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Articles 1 - 26 of 26
Full-Text Articles in Law
The Defined Contribution Paradigm, Edward A. Zelinsky
The Defined Contribution Paradigm, Edward A. Zelinsky
Articles
Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. I suggest that, over the last generation, something even more fundamental has occurred, something that can justly be called a paradigm shift. Americans today primarily conceive of and implement retirement savings in the form of individual accounts. Such accounts have become primary instruments of public policy, not just for retirement savings, but increasingly for health care and education as well.
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
Articles
Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …
Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles
Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles
Articles
No abstract provided.
Indemnity, Liability, Insolvency, David G. Carlson
Indemnity, Liability, Insolvency, David G. Carlson
Articles
Suppose A has a claim against B. B has a claim over against C. B, however, is insolvent and has not actually paid A. B's only asset is, in fact, B v C. To what extent can C claim that B v C is valueless - that B was not damaged because B was too broke to pay A?
This paper argues that the fundamental legal distinction between indemnity and liability is beginning to dissolve, because B can always pay A (and thereby give value to B v C) by borrowing the amount B owes and using B v C …
Introducing Lawrence V. Texas: Some Background And A Glimpse Of The Future, Edward Stein
Introducing Lawrence V. Texas: Some Background And A Glimpse Of The Future, Edward Stein
Articles
The Supreme Court's decision in Lawrence v. Texas broke new ground for the legal position of lesbians, gay men and other sexual minorities in the United States. This article reviews the legal background against which Lawrence was decided (focusing on privacy and equal protection arguments). The article then explores the likely implications of this decision, specifically for the recognition of same-sex marriage and the constitutionality of laws that make other sex acts criminal. The article suggests that the most interesting questions after Lawrence concern whether the logic of Justice O'Connor's concurrence (that focused on the equal protection argument) will be …
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Articles
No abstract provided.
A Fragment On Cnutism With Brief Divagations On The Philosophy Of The Near Miss, Peter Goodrich
A Fragment On Cnutism With Brief Divagations On The Philosophy Of The Near Miss, Peter Goodrich
Articles
This fragment is taken, mid-sentence as it were, from a longer discourse. It is plucked in process from a discussion of friendship for ideas. It is part of a longer journey through the annals of amity. The fragment also examines a fragment, a gloss on a text, a marginal comment, a handwritten note, which is taken to constitute the modern origin of Cnutism.
Symposium: Suzanne Last Stone, Suzanne Last Stone
Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon
Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon
Articles
No abstract provided.
Why Are There Four Hegelian Judgments, David G. Carlson
Why Are There Four Hegelian Judgments, David G. Carlson
Articles
Hegel is the philosopher of threes. His entire system is triune: logic-nature-spirit. Within the logic is a triune structure: being, essence, notion. Within notion there is a triad: subject-object-idea. Within subjectivity, there is a triad: notion, judgment, syllogism. Yet when we examine Hegel's critique of judgment, there are four (not three): inherence-reflection-necessity-notion.
This paper tries to explain why this is so. There is a disturbing element present at all times in Hegel's logic - what Slavoj Zizek named a silent fourth, which erupts and manifests itself in judgment. This paper refines and justifies Zizek's insight, arguing from the text of …
The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk
The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk
Articles
Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.
Preface To The Justice In Mediation Symposium, Lela P. Love
Preface To The Justice In Mediation Symposium, Lela P. Love
Articles
No abstract provided.
Bankruptcy's Acephalous Moment: Postpetition Transfers Under The Bankruptcy Code, David G. Carlson
Bankruptcy's Acephalous Moment: Postpetition Transfers Under The Bankruptcy Code, David G. Carlson
Articles
No abstract provided.
Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok
Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok
Articles
No abstract provided.
A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem
A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem
Articles
This Article tells the story of our effort to establish an interdisciplinary law and social work program at Cardozo Bet Tzedek Legal Services (“CBT”), a law clinic at Benjamin N. Cardozo School of Law. The program is predicated on the belief that law and social work collaboration will benefit clients as well as students. The Article is primarily descriptive—telling what we did, why we did it, why we were disappointed with it, and how we changed the program. The Article also attempts to continue a constructive critique, on the assumption that even if something is not broken, it can be …
Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci
Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci
Articles
No abstract provided.
The Antepenultimacy Of The Beginning In Hegel’S Science Of Logic, David G. Carlson
The Antepenultimacy Of The Beginning In Hegel’S Science Of Logic, David G. Carlson
Articles
The Science of Logic is the keystone for Hegel's philosophy. Perhaps the single most perplexing problem in this work is the status of the beginning. Hegel insisted that philosophy must be self-grounding. It cannot start from "givens." Yet, if Hegel's beginning is merely stipulated or "given," then his project is defeated. The usual view of Hegel's intent is that the beginning (Pure Being) is the last step, so that what begins as a presupposition ends up being "proven." This article suggests something different. It proposes that the beginning (Pure Being) is actually the "antepenultimate" (or third-from-last) step of the Science …
Endnote: Untoward, Peter Goodrich
The Legal System's Use Of Epidemiology: Some Clarifications (Continued), Arthury H. Bryant, Alexander A. Reinert
The Legal System's Use Of Epidemiology: Some Clarifications (Continued), Arthury H. Bryant, Alexander A. Reinert
Articles
We welcome Mr. Korzeniewski's efforts at clarifying some of the epidemiological concepts included in our original paper. If anything, however, his critique only reinforces our fundamental point: that some courts, by applying inflexible rules of admissibility, are missing the complex and multi-disciplined dynamics underlying scientific assessments of causality. By so doing, these courts are preventing the factfinders from considering evidence that scientists would find relevant and even persuasive, thereby taking the legal system farther from rather than closer to the truth.
Henry Minton, Departing From Deviance: A History Of Homosexual Rights And Emancipatory Science In America., Edward Stein
Henry Minton, Departing From Deviance: A History Of Homosexual Rights And Emancipatory Science In America., Edward Stein
Articles
No abstract provided.
New York Moveable Feast: Boundaries To Practice, Christopher Honeyman, Lela P. Love
New York Moveable Feast: Boundaries To Practice, Christopher Honeyman, Lela P. Love
Articles
No abstract provided.
It's Not Your Father's Legal Writing Program, Leslie Newman
It's Not Your Father's Legal Writing Program, Leslie Newman
Articles
No abstract provided.
Two Concepts Of Injustice In Restitution For Slavery, Anthony J. Sebok
Two Concepts Of Injustice In Restitution For Slavery, Anthony J. Sebok
Articles
This article, which will appear in a symposium issued of the Boston University Law Review titled "The Jurisprudence of Slavery Reparations," criticizes attempts to secure legal redress for slavery through lawsuits based on unjust enrichment. The article has three parts. First, it compares the recent efforts to litigate the wrongs of caused by American slavery to other recent "mass restitution" lawsuits, namely the states' unjust enrichment suits against the tobacco industry and the suits against banks and corporations for unjust enrichment arising out of the Holocaust. Second, the article questions the fit between the structure of restitution and the interests …
United States V. American Library Ass'n: The Children's Internet Protection Act, Library Filtering And Institutional Roles, Felix Wu
Articles
No abstract provided.
Truth And Illusion, Suzanne Last Stone
Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams
Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams
Articles
At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …