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Full-Text Articles in Law
Property's Memories, Eduardo Peñalver
Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg
Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg
Articles
No abstract provided.
Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt
Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt
Articles
No abstract provided.
Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt
Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt
Articles
No abstract provided.
Willpower Taxes, Lee Anne Fennell
Willpower Taxes, Lee Anne Fennell
Articles
Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …
Judicial Inconsistency As Virtue: The Case Of Justice Stevens, Justin Driver
Judicial Inconsistency As Virtue: The Case Of Justice Stevens, Justin Driver
Articles
No abstract provided.
Selective Judicial Activism, Geoffrey R. Stone
Unbundling Risk, Lee Anne Fennell
Unbundling Risk, Lee Anne Fennell
Articles
Scholars have explored many ways to rearrange risk outside of traditional insurance markets. An interesting literature addresses a range of innovative alternatives, including the sale of unmatured tort claims or chances at windfalls, "anti-insurance," or "reverse insurance," and index-based derivatives that address routine (but life-altering) risks, such as those to home values or livelihoods. Because most of this work grows out of a conviction that specific risk allocations embedded in law could be improved upon, the merits of the newly proposed risk arrangements have taken center stage. This Article, in contrast, examines questions surrounding risk customization itself such as the …
The Consensus Constitution, Justin Driver
Beware Of Prods And Pleas: A Defense Of The Conventional Views On Tort And Administrative Law In The Context Of Global Warming, Richard A. Epstein
Beware Of Prods And Pleas: A Defense Of The Conventional Views On Tort And Administrative Law In The Context Of Global Warming, Richard A. Epstein
Articles
No abstract provided.
Privatization And The Sale Of Tax Revenues, Julie Roin
The Protection Of 'Hot News': Putting Balganesh’S 'Enduring Myth' About International New Service V. Associated Press In Perspective, Richard A. Epstein
The Protection Of 'Hot News': Putting Balganesh’S 'Enduring Myth' About International New Service V. Associated Press In Perspective, Richard A. Epstein
Articles
No abstract provided.
Nietzsche’S Naturalism Reconsidered, Brian Leiter
Nietzsche’S Naturalism Reconsidered, Brian Leiter
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According to one recent scholar, “Most commentators on Nietzsche would agree that he is in a broad sense a naturalist in his mature philosophy” (Janaway 2007: 34). This may come as a surprise to those who think of Martin Heidegger, Walter Kaufmann, Paul DeMan, Sarah Kofman, and Alexander Nehamas, among others, as “commentators” on Nietzsche. And yet there are, indeed, clear signs that in the last twenty years, as Nietzsche studies has become more philosophically sophisticated, the naturalist reading of Nietzsche has come to the fore, certainly in Anglophone scholarship.1 In Nietzsche on Morality (Leiter 2002), I set out …
On Being 'Bound Thereby', Alison Lacroix
Patent Inflation, Jonathan Masur
Patent Inflation, Jonathan Masur
Articles
For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular failings. First, the PTO grants significant numbers of invalid patents, patents that impose substantial costs on innovative firms. And second, over time the Federal Circuit has steadily loosened the rules governing patentability, allowing ever more patents over a greater range of inventions. This Article argues that both of these modern trends may be attributable in whole or in …
Patent Liability Rules As Search Rules, Jonathan Masur
Patent Liability Rules As Search Rules, Jonathan Masur
Articles
Patent law's infringement doctrines, commonly understood to be simply rules of liability, are in fact search rules as well. Patent liability rules determine not only who will be responsible for what conduct, but also when patent holders and potential infringers will benefit from locating (or remaining ignorant of) one another. They thus affect the conditions under which parties will have incentives to engage in search. The dynamics of patent search are actually quite complicated. Under normal circumstances, patent law's liability rules generate approximately optimal investments in search as both patent holders and possible infringers have incentives to locate one another. …
The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq
The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq
Articles
A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a …
Breakdown Of The Social Democratic State: Taking A Fresh Look At Waldron's Dignity, Rights, And Responsibilities, Richard A. Epstein
Breakdown Of The Social Democratic State: Taking A Fresh Look At Waldron's Dignity, Rights, And Responsibilities, Richard A. Epstein
Articles
No abstract provided.
Heller's Gridlock Economy In Perspective: Why There Is Too Little, Not Too Much Private Property, Richard A. Epstein
Heller's Gridlock Economy In Perspective: Why There Is Too Little, Not Too Much Private Property, Richard A. Epstein
Articles
This Article critiques Michael Heller's important contribution in The Gridlock Economy. At no point does this Article take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But gridlock is not the major source of social dislocation; nor is private ownership the major source of gridlock. More concretely, this Article examines the other important sources of economic distortion that are unrelated to economic gridlock from private action. These include the use of excessive government subsidies (as with health care); misguided government licenses (as with broadcast licenses); the unwise use …
On The Evasion Of Executive Term Limits, Tom Ginsburg, Zachary Elkins, James Melton
On The Evasion Of Executive Term Limits, Tom Ginsburg, Zachary Elkins, James Melton
Articles
Executive term limits are precommitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This Article reviews the normative debate over term limits and identifies …
Eavesdropping On The Vox Populi (Reviewing Pauline Maier, Ratification: The People Debate The Constitution, 1787- 1788 (2010) & Jack Rakove, Revolutionaries: A New History Of The Invention Of America (2010)), Alison Lacroix
Articles
Eavesdropping on the Vox Populi (reviewing Pauline Maier, Ratification: The People Debate the Constitution, 1787- 1788 (2010) & Jack Rakove, Revolutionaries: A New History of The Invention of America (2010))
Originalism, Conservatism, And Judicial Restraint, David A. Strauss
Originalism, Conservatism, And Judicial Restraint, David A. Strauss
Articles
No abstract provided.
Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt
Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt
Articles
No abstract provided.
Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati
Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati
Articles
Although customary international law (CIL) has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness.1 While some of these debates and uncertainties are longstanding, they have intensified in recent years, in part because of the rise of multilateral treaty-making, which allows nations collectively to negotiate and codify broad areas of international law instead of relying on unwritten custom. Moreover, it has become increasingly apparent that CIL is structurally unable to address many of the world’s most pressing problems, such …
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Articles
The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. In part because of the limited availability of judicial review in this area, some commentators have suggested that presidential authority has become “unbounded” by law and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Whether and how practice-based law might …
Regulation For The Sake Of Appearance, Adam M. Samaha
Regulation For The Sake Of Appearance, Adam M. Samaha
Articles
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …
The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner
The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner
Articles
Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the …
India's Evolving Patent Laws And The Wto Obligations: The Rejection Of Abbott Laboratories' Application For A New Kaletra Patent, Adam S. Chilton
India's Evolving Patent Laws And The Wto Obligations: The Rejection Of Abbott Laboratories' Application For A New Kaletra Patent, Adam S. Chilton
Articles
No abstract provided.
The Constitutional Paradox Of The Durbin Amendment: How Monopolies Are Offered Constitutional Protections Denied To Competitive Firms, Richard A. Epstein
The Constitutional Paradox Of The Durbin Amendment: How Monopolies Are Offered Constitutional Protections Denied To Competitive Firms, Richard A. Epstein
Articles
The Durbin Amendment is the first of the major provisions of the Dodd-Frank Act to have been implemented-but only after it withstood a constitutional challenge on the basis of the Takings Clause in the U.S. Court of Appeals for the Eighth Circuit. Now that the Amendment has taken effect, this Article addresses the false economic logic that led to its passage and the dubious arguments used to sustain its constitutionality. On the first issue, the supporters of the Durbin Amendment denounced the highly effective debit card system as a form of cartelization of the industry, which yields excessive returns to …
Of Pleading And Discovery: Reflections On Twombly And Iqbal With Special Reference To Antitrust, Richard A. Epstein
Of Pleading And Discovery: Reflections On Twombly And Iqbal With Special Reference To Antitrust, Richard A. Epstein
Articles
This Essay explores the evolving influence of Twombly and Iqbal on modern antitrust litigation. The author argues that any proposed statutory repudiation of Twombly and Iqbal is premature. He also develops a model that calls for a periodic reevaluation of the overall strength of a plaintiffs case to see if a final motion dismissing the case or some part thereof is appropriate before discovery runs its course. That approach should be followed in a limited number of big cases. The key to the successful judicial administration of discovery is to require that plaintiffs gather publicly available information in order to …