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Articles 91 - 95 of 95
Full-Text Articles in Law
The Myth Of The Software Patent Thicket, Ronald J. Mann
The Myth Of The Software Patent Thicket, Ronald J. Mann
ExpressO
No abstract provided.
Procedural Justice, Lawrence B. Solum
Procedural Justice, Lawrence B. Solum
ExpressO
The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …
Mixed Signals: Reconsidering The Political Economy Of Judicial Deference To Administrative Agencies, Matthew C. Stephenson
Mixed Signals: Reconsidering The Political Economy Of Judicial Deference To Administrative Agencies, Matthew C. Stephenson
ExpressO
This paper investigates rational choice explanations for patterns of Supreme Court decision-making with respect to the appropriate level of judicial deference to administrative agency decisions. In particular, I assess empirically the thesis that the Supreme Court expands deference when the Supreme Court is ideologically closer to the executive than to the circuit courts, and contracts deference when the opposite is true. I find little to no evidence supporting this "rational choice" theory of judicial deference. Given this surprising null finding, I offer alternative explanations for the data and suggest directions for future research.
Rethinking Public Engagement In The Administrative State, Mariano-Florentino Cuellar
Rethinking Public Engagement In The Administrative State, Mariano-Florentino Cuellar
ExpressO
This Article presents an empirical, doctrinal, and theoretical critique of public engagement in the modern administrative state. The legitimacy of the administrative state depends on the claim that it provides opportunities for public engagement as well as a mechanism for expert scientific decisionmaking. A typical rulemaking proceeding lets experts make technical judgments about terrorism, transportation, or telecommunications subject to court review guarding against arbitrariness. The whole process is then enmeshed in a system that is supposed to provide engagement – and therefore democratic accountability -- through presidential appointments and control, congressional oversight, and the public notice-and-comment process. This existing approach …
National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock
National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock
ExpressO
In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …