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Articles 31 - 60 of 202
Full-Text Articles in Law
Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins
Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins
Faculty Scholarship
Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …
What Is A Twentieth-Century Constitution?, Peter E. Quint
What Is A Twentieth-Century Constitution?, Peter E. Quint
Faculty Scholarship
At present, almost all of the constitutions in the world are twentieth-century constitutions; indeed, most of them were not adopted until the second half of the twentieth century. Accordingly, the eighteenth-century Constitution of the United States -- which includes the original constitution of 1787-89; the first ten amendments, adopted in 1791; and the Eleventh Amendment, adopted in 1798 -- antedates most other constitutions of the world by at least 150 years. Using the eighteenth-century Constitution of the United States as a form of base-line (a method that may be parochial, but one that I think also has a lot to …
Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors In Troubled Companies, Royce De R. Barondes, Lisa M. Fairfax, Lawrence A. Hamermesh, Robert Lawless, Jonathan C. Lipson, Russell C. Silberglied
Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors In Troubled Companies, Royce De R. Barondes, Lisa M. Fairfax, Lawrence A. Hamermesh, Robert Lawless, Jonathan C. Lipson, Russell C. Silberglied
Faculty Scholarship
No abstract provided.
The Fall And Rise Of Federal Corporation Law, Richard A. Booth
The Fall And Rise Of Federal Corporation Law, Richard A. Booth
Faculty Scholarship
No abstract provided.
Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations, Sonja Starr
Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations, Sonja Starr
Faculty Scholarship
No abstract provided.
Book Review Of The Place Of Families: Fostering Capacity, Equality, And Responsibility By Linda C. Mcclain, Karen Czapanskiy
Book Review Of The Place Of Families: Fostering Capacity, Equality, And Responsibility By Linda C. Mcclain, Karen Czapanskiy
Faculty Scholarship
No abstract provided.
Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray
Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray
Faculty Scholarship
The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …
Ruminations On The Past, Present And Future Of International Labor Standards: Empowering Law In The Brave New Economic World, Marley S. Weiss
Ruminations On The Past, Present And Future Of International Labor Standards: Empowering Law In The Brave New Economic World, Marley S. Weiss
Faculty Scholarship
International labor standards are among the oldest international standards pertaining to the conduct of private, as well as public, economic actors. Far from being settled, however, nearly every aspect of the current international labor standards regime is in flux: the role of labor standards in the international legal, economic, political, and social order, as well as in the parallel domestic orders; the modes by which standards are brought into being; the manner and means of their implementation and enforcement; the degree to which they may be binding solely on nation-state parties, and enforceable only at their behest; and the extent …
Judicial Deference To Administrative Agencies And Its Limits, Graham G. Martin, David A. Super
Judicial Deference To Administrative Agencies And Its Limits, Graham G. Martin, David A. Super
Faculty Scholarship
No abstract provided.
"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber
"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber
Faculty Scholarship
No abstract provided.
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray
Faculty Scholarship
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …
Introduction To The Tenth Anniversary Issue Of The Journal Of Health Care Law & Policy , Karen H. Rothenberg, Diane E. Hoffmann
Introduction To The Tenth Anniversary Issue Of The Journal Of Health Care Law & Policy , Karen H. Rothenberg, Diane E. Hoffmann
Faculty Scholarship
No abstract provided.
The Criminalization Of Corporate Law, Lisa M. Fairfax
The Criminalization Of Corporate Law, Lisa M. Fairfax
Faculty Scholarship
No abstract provided.
Not All Property Is Created Equal: Why Modern Courts Resist Applying The Takings Clause To Patents, And Why They Are Right To Do So, Davida H. Isaacs
Not All Property Is Created Equal: Why Modern Courts Resist Applying The Takings Clause To Patents, And Why They Are Right To Do So, Davida H. Isaacs
Faculty Scholarship
After a century of disregard, the question of whether patents are entitled to protection under the Fifth Amendment's Takings Clause has recently become a topic of scholarly and judicial debate. While one might have expected this issue to have been settled long before, it is only the recent burgeoning of patentholders' regulatory takings claims that has made this question one of pressing interest. Thus far scholarship on the issue has focused on whether or not patents have historically been characterized as property. Meanwhile, last year's rejection by the Federal Circuit of a patentholder's right to assert a Takings Clause claim …
Environmental Law In The Twenty-First Century, Robert V. Percival
Environmental Law In The Twenty-First Century, Robert V. Percival
Faculty Scholarship
No abstract provided.
Steps Toward Safety: Improving Systemic And Community Responses For Families Experiencing Domestic Violence, Leigh S. Goodmark, Ann Rosewater
Steps Toward Safety: Improving Systemic And Community Responses For Families Experiencing Domestic Violence, Leigh S. Goodmark, Ann Rosewater
Book Gallery
This report is designed to mine the lessons learned from the research and reforms in child welfare and domestic violence, as well as explore possibilities for the next generation of innovation.
Not A Living Room Sofa: Changing The Legal Status Of Companion Animals, Susan J. Hankin
Not A Living Room Sofa: Changing The Legal Status Of Companion Animals, Susan J. Hankin
Faculty Scholarship
Although the law has traditionally treated non-human animals as property, public attitudes and many of our current laws already are beginning to reflect many ways in which animals, and especially companion animals, are fundamentally different from inanimate property. Despite these trends, the differences between animals and inanimate property need to be more clearly reflected in our laws, because there are still too many cases where the results under current laws are inconsistent with this understanding of companion animals.
This article proposes the legislative creation of a new status that formally recognizes companion animals as a distinct legal category: “companion animal …
Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle Keats Citron
Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle Keats Citron
Faculty Scholarship
A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher’s strict liability standard as undermining economic development, American courts …
The Duty To Creditors Reconsidered - Filling A Much Needed Gap In Corporation Law, Richard A. Booth
The Duty To Creditors Reconsidered - Filling A Much Needed Gap In Corporation Law, Richard A. Booth
Faculty Scholarship
The most fundamental question of corporation law is to whom does the board of directors of a corporation owe its fiduciary duty. Recently, the question has tended to be whether and under what circumstances the board of directors has the duty to maximize stockholder wealth. But if a corporation is insolvent (or close to it), business decisions designed to maximize stockholder wealth may result in a reduction of creditor wealth. Although the conventional wisdom is that creditors must protect themselves by contractual means, there is a substantial body of case law that says that creditors can assert claims sounding in …
The Effect Of Risk On Legal Valuation, Robert J. Rhee
The Effect Of Risk On Legal Valuation, Robert J. Rhee
Faculty Scholarship
From a financial economic perspective, the governing condition of a meritorious civil action is the uncertainty of outcome. Expectation and outcome deviate, and the spread is the measure of uncertainty (or variance). During litigation each party has an option to settle or select trial. The decision standard can be seen as an option strike price and a finding of liability as an “in-the-money” call option. This apparent optionality suggests the application of an option pricing model to legal valuation, and a small but growing body of scholarship endorses this concept. However, option theory is not the only concept. Under an …
The Socratic Method And The Mathematical Heuristic Of George Polya, Robert J. Rhee
The Socratic Method And The Mathematical Heuristic Of George Polya, Robert J. Rhee
Faculty Scholarship
A number of commentators have observed the decline of the Socratic method. This is unfortunate as the Socratic method can be an effective teaching tool. But this article recognizes that the Socratic method can be monochromatic. This article argues that the Socratic method should not be conceived simply as a method to teach analytic skills. Rather, once learned, it can be a concrete analytic tool for the students to use without the help of professors. In other words, it is an end to itself rather than a means. To do this, we can adopt George Polya's heuristic for teaching mathematical …
Probability, Policy And The Problem Of Reference Class, Robert J. Rhee
Probability, Policy And The Problem Of Reference Class, Robert J. Rhee
Faculty Scholarship
This short paper focuses on the problem of reference class in evidentiary assessment as it relates to probability and weight of evidence. The reluctance to inject mathematical formalism into the factfinding function is justified. Objective probability requires a reference class from which a proportion is derived. Probability assessments change with the reference class. If a proposition is subject to proportional comparison against two or more different references, their selection is often an inductive process. The advantage of objectivity and methodological rigor is illusory. A legal dispute is the search for a plausible understanding of the truth, and an overtly mathematized …
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Faculty Scholarship
“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …
False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber
False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber
Faculty Scholarship
Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …
Reinstatement V. Cramdown: Do Secured Creditors Win Or Lose?, Heather Lennox, Michelle M. Harner, Eric R. Goodman
Reinstatement V. Cramdown: Do Secured Creditors Win Or Lose?, Heather Lennox, Michelle M. Harner, Eric R. Goodman
Faculty Scholarship
No abstract provided.
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Faculty Scholarship
Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.
The Temporally-Flawed Concept Of Binding Promises In American Collective Bargaining And Employee Benefits Law: A Source Of The Concurrent Crises In The U.S. Industrial Relations, Retirement, And Health Care Systems, Marley S. Weiss
Faculty Scholarship
The American collective bargaining system is in serious trouble, as is the employee benefits system providing pensions and health care benefits for millions of non-union as well as unionized workers and retirees. The portion of the labor force covered by collective bargaining has dropped so low that one can barely refer to it as a system. Simultaneously, the American private employer-based pension system is moving towards a crisis. Large employers with the finest pension plans, covering thousands of workers and retirees, in industry after industry, are terminating their pension plans, or replacing them with cheaper, weaker retirement programs, often while …
Accepting The Court's Invitation, Martha M. Ertman
Accepting The Court's Invitation, Martha M. Ertman
Faculty Scholarship
No abstract provided.
Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale
Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale
Faculty Scholarship
Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …
The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale
The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale
Faculty Scholarship
Retainer care arrangements allow patients to pay a fee directly to a physician's office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as boutique medicine. Both sides are deploying a variety of legal tactics in order to attain their goals.
After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most …