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Articles 1 - 30 of 66
Full-Text Articles in Law
Financial Retrenchment And Institutional Entrenchment: Will Legal Education Respond, Explode, Or Just Wait It Out?, Ian Weinstein
Financial Retrenchment And Institutional Entrenchment: Will Legal Education Respond, Explode, Or Just Wait It Out?, Ian Weinstein
Faculty Scholarship
Both markets and ideas have turned against the American legal profession. Legal hiring has contracted, and law school enrollments are decreasing. The business models of big law and legal education are under pressure, current levels of student indebtedness seem unsustainable, and a hero has yet to emerge from our fragmented regulatory structures. In the realm of ideas, the information revolution has sparked deep critiques of structured knowledge and expertise, opening the roles of the law and the university in society to reexamination. We are less enamored of the scholar-lawyer and gaze with longing at technocrats. I hope that clinical law …
Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney
Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney
Faculty Scholarship
This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …
New Formalism In The Aftermath Of The Housing Crisis, Nestor M. Davidson
New Formalism In The Aftermath Of The Housing Crisis, Nestor M. Davidson
Faculty Scholarship
The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and …
The Inner Morality Of Private Law, Benjamin C. Zipursky
The Inner Morality Of Private Law, Benjamin C. Zipursky
Faculty Scholarship
Lon Fuller's classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name "law" at all. In this essay, I argue that Fuller's basic principles are not in fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, …
Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb
Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb
Faculty Scholarship
Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Faculty Scholarship
The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Faculty Scholarship
The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Faculty Scholarship
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …
The Home-State Test For General Personal Jurisdiction, Howard M. Erichson
The Home-State Test For General Personal Jurisdiction, Howard M. Erichson
Faculty Scholarship
This article attempts to articulate the due process test for general in personam jurisdiction. It frames the question as what gives a state sufficiently plenary power over a person that the state may adjudicate claims against the person regardless of where the claims arose, and it answers that question in terms of a home-state relationship between the defendant and the forum state. Written for a roundtable on the upcoming Supreme Court case of DaimlerChrysler AG v. Bauman, the article urges the Court to state the home-state test for general jurisdiction more clearly than it did two years ago in Goodyear …
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Faculty Scholarship
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …
Why The Supreme Court Should Give The Easy Answer To An Easy Question: A Response To Professors Childress, Neuborne, Sherry And Silberman, Howard M. Erichson
Why The Supreme Court Should Give The Easy Answer To An Easy Question: A Response To Professors Childress, Neuborne, Sherry And Silberman, Howard M. Erichson
Faculty Scholarship
This paper responds to arguments that the Supreme Court should sidestep the core questions of personal jurisdiction in DaimlerChrysler AG v. Bauman. It argues that general personal jurisdiction over a corporation should be limited to the corporation's home state. As a corollary of this point, an agency relationship between a parent and subsidiary does not justify attribution of contacts for purposes of general jurisdiction. The key to the analysis is understanding the fundamental difference between specific jurisdiction and general jurisdiction, and this distinction explains several of the disagreements between myself and other participants in this Roundtable.
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Faculty Scholarship
The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …
Translating Fiduciary Principles Into Public Law, Ethan J. Leib, David L. Ponet, Michael Serota
Translating Fiduciary Principles Into Public Law, Ethan J. Leib, David L. Ponet, Michael Serota
Faculty Scholarship
Because public office is a public trust, fiduciary architecture can help orient us in figuring out how political power should be exercised legitimately. Part of the appeal of conceiving the political relationship between representative and represented in fiduciary terms is that it regards politics in more realistic and textured ways — as a constellation of power relationships in a web of trust and vulnerability — rather than as a mere social contract no one ever signed. Thinking of legislators as public fiduciaries tells us much about the nature of the relationship between the governed and their governors and it can …
What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner
What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner
Faculty Scholarship
In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …
The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green
The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green
Faculty Scholarship
This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …
Staging The Family, Clare Huntington
Staging The Family, Clare Huntington
Faculty Scholarship
For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye. These performances of family and familial roles do not simply communicate messages to …
Towards Engaged Scholarship, Nestor M. Davidson
Towards Engaged Scholarship, Nestor M. Davidson
Faculty Scholarship
No abstract provided.
The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky
The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky
Faculty Scholarship
Fraud on the market is at the core of contemporary securities law, permitting 10b-5 class actions to proceed without direct proof of investor reliance on a misrepresentation. Yet the ambiguities of this idea have fractured the Supreme Court from its initial recognition of the doctrine in Basic v. Levinson to its recent decision in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds. Amidst divergent views of the coherence and advisability of liability for fraud on the market a fundamental question lurks: is a suit for damages that invokes the fraud-on-the-market theory a claim for common law deceit, such that …
Why Strickland Is The Wrong Test For Assessing Violations Of The Right To Testify, Daniel J. Capra, Joseph Tartakovsky
Why Strickland Is The Wrong Test For Assessing Violations Of The Right To Testify, Daniel J. Capra, Joseph Tartakovsky
Faculty Scholarship
A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important "personal" rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant's right to testify. This Article proposes a new test to better secure and enforce …
Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley
Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley
Faculty Scholarship
No abstract provided.
Language, Legal Origins, And Culture Before The Courts: Cross-Citations Between Supreme Courts In Europe, Martin Gelter, Mathias M. Siems
Language, Legal Origins, And Culture Before The Courts: Cross-Citations Between Supreme Courts In Europe, Martin Gelter, Mathias M. Siems
Faculty Scholarship
Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this article and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries for the time between 2000 and 2007. In the present article we show …
What Is Constitutional Obligation?, Abner S. Greene
What Is Constitutional Obligation?, Abner S. Greene
Faculty Scholarship
Mike Seidman’s book, On Constitutional Disobedience, offers an impressive challenge to constitutional fidelity. With much of it, my book Against Obligation is on all fours – we both share the view that our Constitution’s meaning should not be bound by past sources. Seidman seems to go further, though, and reject the bindingness of the Constitution as a text. What does it mean to ask whether the Constitution itself obligates? Most of the Constitution doesn’t set rules for citizens; rather, it establishes powers, and what we might consider conditional obligations, for officials. All government officials in the United States swear an …
Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson
Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson
Faculty Scholarship
The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
Faculty Scholarship
This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …
Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, James L. Kainen
Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, James L. Kainen
Faculty Scholarship
When the exclusionary rule prevents the prosecution from using evidence necessary to bring a case to trial, the rule deters illegality while raising no issue about how it might interfere with usual factfinding processes. However, when a case proceeds to trial although a court has suppressed some prosecution evidence, courts need to decide the extent to which the defendant may benefit from the absence of the proof without opening the door to its admission. The exclusion of any relevant evidence raises similar questions, and courts often say the exclusionary rule is a shield from suppressed evidence, but not a sword …
The Political Morality Of Voting In Direct Democracy, Michael Serota, Ethan J. Leib
The Political Morality Of Voting In Direct Democracy, Michael Serota, Ethan J. Leib
Faculty Scholarship
The voting levers in candidate elections and in direct democracy elections are identical. The political obligations that bind the citizens that pull them are not. This Essay argues that voters in direct democracy elections, unlike their counterparts in candidate elections, serve as representatives of the people and are, accordingly, bound by the ethics of political representation. Upending the traditional dichotomy between representative and direct democracy, this Essay explains why citizens voting in direct democracy are representative legislators who must vote in the public interest and must not vote in their private interests.
According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt
According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt
Faculty Scholarship
This Article offers a review of Angela Onwuachi-Willig’s wonderful book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family. Race scholars have begun to productively deploy structuralism to discuss cumulative racial disadvantage and the ongoing, racially segregative effects of government systems and policies. of such systems on intimate choice and family formation. Likewise, some scholars have employed structuralism to explore how law shapes our intimate preferences and opportunities for intimate engagements. Still, scholars of this very exciting work have not yet engaged as fully as they might regarding questions of race. This Article contends that …
The Regulation Of Race In Science, Kimani Paul-Emile
The Regulation Of Race In Science, Kimani Paul-Emile
Faculty Scholarship
The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …
The Great And Mighty Tax Law: How The Roberts Court Has Reduced Constitutional Scrutiny Of Taxes And Tax Expenditures, Linda Sugin
The Great And Mighty Tax Law: How The Roberts Court Has Reduced Constitutional Scrutiny Of Taxes And Tax Expenditures, Linda Sugin
Faculty Scholarship
This article compares National Federation of Independent Business v. Sebelius – the Supreme Court’s decision upholding the individual mandate in Obamacare as a tax, with Arizona Christian Schools v. Winn – the Supreme Court’s decision denying standing to taxpayers with an Establishment Clause challenge to a state tax credit. It argues that these cases aggravate a growing tension between the economic and legal analyses of taxation by reducing the legal significance of economic analysis in constitutional cases. It suggests that Arizona Christian Schools was a truly radical decision because it conceptualized tax expenditures as private action immune from constitutional attack, …
State Speech And Political Liberalism, Abner S. Greene
State Speech And Political Liberalism, Abner S. Greene
Faculty Scholarship
Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each.Their title, "Ordered Liberty," is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free …