnsowrth, Dustin Guzior
Unconscious Bias In Legal Interpretation, Anup Malani, Ward Farnsowrth, Dustin Guzior
Anup Malani
What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and …
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
Abigail R. Moncrieff
This article presents a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world. The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting—the decisions that receive substantive constitutional protection under modern doctrine—are decisions that are of unusually uncertain individual and social value. The …
The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel
The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel
Jason M Stoffel
While the Clean Water Act, as it is currently structured, has few provisions that directly regulate nonpoint source pollution, the Ninth Circuit Court of Appeals, in the case Friends of Pinto Creek v. United States EPA, 504 F.3d 1007 (9th Cir. 2007), has recognized the Total Maximum Daily Load (TMDL) program as a tool that can be used by the EPA to indirectly compel states to regulate nonpoint source pollution in the nation’s impaired waters. In the context of the Ninth Circuit’s ruling, in 2010, the EPA made national headlines by pushing states to regulate nonpoint source pollution in the …
Redistricting And The Territorial Community, Nicholas Stephanopoulos
Redistricting And The Territorial Community, Nicholas Stephanopoulos
Nicholas Stephanopoulos
As the next redistricting cycle begins, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional—but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to natural geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they needlessly disrupt them. This approach, which I call the “territorial community test,” has a robust theoretical pedigree. In …
Mental Torture: A Critique Of Erasures In U.S. Law, David Luban
Mental Torture: A Critique Of Erasures In U.S. Law, David Luban
David Luban
Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering—one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes …
The People's Trade Secrets?, David S. Levine
The People's Trade Secrets?, David S. Levine
David S Levine
The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that voting machine working so that my vote gets counted? Is that public school examination fair and accurate? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government …
Cyberlaw: The Unconscionability,/ Unenforceability Of Contracts (Shrinkwrap, Clickwrap, And Browsewrap) On The Internet: A Multijurisdictional Analysis Showing The Need For Oversight., Paul J. Morrow Sr
Paul J. Morrow Sr
This paper analyzes the differences between the common law of contracts and the way various jurisdictions in the United States have applied new contract law doctrine as applied to cyber contracts. The paper also has recommendations on how to reconcile those differences. These differences could lead to a very unfair application of contract precedent essentially overturning 200 years of contract common law. This is the age of cyberspace and cyberlaw. If we do not begin to reconcile these differences, it could change the way our society does business. Do we adhere to precedent or are the changes warranted under the …
Four Property Wrongs Of Self-Storage Law, Jeffrey D. Jones
Four Property Wrongs Of Self-Storage Law, Jeffrey D. Jones
Jeffrey D Jones
Self-storage leases are troubling. Under such leases, self-storage facility owners may freely dispose of defaulting tenants’ medical and tax records, family ashes, heirlooms, etc. in the same manner as they would treat fungible items such as chairs or a bookshelf. Facility owners are legally entitled to do so through facility-sponsored auctions, most of which are unrestricted by any duty to conduct commercially reasonable sales. Still worse, these legal self-storage practices have generated a clandestine culture of treasure-hunting that often leaves tenants—some of whom default due to medical emergencies, bankruptcy or who are homeless working poor—with little opportunity either to regain …