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Full-Text Articles in Law
The Illusory Right To Abandon, Eduardo Peñalver
The Illusory Right To Abandon, Eduardo Peñalver
Articles
The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however due to …
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Articles
No abstract provided.
Welfare As Happiness, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Welfare As Happiness, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Articles
No abstract provided.
Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Richard A. Posner
Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Richard A. Posner
Articles
No abstract provided.
The Authority For Federalism: Madison's Negative And The Origins Of Federal Ideology, Alison Lacroix
The Authority For Federalism: Madison's Negative And The Origins Of Federal Ideology, Alison Lacroix
Articles
No abstract provided.
The Institutional Dynamics Of Transition Relief, Jonathan Masur, Jonathan Remy Nash
The Institutional Dynamics Of Transition Relief, Jonathan Masur, Jonathan Remy Nash
Articles
Whether and how to provide transition relief from a change in legal regime is a question of critical importance. Legislatures and agencies effect changes to the law constantly, and affected private actors often seek relief from those changes, at least in the short term. Scholarship on transition relief therefore has focused almost entirely on examining when transition relief might be justified and now recognizes that there may be settings where relief from legal transitions is appropriate. Yet largely absent from these treatments is an answer to the question of which institutional actor is best positioned to decide when legal transition …
What Tort Theory Tells Us About Federal Preemption: The Tragic Saga Of Wyeth V. Levine, Richard A. Epstein
What Tort Theory Tells Us About Federal Preemption: The Tragic Saga Of Wyeth V. Levine, Richard A. Epstein
Articles
No abstract provided.
Antibankruptcy, Douglas G. Baird, Robert K. Rasmussen
Antibankruptcy, Douglas G. Baird, Robert K. Rasmussen
Articles
In large Chapter 11 cases, the prototypical creditor is no longer a small player holding a claim much like everyone else's, but rather a distressed debt professional advancing her own agenda. Secured creditors are more pervasive and enjoy much more control than they had even a decade ago. Moreover, financial innovation has dramatically increased the complexity of each investor's position. As a result of these and other changes, the legal system now faces a challenge that is much like assembling a city block that has been broken up into many parcels. There exists an anticommons problem, a world in which …
The Subprime Crisis And Financial Regulation: International And Comparative Perspectives, Kenneth W. Dam
The Subprime Crisis And Financial Regulation: International And Comparative Perspectives, Kenneth W. Dam
Articles
No abstract provided.
The Limits Of Textualism: Cooper V. Ibm Personal Pension Plan, Julie Roin
The Limits Of Textualism: Cooper V. Ibm Personal Pension Plan, Julie Roin
Articles
No abstract provided.
The Right To Abandon, Lior Strahilevitz
The Right To Abandon, Lior Strahilevitz
Articles
The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) the common law generally permits the abandonment of chattel property, (2) the common law promotes the transfer of real property via adverse possession, and (3) the civil law is widely believed to permit the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three peculiarities have escaped sustained scholarly analysis and criticism. This Article aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, this Article finds that the …
Do Judges Cherry Pick Precedents To Justify Extra-Legal Decisions?: A Statistical Examination, Anthony Niblett
Do Judges Cherry Pick Precedents To Justify Extra-Legal Decisions?: A Statistical Examination, Anthony Niblett
Articles
No abstract provided.
Justiciability And The Role Of Courts In Adequacy Litigation: Preserving The Constitutional Right To Education, Julia Simon-Kerr, Robynn K. Sturm
Justiciability And The Role Of Courts In Adequacy Litigation: Preserving The Constitutional Right To Education, Julia Simon-Kerr, Robynn K. Sturm
Articles
In the first study of opinions handed down in education adequacy litigation between January 2005 and January 2008, this Article shows a marked shift away from outcomes favorable to adequacy plaintiffs. Following two decades in which courts spurred significant reforms in our nation's neediest schools by interpreting the education clauses of their state constitutions to guarantee an "adequate" education for all students, the years 2005 to 2008 have seen a dramatic change in the judicial response to adequacy litigation. Through an analysis of the latest body of cases, we show that separation of powers concerns have begun to drive state …
Pseudonymous Litigation, Lior Strahilevitz
Foreign Sovereign Immunity And Domestic Officer Suit, Curtis A. Bradley, Jack L. Goldsmith
Foreign Sovereign Immunity And Domestic Officer Suit, Curtis A. Bradley, Jack L. Goldsmith
Articles
We recently argued in these pages that international law treats official-capacity suits brought against a foreign state’s officers as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses.1 This immunity regime under international law differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. While …
Customary International Law And Withdrawal Rights In An Age Of Treaties, Curtis A. Bradley, Mitu Gulati
Customary International Law And Withdrawal Rights In An Age Of Treaties, Curtis A. Bradley, Mitu Gulati
Articles
The conventional wisdom among international law scholars is that, once a rule of customary international law (“CIL”) becomes established, nations never have the unilateral right to withdraw from it. Instead, if they want to act in a way that is contrary to the rule, they must either violate it and hope that other nations acquiesce in the violation, or they must persuade other nations to enter into a treaty that overrides the CIL rule. In Withdrawing from International Custom, we termed this conventional wisdom the “Mandatory View” of CIL.1
As we explained in Withdrawing, the Mandatory View of CIL …
International Law And The U.S. Common Law Of Foreign Official Immunity, Curtis A. Bradley, Laurence R. Helfer
International Law And The U.S. Common Law Of Foreign Official Immunity, Curtis A. Bradley, Laurence R. Helfer
Articles
In Samantar v Yousuf,1 the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not apply to lawsuits brought against foreign government officials for alleged human rights abuses.2 The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits “may still be barred by foreign sovereign immunity under the common law.”3 At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the immunity of …
Honoring The Legacies Of Justices William J. Brennan, Jr., And Justice Thurgood Marshall, Geoffrey R. Stone
Honoring The Legacies Of Justices William J. Brennan, Jr., And Justice Thurgood Marshall, Geoffrey R. Stone
Articles
No abstract provided.
Controlling Residential Stakes, Lee Anne Fennell, Julie Roin
Controlling Residential Stakes, Lee Anne Fennell, Julie Roin
Articles
Local communities often suffer when residents have too small a stake in their homes-a point underscored by recent rashes of foreclosures and abandonments, and implicated by longstanding questions about the effects on communities of renters and owner-occupants, respectively. However, homeowners with too great a financial stake in their homes can also cause difficulties for local governance by acting as risk-averse NIMBYs. Local governments should have a strong interest in helping members of their communities move away from problematic forms of stakeholding and toward more desirable intermediate positions. This Article examines how and why governmental entities at the state and local …
International Agreements, Internal Heterogeneity, And Climate Change: The Two Chinas Problem, Daniel Abebe, Jonathan Masur
International Agreements, Internal Heterogeneity, And Climate Change: The Two Chinas Problem, Daniel Abebe, Jonathan Masur
Articles
No abstract provided.
Reunifying Privacy Law, Lior Strahilevitz
Reunifying Privacy Law, Lior Strahilevitz
Articles
In the years since Samuel Warren and Louis Brandeis proposed a unified theory of invasion of privacy tort liability, American information privacy law became increasingly fragmented and decreasingly coherent. William Prosser's 1960 article, Privacy, which heavily influenced the Restatement of Torts, endorsed and hastened this trend toward fragmentation, which spread from tort law to the various statutory branches of information privacy law. This Article argues for the reunification of information privacy law in two connected ways. First, Prosser's fragmented privacy tort should be replaced with a unitary tort for invasion of privacy that looks to the private or public nature …
The Second Great Awakening: A Christian Nation?, Geoffrey R. Stone
The Second Great Awakening: A Christian Nation?, Geoffrey R. Stone
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No abstract provided.
Private Regulation And Foreign Conduct, Adam I. Muchmore
Private Regulation And Foreign Conduct, Adam I. Muchmore
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No abstract provided.
The Cost Of Time: Haphazard Discounting And The Undervaluation Of Regulatory Benefits, Arden Rowell
The Cost Of Time: Haphazard Discounting And The Undervaluation Of Regulatory Benefits, Arden Rowell
Articles
When performing cost-benefit analyses, regulators typically use willingness- to-pay studies to determine how much to spend to avert risks. Because money has a time-value, when a risk is valued is inextricable from how much it is valued. Unfortunately, the studies on which regulators rely are insensitive to this fact: they elicit people's willingness to pay for risk reductions without identifying the time at which the risk reduction will occur. Relying on these time-indeterminate studies has led to a systematic skew in regulatory cost-benefit analysis, toward the undervaluation of risks to human lives. Insofar as cost-benefit analyses inform regulation, this suggests …
Pre-Closing Liability, Omri Ben-Shahar
Bleak Prospects: How Health Care Reform Has Failed In The United States, Richard A. Epstein
Bleak Prospects: How Health Care Reform Has Failed In The United States, Richard A. Epstein
Articles
This Article examines the probable fate that awaits the systematic implementation of ObamaCare. Any effort to pile a massive new transfer and entitlement program on top of a hundred years of previous reforms is likely to fall prey to the law of diminishing marginal utility of additional forms of government intervention. That consequence is all the more likely for legislation that has strong redistributivist objectives but which lacks any techniques for dealing with the massive costs increases embedded in the program. A recent history of the Massachusetts health care initiative provides some indication of the inability to constrain costs except …
Latin American Presidentialism In Comparative And Historical Perspective, Tom Ginsburg, Jose Antonio Cheibub, Zachary Elkins
Latin American Presidentialism In Comparative And Historical Perspective, Tom Ginsburg, Jose Antonio Cheibub, Zachary Elkins
Articles
No abstract provided.
Easterbrook On Academic Freedom, Aziz Huq
Kafka: The Writer As Lawyer (Reviewing Stanley Corngold, Jack Greenberg & Benno Wagner, Eds., Franz Kafka: The Office Writings (2009)), Richard A. Posner
Kafka: The Writer As Lawyer (Reviewing Stanley Corngold, Jack Greenberg & Benno Wagner, Eds., Franz Kafka: The Office Writings (2009)), Richard A. Posner
Articles
No abstract provided.
Foundations Of Religious Liberty: Toleration Or Respect?, Brian Leiter
Foundations Of Religious Liberty: Toleration Or Respect?, Brian Leiter
Articles
No abstract provided.