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- Unjust enrichment (5)
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Articles 1 - 30 of 31
Full-Text Articles in Law
Judges As Rulemakers, Emily Sherwin
Judges As Rulemakers, Emily Sherwin
Emily L Sherwin
In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules. Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process may …
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
Emily L Sherwin
In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars. The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …
Demystifying Legal Reasoning: Part Ii, Larry Alexander, Emily Sherwin
Demystifying Legal Reasoning: Part Ii, Larry Alexander, Emily Sherwin
Emily L Sherwin
"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false. In Chapter 2, we propose that there are two plausible models of common law reasoning, …
Love, Money, And Justice: Restitution Between Cohabitants, Emily Sherwin
Love, Money, And Justice: Restitution Between Cohabitants, Emily Sherwin
Emily L Sherwin
The principle of unjust enrichment is susceptible to varying interpretations, which reflect importantly different conceptions of how courts should decide cases and develop law. The consequences of different possible interpretations of the unjust enrichment principle are nicely illustrated by a group of cases involving restitution claims between former cohabitants. Claims of this kind are endorsed by the new Restatement (Third) of Restitution and Unjust Enrichment (now in preparation). In recognizing these claims, the Restatement adopts an “equitable” interpretation of unjust enrichment for this category of cases, one that licenses courts to disregard rules and engage in particularistic decision-making. This is …
The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin
The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin
Emily L Sherwin
No abstract provided.
Property Rules As Remedies, Emily Sherwin
Designing Judicial Review: A Comment On Schauer, Emily Sherwin
Designing Judicial Review: A Comment On Schauer, Emily Sherwin
Emily L Sherwin
In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.
Deception In Morality And Law, Larry Alexander, Emily Sherwin
Deception In Morality And Law, Larry Alexander, Emily Sherwin
Emily L Sherwin
No abstract provided.
Ducking Dred Scott: A Response To Alexander And Schauer, Emily Sherwin
Ducking Dred Scott: A Response To Alexander And Schauer, Emily Sherwin
Emily L Sherwin
No abstract provided.
Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin
Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin
Emily L Sherwin
We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. …
Why We Write: Reflections On Legal Scholarship, Emily Sherwin
Why We Write: Reflections On Legal Scholarship, Emily Sherwin
Emily L Sherwin
No abstract provided.
Two- And Three-Dimensional Property Rights, Emily Sherwin
Two- And Three-Dimensional Property Rights, Emily Sherwin
Emily L Sherwin
No abstract provided.
The Limits Of Feminism, Emily Sherwin
Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild
Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild
Emily L Sherwin
No abstract provided.
An Essay On Private Remedies, Emily Sherwin
Property, Rules, And Property Rules, Emily Sherwin
Property, Rules, And Property Rules, Emily Sherwin
Emily L Sherwin
This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important. The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that …
The Bubble Concept In Water Pollution Control, Emily Sherwin
The Bubble Concept In Water Pollution Control, Emily Sherwin
Emily L Sherwin
No abstract provided.
Clear And Convincing Evidence Of Testamentary Intent: The Search For A Compromise Between Formality And Adjudicative Justice, Emily Sherwin
Clear And Convincing Evidence Of Testamentary Intent: The Search For A Compromise Between Formality And Adjudicative Justice, Emily Sherwin
Emily L Sherwin
No abstract provided.
Why In Re Omegas Group Was Right: An Essay On The Legal Status Of Equitable Rights, Emily Sherwin
Why In Re Omegas Group Was Right: An Essay On The Legal Status Of Equitable Rights, Emily Sherwin
Emily L Sherwin
No abstract provided.
Constructive Trusts In Bankruptcy, Emily Sherwin
Constructive Trusts In Bankruptcy, Emily Sherwin
Emily L Sherwin
No abstract provided.
Rules And Judicial Review, Emily Sherwin
Rules And Judicial Review, Emily Sherwin
Emily L Sherwin
Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest …
Unjust Enrichment And Creditors, Emily Sherwin
Unjust Enrichment And Creditors, Emily Sherwin
Emily L Sherwin
The constructive trust remedy plays an important role in bankruptcy because it places restitution claimants in a position of priority over creditors. According to traditional rules governing constructive trusts, restitution claimants who can identify particular assets in the debtor's hands as products of an unjust enrichment recover in full, to the exclusion of other unsecured creditors. The draft Restatement (Third) of Restitution and Unjust Enrichment endorses this outcome with only minor qualifications. The supposed basis for a constructive trust is unjust enrichment: courts grant the remedy to prevent the defendant from profiting at the claimant's expense. In bankruptcy, the parties …
A Comment On Cass Sunstein's Equality, Emily Sherwin
A Comment On Cass Sunstein's Equality, Emily Sherwin
Emily L Sherwin
No abstract provided.
Interpreting Tort Law, Emily Sherwin
Creditors' Rights Against Participants In A Leveraged Buyout, Emily Sherwin
Creditors' Rights Against Participants In A Leveraged Buyout, Emily Sherwin
Emily L Sherwin
No abstract provided.
Legal Rules And Social Reform, Emily Sherwin
Law And Equity In Contract Enforcement, Emily Sherwin
Law And Equity In Contract Enforcement, Emily Sherwin
Emily L Sherwin
No abstract provided.
Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily Sherwin
Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily Sherwin
Emily L Sherwin
Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject. First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them. Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that …
Legal Taxonomy, Emily Sherwin
Legal Taxonomy, Emily Sherwin
Emily L Sherwin
This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview …
Contribution Arguments In Commercial Law, Steven Walt, Emily Sherwin
Contribution Arguments In Commercial Law, Steven Walt, Emily Sherwin
Emily L Sherwin
No abstract provided.