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Full-Text Articles in Law
Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat
Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat
Articles
Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, …
Historical Gloss: A Primer, Alison Lacroix
Comments On Law And Versteeg's 'The Declining Influence Of The United States Constitution', Tom Ginsburg, Zachary Elkins, James Melton
Comments On Law And Versteeg's 'The Declining Influence Of The United States Constitution', Tom Ginsburg, Zachary Elkins, James Melton
Articles
No abstract provided.
Picturing Takings, Lee Anne Fennell
Picturing Takings, Lee Anne Fennell
Articles
Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task offinding our way through it has become more difficult, and yet more interesting, with the Supreme Court's recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.
Becoming The Fifth Branch, William A. Birdthistle, M. Todd Henderson
Becoming The Fifth Branch, William A. Birdthistle, M. Todd Henderson
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No abstract provided.
Foreign Affairs Federalism And The Limits Of Executive Power, Zachary D. Clopton
Foreign Affairs Federalism And The Limits Of Executive Power, Zachary D. Clopton
Articles
No abstract provided.
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Articles
No abstract provided.
Forum Choice For Terrorism Suspects, Aziz Huq
Forum Choice For Terrorism Suspects, Aziz Huq
Articles
What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …
Binding The Executive (By Law Or By Politics), Aziz Huq
Binding The Executive (By Law Or By Politics), Aziz Huq
Articles
No abstract provided.
Judicial Takings Or Due Process?, Lior Strahilevitz, Eduardo Peñalver
Judicial Takings Or Due Process?, Lior Strahilevitz, Eduardo Peñalver
Articles
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court concluded that the Takings Clause of the U.S. Constitution prohibits the judiciary from declaring that "what was once an established right of private property no longer exists" unless the property owner in question receives just compensation. In this Article, we delineate the boundaries between a judicial taking and a violation of the Constitution's due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach. Our argument proceeds in …
Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein
Congressional Will And The Role Of The Executive In Bivens Actions: What Is Special About Special Factors?, Anya Bernstein
Articles
No abstract provided.
Access And The Public Domain, Randal C. Picker
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Articles
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information intensive because the migrant's "type" and the migrant's post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulating functions. American immigration law, for example, delegates extensive authority to both private entities--paradigmatically, employers and families-and to the fifty states. From the government's perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about …
Forecasting The Flashpoints, Nicholas Stephanopoulos
Inflation Indicators, Jonathan Masur
Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein
Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein
Articles
No abstract provided.
Pay For Regulator Performance, M. Todd Henderson, Frederick Tung
Pay For Regulator Performance, M. Todd Henderson, Frederick Tung
Articles
Few doubt that executive compensation arrangements encouraged the excessive risk taking by banks that led to the recent Financial Crisis. Accordingly, academics and lawmakers have called for the reform of banker pay practices. In this Article, we argue that regulator pay is to blame as well, and that fixing it may be easier and more effective than reforming banker pay. Regulatory failures during the Financial Crisis resulted at least in part from a lack of sufficient incentives for examiners to act aggressively to prevent excessive risk. Bank regulators are rarely paid for performance, and in atypical cases involving performance bonus …
Physical And Regulatory Takings: One Distinction Too Many, Richard A. Epstein
Physical And Regulatory Takings: One Distinction Too Many, Richard A. Epstein
Articles
No abstract provided.
Preserving Political Speech From Ourselves And Others, Aziz Huq
Preserving Political Speech From Ourselves And Others, Aziz Huq
Articles
No abstract provided.
Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss
Response And Colloquy Concerning The Papers By Jack Balkin And David Strauss, David A. Strauss
Articles
No abstract provided.
The Politics Of Incivility, Bernard E. Harcourt
Unifying Copyright: An Instrumentalist's Response To Shyamkrishna Balganesh, Richard A. Epstein
Unifying Copyright: An Instrumentalist's Response To Shyamkrishna Balganesh, Richard A. Epstein
Articles
No abstract provided.
When To Hold, When To Fold, And When To Reshuffle: The Art Of Decisionmaking On A Multi-Member Court, Diane P. Wood
When To Hold, When To Fold, And When To Reshuffle: The Art Of Decisionmaking On A Multi-Member Court, Diane P. Wood
Articles
This Essay explores the instrumental and normative considerations that prompt judges to publish separate opinions. After discussing the traditions of separate writing in American judicial practice, the author provides a contemporary judge's perspective on the aims of separate opinions and on the cost-benefit analysis that judges invariably undertake when contemplating whether to write a concurrence or dissent. Turning to her own work on the Seventh Circuit, the author then identifies three broad categories of dissents she has penned over the past sixteen years: "principle-based dissents, " "'process-based dissents, " and "accuracy-focused dissents. " The Essay concludes by suggesting that a …
Better Mistakes In Patent Law, Andres Sawicki
Better Mistakes In Patent Law, Andres Sawicki
Articles
This Article analyzes patent mistakes-that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones. Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others. This Article compares the costs of making mistakes of different types, at …
Title Vii: A Shift From Sex To Relationships, Victoria Schwartz
Title Vii: A Shift From Sex To Relationships, Victoria Schwartz
Articles
No abstract provided.
Redistricting And The Territorial Community, Nicholas Stephanopoulos
Redistricting And The Territorial Community, Nicholas Stephanopoulos
Articles
As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional- but it has also rejected every standard suggested to date for distinguishing lawful fr
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Articles
No abstract provided.
Clarification Needed: Fixing The Jurisdiction Venue And Clarification Act, William Baude
Clarification Needed: Fixing The Jurisdiction Venue And Clarification Act, William Baude
Articles
No abstract provided.
Recognizing Race, Justin Driver
When Was Judicial Self-Restraint?, Aziz Huq
When Was Judicial Self-Restraint?, Aziz Huq
Articles
This Essay responds to Judge Posner's Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …