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Articles 1 - 30 of 101
Full-Text Articles in Law
Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez
Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez
Faculty Scholarship
No abstract provided.
Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez
Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez
Faculty Scholarship
No abstract provided.
Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins
Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins
Faculty Scholarship
Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …
The Sutherland Report: A Missed Opportunity For Genuine Debate On Trade, Globalization, And Reforming The Wto, Joost H. B. Pauwelyn
The Sutherland Report: A Missed Opportunity For Genuine Debate On Trade, Globalization, And Reforming The Wto, Joost H. B. Pauwelyn
Faculty Scholarship
In January 2005, at the 10th anniversary of the organization, the World Trade Organization (WTO) issued the long-awaited high-level panel report on The Future of the WTO. This essay explains why the so-called Sutherland Report, named after one of its authors, is likely to be regarded by history as a missed opportunity. The report was written by insiders, focuses on insider problems and offers what are essentially insider-based solutions. The essay addresses two specific foundational problems skirted in the Sutherland report: (i) the WTO's protectionist/producer bias and (ii) the question of coordination and coherence with other international organizations. It also …
The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels
The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels
Faculty Scholarship
Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses This paper does not set out its …
Wartime Security And Constitutional Liberty: Detainees, Erwin Chemerinsky
Wartime Security And Constitutional Liberty: Detainees, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Tax Or Welfare - The Administration Of The Earned Income Tax Credit, Lawrence A. Zelenak
Tax Or Welfare - The Administration Of The Earned Income Tax Credit, Lawrence A. Zelenak
Faculty Scholarship
No abstract provided.
We Are All Saying Much The Same Thing: A Rejoinder To The Comments Of Professors Coffee, Macy And Simon, Steven L. Schwarcz
We Are All Saying Much The Same Thing: A Rejoinder To The Comments Of Professors Coffee, Macy And Simon, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.
Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller
Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller
Faculty Scholarship
This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …
Justification, Legitimacy, And Administrative Governance, Matthew D. Adler
Justification, Legitimacy, And Administrative Governance, Matthew D. Adler
Faculty Scholarship
Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that …
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck
Faculty Scholarship
No abstract provided.
Exiting Treaties, Laurence R. Helfer
Exiting Treaties, Laurence R. Helfer
Faculty Scholarship
This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.
2003-2004 Supreme Court Update, Erwin Chemerinsky
2003-2004 Supreme Court Update, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Judging The Law Of Politics, Guy-Uriel Charles
Judging The Law Of Politics, Guy-Uriel Charles
Faculty Scholarship
In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship …
A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel
A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel
Faculty Scholarship
No abstract provided.
The Limits Of Fourth-Generation Warfare, Charles J. Dunlap Jr.
The Limits Of Fourth-Generation Warfare, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.
Innocence, Harmless Error, And Federal Wrongful Conviction Law, Brandon L. Garrett
Innocence, Harmless Error, And Federal Wrongful Conviction Law, Brandon L. Garrett
Faculty Scholarship
This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth …
Tripoint Issues In Maritime Boundary Delimitation, Coalter G. Lathrop
Tripoint Issues In Maritime Boundary Delimitation, Coalter G. Lathrop
Faculty Scholarship
Tripoint issues arise in maritime boundary delimitation where the maritime areas of three coastal states converge and overlap. Where this trilateral geographic relationship exists, so to does the potential for a tripoint at which three bilateral maritime boundaries could intersect. How should the endpoint(s) of the bilateral boundary be defined in light of possible third party interests? The goal of this report is to provide boundary practitioners with some answers to that question based on the maritime boundary delimitation practice of states, the International Court of Justice, and maritime boundary tribunals.
Captured By Evil: The Idea Of Corruption In Law, Laura S. Underkuffler
Captured By Evil: The Idea Of Corruption In Law, Laura S. Underkuffler
Faculty Scholarship
Corruption is one of the most powerful words in the English language. When it comes to the treatment of corruption by law, however, corruption is a troubled concept. With increasing recognition of the costs of corruption for economic development, democratic governance, international aid programs, and other world goals, attempts to articulate what this destructive force is have led to an avalanche of theoretical writing. In the last fifteen years, corruption has been variously defined as the violation of law, a public servant's breach of public duty, an agent's betrayal of a principal's interests, the pursuit of secrecy, the denial of …
Precautionary Regulation In Europe And The United States: A Quantitative Comparison, Jonathan B. Wiener, James K. Hammitt, Brendon Swedlow, Denise Kall, Zheng Zhou
Precautionary Regulation In Europe And The United States: A Quantitative Comparison, Jonathan B. Wiener, James K. Hammitt, Brendon Swedlow, Denise Kall, Zheng Zhou
Faculty Scholarship
Much attention has been addressed to the question of whether Europe or the United States adopts a more precautionary stance to the regulation of potential environmental, health, and safety risks. Some commentators suggest that Europe is more risk-averse and precautionary, whereas the US is seen as more risk-taking and optimistic about the prospects for new technology. Others suggest that the US is more precautionary because its regulatory process is more legalistic and adversarial, while Europe is more lax and corporatist in its regulations. The flip-flop hypothesis claims that the US was more precautionary than Europe in the 1970s and early …
Book Review, Jonathan B. Wiener
Book Review, Jonathan B. Wiener
Faculty Scholarship
Reviewing, Richard A. Posner, Catastrophe: Risk and Response (Oxford University Press, 2004) and Jared Diamond, Collapse: How Societies Choose to Fail or Succeed (Viking, 2005)
In Defense Of Filibustering Judicial Nominations, Erwin Chemerinsky, Catherine Fisk
In Defense Of Filibustering Judicial Nominations, Erwin Chemerinsky, Catherine Fisk
Faculty Scholarship
No abstract provided.
Mutual Fund Expense Disclosures: A Behavioral Perspective, James D. Cox, John W. Payne
Mutual Fund Expense Disclosures: A Behavioral Perspective, James D. Cox, John W. Payne
Faculty Scholarship
Mutual funds have enjoyed phenomenal growth with their numbers exceeding the number of public companies and their assets aggregating in excess of $9 trillion. Increasingly they are the investment instrument of choice by the proverbial widows, widowers and orphans, and a few school teachers are included as well. But how are best can that choice be one that is not only informed but informed in a way more likely to elicit a wise decision? This paper examines from a behavioral perspective how regulation can best disclose information related to two key factors for investors to compare competing mutual funds: fund …
Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter
Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter
Faculty Scholarship
A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the …
The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, Jerome H. Reichman, Keith H. Maskus
The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, Jerome H. Reichman, Keith H. Maskus
Faculty Scholarship
Global trade and investment have become increasingly liberalized in recent decades. This liberalization has lately been accompanied by substantive new requirements for strong minimum standards of intellectual property (IP) protection, which moves the world economy toward harmonized private rights in knowledge goods. While this trend may have beneficial impacts in terms of innovation and technology diffusion, such impacts would not be evenly distributed across countries. Deep questions also arise about whether such globalization of rights to information will raise roadblocks to the national and international provision of such public goods as environmental protection, public health, education, and scientific advance. This …
Uncovering The Invisible Profile Of Medical Malpractice Litigation: Insights From Florida, Neil Vidmar, Paul Lee, Kara Mackillop, Kieran Mccarthy, Gerald Mcgwin
Uncovering The Invisible Profile Of Medical Malpractice Litigation: Insights From Florida, Neil Vidmar, Paul Lee, Kara Mackillop, Kieran Mccarthy, Gerald Mcgwin
Faculty Scholarship
No abstract provided.
Book Review: Fairness Vs. Welfare, Matthew D. Adler
Book Review: Fairness Vs. Welfare, Matthew D. Adler
Faculty Scholarship
Reviewing Louis Kaplow & Steven Shavell, Fairness versus Welfare (2002)
Medical Malpractice And The Tort System In Illinois (Report To The Illinois State Bar Association, May 2005), Neil Vidmar
Medical Malpractice And The Tort System In Illinois (Report To The Illinois State Bar Association, May 2005), Neil Vidmar
Faculty Scholarship
A report to the Illinois State Bar Association of a study examining the incidence, frequency, size of verdicts and other aspects of the medical malpractice system in Illinois. The study looked at statewide data where available, concentrating on Cook and DuPage counties, and Madison and St. Clair counties. The study concludes that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises.
Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper
Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper
Faculty Scholarship
No abstract provided.
Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith
Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith
Faculty Scholarship
This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the …