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Articles 1 - 30 of 39
Full-Text Articles in Law
A Contractarian Approach To Unconscionability, Horacio Spector
A Contractarian Approach To Unconscionability, Horacio Spector
Chicago-Kent Law Review
In this paper I discuss two nonpaternalistic defenses of the doctrine of unconscionability in contract law. The first approach, proposed by Seana Shiffrin, relies on the moral ban to collaborate with other agents' immoral plans. Because this prohibition falls also on the judge, she must refrain from enforcing unfair or exploitative contracts. The second approach regards the unconscionability doctrine as one limitation on freedom of contract that rational contractors would choose in the course of adopting the fundamental terms of social cooperation. I assess the implications and merits of the two approaches. 'The contractarian approach is capable of justifying procedural …
Tanks In The Streets: Suvs, Design Defects, And Ultrahazardous Strict Liability, Kevin Case
Tanks In The Streets: Suvs, Design Defects, And Ultrahazardous Strict Liability, Kevin Case
Chicago-Kent Law Review
SUV rollover crashes have been well-publicized and thoroughly litigated. Less attention has been paid to the lethal risks created by SUVs—particularly the latest "behemoth" SUVs like Hummers—to the occupants of other vehicles and pedestrians. Due to the design of SUVs, which are stiffer, heavier, and ride higher than cars, a collision between an SUV and a passenger car often results in catastrophic damage and injury to the occupants of the car, particularly when an SUV strikes a car broadside. Moreover, the design features of SUVs that create these dangers provide no utility or value to society. The "benefit" provided by …
Natural Rights And Two Conceptions Of Promising, Peter Vallentyne
Natural Rights And Two Conceptions Of Promising, Peter Vallentyne
Chicago-Kent Law Review
Does one have an obligation to keep one's promises? I answer this question by distinguishing between two broad conceptions of promising. On the normativized conception of promising, a promise is made when an agent validly offers to undertake an obligation to the promisee to perform some act (i.e., give up a liberty-right in relation to her) and the promisee validly accepts the offer. Keeping such promises is morally obligatory by definition. On the non-normativized conception, the nature of promising does not conceptually entail any connection with the obligation to keep promises. A promise might be understood, for example, as an …
Table Of Contents - Issue 1, Chicago-Kent Law Review
Table Of Contents - Issue 1, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
Promises, Expectations, And Rights, Eduardo Rivera-Lopez
Promises, Expectations, And Rights, Eduardo Rivera-Lopez
Chicago-Kent Law Review
I address the problem of why promises create obligations. First, I spell out and object the so-called "expectational account" according to which the duty to keep our promises arises from the fact that, when we promise to do something, we create an expectation in the promisee, which we have the duty not to disappoint. It has been claimed that this account is circular since we can only raise the expectation, in the appropriate sense, if we already have the moral duty to keep our promise. I argue, against Scanlon and others, that such circularity is unavoidable. In the second section, …
Kant On "Why Must I Keep My Promise?", B. Sharon Byrd, Joanchim Hruschka
Kant On "Why Must I Keep My Promise?", B. Sharon Byrd, Joanchim Hruschka
Chicago-Kent Law Review
This Article claims that for Kant a contractual obligation generates a universal right, meaning a right against everyone. Accordingly, a right to performance of a contract is more similar to a right in rem than to a right in personam, and failing to perform a contract is more similar to theft than to moral failure to do as promised. Part I shows that for Kant accepting a promise means taking possession of the promisor's choice to commit an act in the future. Part II explains why it is possible to acquire someone else's choice and how one does so in …
Rational Choice And Reasonable Interactions, Bruce Chapman
Rational Choice And Reasonable Interactions, Bruce Chapman
Chicago-Kent Law Review
Game theory probably offers the most well-known account of how rational agents interact in strategic situations. The rational thought processes that are involved, while enormously sophisticated, remain very private for each agent. Less well known is the alternative account that is offered by law and legal theory, an account where agents interact, and understand their interaction, under the idea of public (or objective) reasonableness. This Article argues, using some simple examples, that the legal account does better than the game theoretic account in explaining the actual levels of cooperation and coordination we observe across rational individuals in strategic situations.
Does Today's International Trade Agreement Bind Tomorrow's Citizen?, Gopal Sreenivasan
Does Today's International Trade Agreement Bind Tomorrow's Citizen?, Gopal Sreenivasan
Chicago-Kent Law Review
Focusing on the example of the General Agreement on Trade in Services (GATS), this Article begins by describing an important analogy between domestic Bills of Rights and enforceable international trade agreements. Both effectively disable the majority in later generations from certain exercises of its domestic legislative power. While there is some kind of democratic presumption against disabling the majority in any generation from exercising domestic legislative power, various argumentative strategies have been employed to defeat this presumption in the domestic constitutional case. This Article reviews these strategies and argues next that they cannot be generalized to the case of international …
Re-Enfranchisement Laws Provide Unequal Treatment: Ex-Felon Re-Enfranchisement And The Fourteenth Amendment, Cherish M. Keller
Re-Enfranchisement Laws Provide Unequal Treatment: Ex-Felon Re-Enfranchisement And The Fourteenth Amendment, Cherish M. Keller
Chicago-Kent Law Review
Individuals convicted of a felony lose the right to vote at least temporarily in most states, and ex-felons are disenfranchised for life in seventeen states. There are often procedures by which ex-felons may regain the right to vote in the lifetime disenfranchisement states, but the procedures vary widely and are often unclear and unrealistic. The right to vote is fundamental once provided by a state, and wealth discrimination coupled with a fundamental right merits strict scrutiny. While ex-felon disenfranchisement may be constitutional, once a state provides a procedure by which ex-felons may regain the right to vote, that procedure must …
It's As Clear As Mud: A Call To Amend The Federal Trademark Dilution Act Of 1995, Matthew C. Oesterle
It's As Clear As Mud: A Call To Amend The Federal Trademark Dilution Act Of 1995, Matthew C. Oesterle
Chicago-Kent Law Review
The Federal Trademark Dilution Act ("FTDA") has failed to protect, in the manner intended by Congress, the subset of trademarks that have achieved a high threshold of fame from subsequent uses that dilute or tarnish those trademarks. Courts have applied inconsistent measures of fame to the trademarks of the litigants before them and a poor wording choice in the drafting of the FTDA has led the Supreme Court to conclude that famous trademarks must sustain actual harm to their distinctiveness before their owners can receive the equitable remedy provided under the Act. Based on the legislative history of the Act, …
Amending The Natural Born Citizen Requirement: Globalization As The Impetus And The Obstacle, Sarah P. Herlihy
Amending The Natural Born Citizen Requirement: Globalization As The Impetus And The Obstacle, Sarah P. Herlihy
Chicago-Kent Law Review
With the rise of non-native-born American politicians, the natural born citizen requirement in the United States Constitution has received much publicity. This note examines the history and background of the requirement that our President be born in this country. This note then focuses on how the increase of globalization should compel Americans to pass a constitutional amendment to repeal the natural born citizen requirement and discusses the reasons why many Americans oppose such a constitutional amendment. The note then explores some of the current misconceptions about globalization and concludes that Americans' fears and misconceptions of globalization may very well prevent …
Introduction, Horacio Spector
Bounded Rationality Of Homo Classificus: The Law And Bioeconomics Of Social Norms As Classification, Janet T. Landa
Bounded Rationality Of Homo Classificus: The Law And Bioeconomics Of Social Norms As Classification, Janet T. Landa
Chicago-Kent Law Review
In the "New Chicago School" ("NCS") law and economics literature that emerged in the 1990s, social norms play an important function in their dual role as constraints on behavior and as signaling devices. Missing in the NCS social norms literature, however, is any treatment of social norms as classification, a concept which is fundamental to a more complete theory of social norms. In this Article, I show that my early 1980s theory of social norms embedded in the ethnically homogeneous middleman groups ("EHMGs") clearly falls squarely within the NCS tradition. Since the 1980s, I have extended my law and economics …
Table Of Contents - Issue 3, Chicago-Kent Law Review
Table Of Contents - Issue 3, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
The Legal Function Of Ritual, Geoffrey P. Miller
The Legal Function Of Ritual, Geoffrey P. Miller
Chicago-Kent Law Review
This Article offers a theory of ritual as social control. It argues that an important function of rituals is to align personal identities with social roles. The celebratory aspect of rituals reflects the sense of felicity that accompanies the successful alignment of identity and role. Violence in ritual reflects the fact that the alignment of identity and role is compulsory and often imposes significant costs on personal autonomy. Within the framework of this theory, rituals can be classed into three general types: rituals of reformation (e.g., marriage, initiation, and installation) help align identity and role; rituals of renewal (e.g., religious …
Pets Or Meat, Mary Anne Case
Pets Or Meat, Mary Anne Case
Chicago-Kent Law Review
I am interested in exploring questions of whether and when commingling commodification with affection is more problematic than naked commodification. My title comes from the scene in the Michael Moore film Roger and Me depicting the marketing of rabbits. The dynamic I am interested in is common, not only in human relations with other animals, from lab and farm animals to pets, but also in pink collar work. The secretary given flowers instead of a bonus, the housekeeper whose employers say of her, "she's one of the family"—each of these cases is troubling, although it is not clear that more …
For Love Or Money: Some Emotional Foundations Of Rationality, Gerald L. Clore
For Love Or Money: Some Emotional Foundations Of Rationality, Gerald L. Clore
Chicago-Kent Law Review
Having emotions represents what people value. Just as cognition concerns whether things are true and false; emotion is about whether they are good or bad. Thus, emotion may be a necessity for rationality, rather than its antithesis. Our emotion research shows that emotional feelings provide compelling information about the value of outcomes, actions, and objects. As a result, although it can also lead to excess, emotions provide a coherent basis for judgment and decision. In addition, I suggest that the current psychological theory is helpful in thinking about rationality because it assumes more than one mode of reasoning. Similarly, current …
Neuroeconomics And Rationality, Terrence Chorvat, Kevin Mccabe
Neuroeconomics And Rationality, Terrence Chorvat, Kevin Mccabe
Chicago-Kent Law Review
The assumption of rationality is both one of the most important and most controversial assumptions of modern economics. This Article discusses what current experimental economic as well as neuroscience research tells us about the relationship between rationality and the mechanisms of human decision making. The Article explores the meaning of rationality, with a discussion of the distinction between traditional constructivist rationality and more ecological concepts of rationality. The Article argues that ecological notions of rationality more accurately describe both human neural mechanisms as well as a wider variety of human behavior than do constructivist notions of rationality.
Roundtable Discussion: Must We Choose Between Rationality And Irrationality?, Chicago-Kent Law Review
Roundtable Discussion: Must We Choose Between Rationality And Irrationality?, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
By Its Fruits Shall Ye Know; Axson-Flynn V. Johnson: More Rotted Fruit From Employment Division V. Smith, Bradley C. Johnson
By Its Fruits Shall Ye Know; Axson-Flynn V. Johnson: More Rotted Fruit From Employment Division V. Smith, Bradley C. Johnson
Chicago-Kent Law Review
The Supreme Court's decision in Employment Division v. Smith has been widely criticized for decimating the Free Exercise Clause and leaving free exercise rights vulnerable. Critics maintained that the Supreme Court's decision in Smith to shift protection of free exercise rights to primarily the political process would have devastating consequences for religious individuals. In Axson-Flynn v. Johnson, decided fifteen years after Smith, one of those consequences has become clear: a state university can constitutionally require an individual to swear as part of an acting program, even if swearing violates that individual's deeply held religious beliefs. This result of …
Rational Choice And Rat Choice: Some Thoughts On The Relationship Among Rationality, Markets, And Human Beings, Edward L. Rubin
Rational Choice And Rat Choice: Some Thoughts On The Relationship Among Rationality, Markets, And Human Beings, Edward L. Rubin
Chicago-Kent Law Review
For about 2,500 years, the term rationality has been used in the Western world to describe the application of human reason to a wide range of problems or issues. In the past thirty years, however, the term has been appropriated by microeconomists and microeconomically-oriented social scientists to mean something quite different—the application of instrumental rationality to the particular problem of material self-interest maximization. This Article will attempt to recapture the original meaning of the term rationality, and explain the place of the microeconomic model within it. Using Weber's distinction between instrumental rationality and values rationality, it will argue that all …
Introduction, Claire A. Hill
Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein
Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein
Chicago-Kent Law Review
Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific "dual process" perspective that distinguishes between "deliberative" and "emote" control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence …
Nonprofit Interjurisdictionality, Norman I. Silber
Nonprofit Interjurisdictionality, Norman I. Silber
Chicago-Kent Law Review
The federal system of "dual sovereignties" guarantees that most American legal regimes tolerate jurisdictional overlap between the enforcement authority of federal and state agencies. This Article explores interjurisdictional overlap in the context of nonprofit legal supervision. Notwithstanding the common assumption that "states police mission while the IRS polices money," it is suggested here that the overlap has become much broader than generally has been supposed; that over a wide range of common misconduct among the preponderance of organizations in the nonprofit sector, either the Internal Revenue Service or state authorities could, if they wanted to and in no particular order, …
Charitable Accountability And Reform In Nineteenth-Century England: The Case Of The Charity Commission, James J. Fishman
Charitable Accountability And Reform In Nineteenth-Century England: The Case Of The Charity Commission, James J. Fishman
Chicago-Kent Law Review
Fraudulent behavior by charitable fiduciaries brings universal condemnation. However, disapprobation by itself never has translated into an efficient system for the accountability of charitable assets. This Article examines the nineteenth-century struggle to form a charity commission to oversee English charitable endowments and the ultimately disappointing result. Administrative reform can have an interminable germination as the creation of the Charity Commission demonstrates. Even though the need for reform of charitable trust administration was long recognized and a consensus reached on the structure of the oversight body though not its scope, the resulting agency came under almost immediate criticism and was disliked, …
Erisa Section 404(C) And Investment Advice: What Is An Employer Or Plan Sponsor To Do?, Stefanie Kastrinsky
Erisa Section 404(C) And Investment Advice: What Is An Employer Or Plan Sponsor To Do?, Stefanie Kastrinsky
Chicago-Kent Law Review
When Enron collapsed, many of its employees were not only out of a job, but those who had invested a portion of their retirement savings in Enron stock watched those funds dissipate. This unfortunate event engendered a renewed interest in ERISA section 404(c). Under ERISA section 404(c), as long as employee-participants are in control of their 401(k) investment decisions, and the plan sponsor is prudent in selecting fund options, the plan sponsor bears no responsibility for investment losses incurred in participants' accounts. Although studies show that many people cannot make truly educated investment choices, plan sponsors currently cannot offer investment …
Table Of Contents - Issue 2, Chicago-Kent Law Review
Table Of Contents - Issue 2, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
There Ought To Be A Law: The Disclosure Focus Of Recent Legislative Proposals For Nonprofit Reform, Dana Brakman Reiser
There Ought To Be A Law: The Disclosure Focus Of Recent Legislative Proposals For Nonprofit Reform, Dana Brakman Reiser
Chicago-Kent Law Review
This Article explores and evaluates the disclosure focus of recent legislative proposals for nonprofit reform. It begins by describing legislative proposals under consideration in various states and the U.S. Senate Finance Committee. This summary demonstrates the emphasis these proposals place on disclosure as a technique for enhancing nonprofit accountability. The Article then evaluates the ability of such disclosure mechanisms to achieve nonprofit accountability gains by improving the behavior of nonprofit actors, facilitating nonprofit enforcement by regulators or others, or both. Unfortunately, due to the structure and characteristics of nonprofit organizations and the resources available for nonprofit enforcement, this analysis reveals …
Introduction, Dana Brakman Reiser, Evelyn Brody
Introduction, Dana Brakman Reiser, Evelyn Brody
Chicago-Kent Law Review
No abstract provided.
Charity Governance: What's Trust Law Got To Do With It?, Evelyn Brody
Charity Governance: What's Trust Law Got To Do With It?, Evelyn Brody
Chicago-Kent Law Review
The traditionally distinct regimes for governing charitable trusts and nonprofit corporations have been conforming. At the same time, by continuing to make distinctions based on organizational form rather than structure and operations, we might be asking the wrong questions. To what extent do trusts and corporations have irreducible legal differences? Key issues that initially appear unique to trust law on closer inspection turn out to apply to some or all corporate charities—and corporate doctrine might be more appropriate for charitable trusts having a broad governing board, In the end, the distinction between "trust law" and "corporate law" might make less …