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Full-Text Articles in Law
Regulatory Taxings, Eduardo Peñalver
Regulatory Taxings, Eduardo Peñalver
Articles
The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …
'Bound Fast And Brought Under The Yoke': John Adams And The Regulation Of Privacy At The Founding, Alison Lacroix
'Bound Fast And Brought Under The Yoke': John Adams And The Regulation Of Privacy At The Founding, Alison Lacroix
Articles
No abstract provided.
Remarks On The Alien Tort Claims Act And Transitional Justice, Eric A. Posner
Remarks On The Alien Tort Claims Act And Transitional Justice, Eric A. Posner
Articles
No abstract provided.
India - Measures Affecting The Automotive Sector Paper, Alan O. Sykes, Kyle Bagwell
India - Measures Affecting The Automotive Sector Paper, Alan O. Sykes, Kyle Bagwell
Articles
No abstract provided.
Chile - Price Band System And Safeguard Measures Relating To Certain Agriculture Products Paper, Alan O. Sykes, Kyle Bagwell
Chile - Price Band System And Safeguard Measures Relating To Certain Agriculture Products Paper, Alan O. Sykes, Kyle Bagwell
Articles
No abstract provided.
Citizenship, Standing, And Immigration Law, Adam B. Cox
Citizenship, Standing, And Immigration Law, Adam B. Cox
Articles
Courts and commentators typically evaluate constitutional immigration law from the perspective of aliens. But that approach pays insufficient attention to the ways immigration law affects the interests and rights of citizens. In particular, an alien-centered approach fails to consider the central role immigration law plays in national self-definition and, consequently, ignores the possibility that immigration law may injure citizens by defining the national political community in constitutionally impermissible ways. Considering federal immigration law from the perspective of citizens, this Article demonstrates that immigration policy, which contemporary constitutional doctrine largely insulates from attack, should not be immune to challenges by citizens. …
Citizenship, Standing, And Immigration Law, Adam B. Cox
Citizenship, Standing, And Immigration Law, Adam B. Cox
Articles
Courts and commentators typically evaluate constitutional immigration law from the perspective of aliens. But that approach pays insufficient attention to the ways immigration law affects the interests and rights of citizens. In particular, an alien-centered approach fails to consider the central role immigration law plays in national self-definition and, consequently, ignores the possibility that immigration law may injure citizens by defining the national political community in constitutionally impermissible ways. Considering federal immigration law from the perspective of citizens, this Article demonstrates that immigration policy, which contemporary constitutional doctrine largely insulates from attack, should not be immune to challenges by citizens. …
Partisan Fairness And Redistricting Politics, Adam B. Cox
Partisan Fairness And Redistricting Politics, Adam B. Cox
Articles
Courts and scholars have operated on the implicit assumption that the Supreme Court's "one person, one vote" jurisprudence put redistricting politics on a fixed, ten-year cycle. Recent redistricting controversies in Colorado, Texas, and elsewhere, however, have undermined this assumption, highlighting the fact that most states are currently free to redraw election districts as often as they like. This essay explores whether partisan fairness-a normative commitment that both scholars and the Supreme Court have identified as a central concern of districting arrangements- would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this …
Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty
Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty
Articles
Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity.1 It holds no less true for modern constitutions, including the Constitution of the United States.2 Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism.
One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which …
Note, Underenfranchisement: Black Voters And The Presidential Nomination Process, Justin Driver
Note, Underenfranchisement: Black Voters And The Presidential Nomination Process, Justin Driver
Articles
No abstract provided.
Common Interest Tragedies, Lee Anne Fennell
A Farewell To Pragmatism, Richard A. Epstein
Corporate Heroin: A Defense Of Perks, Executive Loans, And Conspicuous Consumption, M. Todd Henderson, James C. Spindler
Corporate Heroin: A Defense Of Perks, Executive Loans, And Conspicuous Consumption, M. Todd Henderson, James C. Spindler
Articles
We argue that firms undertake to reduce employee savings in order to avoid final period problems that occur when employees accumulate enough wealth to retire and leave the industry. Normally, reputation constrains employee behavior, since an employee who "cheats" at one firm will then find herself unable to get a job at another However, employees who have saved such that they no longer care about continued employment will act opportunistically in the final periods of employment, which can destroy much or all of the surplus otherwise created by the employment relationship. We believe that this sort of final period cheating …
Marriage Licenses, Mary Anne Case
Privatizing Reparations, Saul Levmore
Optimal War And Jus Ad Bellum, Eric A. Posner, Alan O. Sykes
Optimal War And Jus Ad Bellum, Eric A. Posner, Alan O. Sykes
Articles
The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decisions of states to use force against "rogue" states and argue that under certain conditions, it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.
Federalism And The Enforcement Of Antitrust Laws By State Attorneys General, Richard A. Posner
Federalism And The Enforcement Of Antitrust Laws By State Attorneys General, Richard A. Posner
Articles
No abstract provided.
Foreword: A Culture Of Civil Liberties, Geoffrey R. Stone
Foreword: A Culture Of Civil Liberties, Geoffrey R. Stone
Articles
No abstract provided.
Reply: Legitimacy And Obedience, David A. Strauss
Book Review, Terrorism, Freedom, And Security By Philip B. Heymann, Nicholas Stephanopoulos
Book Review, Terrorism, Freedom, And Security By Philip B. Heymann, Nicholas Stephanopoulos
Articles
No abstract provided.
Hail Yale Tribute: Yale Kamisar, Albert Alschuler
Remembering Pine Gate, Douglas G. Baird
'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar
'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar
Articles
No abstract provided.
Allocating Developmental Control Among Parent, Child And The State, Emily Buss
Allocating Developmental Control Among Parent, Child And The State, Emily Buss
Articles
No abstract provided.
Radical Change Through Conventional Means, Emily Buss
Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard E. Harcourt
Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard E. Harcourt
Articles
No abstract provided.
Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar
Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar
Articles
This Essay explores an alternative to one of the pillars of contract law, that obligations arise only when there is "mutual assent "--when the parties reach consensus over the terms of the transaction. It explores a principle of "no-retraction," under which each party is obligated to terms it manifested and can retract only with some liability. In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime, obligations emerge gradually, as the positions of the negotiating parties draw closer. Further, the no-retraction liability …
Contracting Communities, Lee Anne Fennell
Contracting Communities, Lee Anne Fennell
Articles
Private residential developments governed by homeowners associations have rapidly proliferated in recent decades. The servitudes that form the backbone of these private developments are usually viewed as autonomy- and value-enhancing private contractual arrangements that are presumptively valid. Unfortunately, the appealing contractual justification for private land use regimes seems to have shut down many of the usual paths of inquiry into the ability of the resulting arrangements to deliver on consumer preferences. In this article, Professor Fennell seeks to bring the theory surrounding these developments up to speed by focusing on factors that can drive a wedge between homeowner preferences and …
Is Land Special?, Eduardo Peñalver
Is Land Special?, Eduardo Peñalver
Articles
This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …
Valuing Life: A Plea For Disaggregation, Cass R. Sunstein
Valuing Life: A Plea For Disaggregation, Cass R. Sunstein
Articles
Each government agency uses a uniform figure to measure the value of a statistical life (VSL). This is a serious mistake. The very theory that underlies current practice calls for far more individuation of the relevant values. According to that theory, VSL should vary across risks. More controversially, VSL should vary across individuals-even or especially if the result would be to produce a lower number for some people than for others. One practical implication is that a higher value should be given to programs that reduce cancer risks. Another is that government should use a higher VSL for programs that …