Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 52
Full-Text Articles in Law
Erie's Starting Points: The Potential Role Of Default Rules In Structuring Choice Of Law Analysis, Allan Erbsen
Erie's Starting Points: The Potential Role Of Default Rules In Structuring Choice Of Law Analysis, Allan Erbsen
Articles
This contribution to a symposium marking the seventy-fifth anniversary of Erie Railroad Company v. Tompkins is part of a larger project in which I seek to demystify a decision that has enchanted, entangled, and enervated commentators for decades. In prior work I contended that the “Erie doctrine” is a misleading label encompassing four distinct inquiries that address the creation, interpretation, and prioritization of federal law and the adoption of state law when federal law is inapplicable. This article builds from that premise to argue that courts pursuing Erie’s four inquiries would benefit from default rules that establish initial assumptions and …
What's "Different" (Enough) In Eighth Amendment Law?, Richard Frase
What's "Different" (Enough) In Eighth Amendment Law?, Richard Frase
Articles
In Miller v. Alabama1 and Jackson v. Hobbs2 the Supreme Court reaffirmed its conclusions in two earlier cases, Roper v. Simmons3 and Graham v. Florida,4 that “children are constitutionally different from adults for purposes of sentencing”5 in ways that justify greater Eighth Amendment protection from severe sentences. Miller and Jackson (hereafter referred to for most purposes as Miller) also reaffirmed the Court’s conclusion in Graham that, although “death is different” for purposes of Eighth Amendment law, some of the substantive and analytic principles previously applied only in death penalty cases can also be applied to the most severe prison sentence, …
Law And Reasons: Comments On Rodriguez-Blanco, Brian Bix
Law And Reasons: Comments On Rodriguez-Blanco, Brian Bix
Articles
Veronica Rodriguez-Blanco explora con minuciosidad en su detallado e importante artículo, “Reasons in Action v Triggering Reasons: A Reply to Enoch on Reason-Giving and Legal Normativity”, la naturaleza del otor- gamiento de razones, en aras de cuestionar el influyente trabajo reciente de David Enoch sobre el otorgamiento de razones y el derecho. Si bien el artículo de Rodriguez-Blanco constituye una importante contribución a la literatura en cuanto a la mejor comprensión del otorgamiento de razo- nes y la razón práctica, no está claro si el enfoque hacia las razones para la acción, reformado sobre la línea de lo que sugiere …
Litigation's Regulatory Pathways And The Administrative State: Lessons From U.S. And Australian Climate Change Governance, Hari Osofsky, Jacqueline Peel
Litigation's Regulatory Pathways And The Administrative State: Lessons From U.S. And Australian Climate Change Governance, Hari Osofsky, Jacqueline Peel
Articles
The administrative state struggles to address massive, complex problems such as ameliorating the financial crisis, preventing terrorism, or responding to climate change. These problems cut across levels of government — local, state, national, international — and substantive areas of law. Yet our governance structures, for the most part, are not designed to deal well with issues that involve multiple types of governance authority and institutions. A burgeoning literature by leading U.S. scholars describes this problem and proposes solutions. These analyses often include some case law, but their primary focus has been on the legislative and executive branches in the United …
Monitoring, Reporting, And Recalling Defective Financial Products, Daniel Schwarcz
Monitoring, Reporting, And Recalling Defective Financial Products, Daniel Schwarcz
Articles
In recent years, innovations in consumer financial protection have drawn heavily from the law governing the safety of tangible products. This short essay, prepared for a symposium entitled Frontiers of Consumer Protection, extends this approach by evaluating whether the law governing post-sale product safety for tangible consumer products offers potential lessons for consumer financial protection. In particular, it considers the extent to which the law could require providers of consumer financial products to affirmatively monitor, report or correct regulatory problems with their products that come to light after sale. Such post-sale self-policing by financial firms could offer benefits similar to …
Saving Small-Employer Health Insurance, Amy B. Monahan, Daniel Schwarcz
Saving Small-Employer Health Insurance, Amy B. Monahan, Daniel Schwarcz
Articles
No abstract provided.
Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna
Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna
Articles
The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything. Yet …
Jury Size And The Hung-Jury Paradox, Francesco Parisi, Barbara Luppi
Jury Size And The Hung-Jury Paradox, Francesco Parisi, Barbara Luppi
Articles
Juries are a fundamental element of the criminal justice system. In this article, we model jury decision making as a function of two institutional variables: jury size and voting requirement. We expose the critical interdependence of these two elements in minimizing the probabilities of wrongful convictions, of wrongful acquittals, and of hung juries. We find that the use of either large nonunanimous juries or small unanimous juries offers alternative ways to maximize the accuracy of verdicts while preserving the functionality of juries. Our framework, which lends support to the elimination of the unanimity requirement in the presence of large juries, …
Unpacking The Force Of Law, Kristin Hickman
Dampening Financial Regulatory Cycles, Brett Mcdonnell
America's Racially Diverse Suburbs: Opportunities And Challenges, Myron Orfield, Thomas F. Luce
America's Racially Diverse Suburbs: Opportunities And Challenges, Myron Orfield, Thomas F. Luce
Articles
No abstract provided.
A History Of Legal History Courses Offered In American Law Schools, Joan Howland
A History Of Legal History Courses Offered In American Law Schools, Joan Howland
Articles
No abstract provided.
Numerical Half Truths, Human Lies, And Other Distortions Of Truth, Richard W. Painter
Numerical Half Truths, Human Lies, And Other Distortions Of Truth, Richard W. Painter
Articles
No abstract provided.
Sworn To Fun, Loyal To None: Time Inconsistent Preferences In Investment Banking, Richard W. Painter
Sworn To Fun, Loyal To None: Time Inconsistent Preferences In Investment Banking, Richard W. Painter
Articles
No abstract provided.
Tax Benefits, Property Rights, And Mandates: Considering The Future Of Government Support For Renewable Energy, Alexandra Klass
Tax Benefits, Property Rights, And Mandates: Considering The Future Of Government Support For Renewable Energy, Alexandra Klass
Articles
This essay explores the history of tax benefits, property rights benefits, and mandates for energy development for the purpose of gaining insights on how such incentives can best be used to encourage the development of renewable energy. Part I describes some of the tax preferences and other financial incentives the U.S. government has historically provided to the energy sector, including to fossil fuel development, renewable fuels (particularly ethanol), and renewable electricity sources. It compares and contrasts the varying types and levels of support for these energy sectors, and concludes that the tax preferences and other financial support provided to date …
The Law Of Friction, William Mcgeveran
The Law Of Friction, William Mcgeveran
Articles
“Frictionless sharing” became a Silicon Valley catchphrase in 2011. It refers to platforms such as Spotify or the Washington Post Social Reader that automatically publicize users’ activities in social networks like Facebook, rather than waiting for approval of each individual disclosure. This article carefully analyzes the benefits and drawbacks of frictionless sharing. Social media confers considerable advantages on individuals, their friends, and of course intermediaries like Spotify and Facebook. But many implementations of frictionless architecture have gone too far, potentially invading privacy and drowning useful information in a tide of meaningless spam. The article also dismantles the rhetoric of frictionless …
Who Must Presume Whom To Be Innocent Of What?, Antony Duff
Who Must Presume Whom To Be Innocent Of What?, Antony Duff
Articles
This paper considers the roles that may be played by a “presumption of innocence” outside the criminal trial — a presumption that reflects a general principle of civic trust. We can understand the significance of this presumption, and the ways in which it can be qualified (without being defeated) by attending to some of the normative roles that citizens might take on, or have imposed on them, in relation to the criminal law, and the responsibilities or duties that attach to those roles. Particular attention is paid to the distinctive roles of “defendant” and of “ex-offender”, and to the question …
It's The Law Schools Stupid! Explaining The Continuing Increase In The Number Of Lawyers, Herbert M. Kritzer
It's The Law Schools Stupid! Explaining The Continuing Increase In The Number Of Lawyers, Herbert M. Kritzer
Articles
Many countries around the world have experienced sharp increases in the number of legal professionals over the last 40 to 50 years. In this paper, I focus on the role of the gatekeepers which in most countries today are the institutions that provide education and training for those hoping to enter the profession. I argue that while the profession may have an incentive to control the “production of producers,” the educational institutions do not share this incentive. While this argument has been made previously, in this paper I seek to draw out the implications of the institutional incentives, both with …
The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer
The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer
Articles
This paper was prepared for the 2012 Clifford Symposium honoring Marc Galanter which was held at DePaul Law School. One aspect of Galanter’s recent work is on the phenomenon he labeled the “vanishing trial.” In this paper I examine the problems that arise when one seeks to count the number of trials. I show that the definition of a trial, other than a jury trial, is highly ambiguous. There are many trial-like events taking place in venues we do not label “courts.” Even in the court setting, and even for jury trials, there are vast differences in when a trial …
Inferring Desire, Jessica A. Clarke
Inferring Desire, Jessica A. Clarke
Articles
In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results. This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …
Takings And Transmission, Alexandra B. Klass
Takings And Transmission, Alexandra B. Klass
Articles
Ever since the Supreme Court's controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in Kelo. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly owned projects such as schools, post offices, and other government buildings, or “use by the public” takings that condemn land for railroad lines, electric transmission lines, or other infrastructure projects. However, …
Erie's Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen
Erie's Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen
Articles
This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence. 2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its progeny. Decades …
Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin
Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin
Articles
Transitional Justice as a motif, a discourse and a practice continues to entice analysis from scholars, practitioners and policy makers. It is a field that has rapidly expanded, and that has both the fortune and disadvantage of being termed an "industry." The growth of transitional justice is both an opportunity and a warning, as the challenges raised by massive human rights violations and transitions from violence to peace or from repressive regimes to more liberal ones continue to preoccupy scholars and practitioners. Each new country specific context facilitates revisiting old trade-offs and concepts revealing new elements to transitional dilemmas.
"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin
"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin
Articles
Reviewing Thomas U. Berger, War Guilt, and World Politics After World War II (2012), Larry May, After War Ends: A Philosophical Perspective (2012), and Kimberly Theidon, Intimate Enemies: Violence and Reconciliation in Peru (2012).
Situating Women In Counterterrorism Discourses: Undulating Masculinities And Liminal Femininities, Fionnuala Ní Aoláin
Situating Women In Counterterrorism Discourses: Undulating Masculinities And Liminal Femininities, Fionnuala Ní Aoláin
Articles
The preoccupation with the challenges posed by violent actors has long existed for many states, whether such actors are characterized as terrorists or insurgents, nonstate or paramilitary actors. The events of September 11, 2001, brought a new urgency and vibrancy to state action in the realm of counterterrorism, illustrated by both the response of national legal systems as well as more concerted efforts to achieve multilateral and multilevel counterterrorism reactions on the international plane.1 From a feminist perspective, it is notable that terrorism and counterterrorism have long been of marginal interest to mainstream feminist legal theorizing.2 This is partly because …
Rethinking The Law Firm Organizational Form And Capitalization Structure, Edward S. Adams
Rethinking The Law Firm Organizational Form And Capitalization Structure, Edward S. Adams
Articles
The goal of this Article is to examine the partnership model and advocate for a change in the Model Rules that would allow for public ownership of law firms, and to make disclosure of firm financials a mandatory requirement for all firms with over 100 lawyers. Part II explores the history and evolution of limited liability and law firm structures in the United States. Part III discusses incorporated law firms and MDPs and how they might benefit U.S. law firms. Part IV looks at the developments in the United Kingdom and Australia and the forces of globalization that have an …
Free Speech Aboard The Leaky Ship Of State: Calibrating First Amendment Protections For Leakers Of Classified Information, Heidi Kitrosser
Free Speech Aboard The Leaky Ship Of State: Calibrating First Amendment Protections For Leakers Of Classified Information, Heidi Kitrosser
Articles
The Obama Administration has initiated six prosecutions of government employees for leaking classified information. This is double the number of prosecutions brought by all previous administrations combined. The rise in prosecutions, coupled with other developments – most notably a series of disclosures from the website wikileaks – has brought a renewed focus to the first amendment status of classified information and those who disseminate it. Most of the attention and concern, however, has centered on the protections due non-governmental third parties who publish information that is leaked to them. When their attention turns to leakers, commentators most often argue or …
An Empirical Analysis Of Case Outcomes Under The Ada Amendments Act, Stephen F. Befort
An Empirical Analysis Of Case Outcomes Under The Ada Amendments Act, Stephen F. Befort
Articles
Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines …
Who's The Father?, Naomi Cahn, June Carbone
Who's The Father?, Naomi Cahn, June Carbone
Articles
As this brief online essay observes, the litigation that produced the Supreme Court 2013 decision in Adoptive Couple v. Baby Girl demonstrates why we are no closer to a definitive resolution of what to do when parents do not share assumptions about how to raise their child. The case illustrates the national lack of agreement on what makes someone a parent. At the core of these differences is the question of how to align parental behavior with the promotion of the child’s interest in stable and secure relationships.
The End Of Men Or The Rebirth Of Class?, June Carbone, Naomi Cahn
The End Of Men Or The Rebirth Of Class?, June Carbone, Naomi Cahn
Articles
This article argues that much of what has been described as “the end of men” is in fact the recreation of class. Greater inequality among men and among women has resurrected class differences and changed the way men and women relate to each other and channel resources to their children. While women have in fact gained ground in the workplace and acquired greater ability to live, work, play and raise children without men, a mere relative move towards sex equality only masks the more fundamental changes occurring in American society and the continuing existence of patriarchy. First, the improved freedom …