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Articles 31 - 60 of 347
Full-Text Articles in Law
An Old-Fashioned View Of The Nature Of Law, James Boyd White
An Old-Fashioned View Of The Nature Of Law, James Boyd White
Articles
The law is a not an abstract system or scheme of rules, as we often speak of it, but an inherently unstable structure of thought and expression. It is built upon a distinct set of dynamic and dialogic tensions, which include: tensions between ordinary language and legal language; between legal language and the specialized discourses of other fields; between language itself and the mute world that lies beneath it; between opposing lawyers; between conflicting but justifiable ways of giving meaning to the rules and principles of law; between substantive and procedural lines of thought; between law and justice; between the …
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 …
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))
Reconsidering Racial And Partisan Gerrymandering, Adam B. Cox, Richard T. Holden
Reconsidering Racial And Partisan Gerrymandering, Adam B. Cox, Richard T. Holden
Articles
In recent years, scholars have come to a general agreement about the relationship between partisan gerrymandering and racial redistricting. Drawing districts that contain a majority of minority voters, as is often required by the Voting Rights Act, is said to help minority voters in those districts but hurt the Democratic Party more broadly. This Article argues that this familiar claim is based on a mistaken assumption about how redistricters can best manipulate districts for partisan gain -an assumption grounded in the idea that all voters can be thought of as either Democrats or Republicans. Relaxing this assumption, and acknowledging that …
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 …
Radical Thought From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Luke's In Defense Of False Consciousness Governance And Power, Bernard E. Harcourt
Radical Thought From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Luke's In Defense Of False Consciousness Governance And Power, Bernard E. Harcourt
Articles
No abstract provided.
Feminist Fundamentalism As An Individual And Constitutional Commitment, Mary Anne Case
Feminist Fundamentalism As An Individual And Constitutional Commitment, Mary Anne Case
Articles
No abstract provided.
Ip Misuse And Innovation Harm, Thomas F. Cotter
Ip Misuse And Innovation Harm, Thomas F. Cotter
Articles
"This essay, a short response to Christina Bohannan’s important recent article, IP Misuse as Foreclosure, 96 Iowa Law Review 475 (2011), expresses agreement with Professor Bohannan’s conclusions that merely equating misuse with certain violations of substantive antitrust law is probably unwise; that the “beyond the scope” rationale nevertheless is vague; and that misuse doctrine might provide a useful tool for penalizing assertions of IP rights (principally copyright rights) that would foreclose access to the public domain and thus impinge upon free speech. The essay nevertheless expresses caution over Professor Bohannan’s call for courts to apply misuse doctrine to combat harms …
Private Religious Discrimination, National Security, And The First Amendment, Aziz Huq
Private Religious Discrimination, National Security, And The First Amendment, Aziz Huq
Articles
No abstract provided.
After Gender The Destruction Of Man - The Vatican's Nightmare Vision Of The 'Gender Agenda' For Law, Mary Anne Case
After Gender The Destruction Of Man - The Vatican's Nightmare Vision Of The 'Gender Agenda' For Law, Mary Anne Case
Articles
No abstract provided.
Enforcing Bargains In An Ongoing Marriage, Mary Anne Case
Enforcing Bargains In An Ongoing Marriage, Mary Anne Case
Articles
No abstract provided.
Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel
Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel
Articles
No abstract provided.
Building Reputation In Constitutional Courts: Political And Judicial Audiences, Tom Ginsburg, Nuno Garoupa
Building Reputation In Constitutional Courts: Political And Judicial Audiences, Tom Ginsburg, Nuno Garoupa
Articles
No abstract provided.
Empiricism And The Rising Incidence Of Coauthorship In Law, Tom Ginsburg, Thomas J. Miles
Empiricism And The Rising Incidence Of Coauthorship In Law, Tom Ginsburg, Thomas J. Miles
Articles
The recent growth of empirical scholarship in law, which some have termed "empirical legal studies," has received much attention. A less-noticed implication of this trend is its potential impact on the manner of scholarly production in legal academia. A common prediction is that academic collaboration rises with scholarly specialization. As the complexity of a field grows, more human capital and more diverse types of human capital are needed to make a contribution. This Article presents two tests of whether empiricism has spurred more coauthorship in law. First, the Article shows that the fraction of articles in the top fifteen law …
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.
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 …
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.
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. …
Fixing Unfair Contracts, Omri Ben-Shahar
Fixing Unfair Contracts, Omri Ben-Shahar
Articles
Various doctrines of contract and consumer protection law allow courts to strike down unfair contract terms. A large literature has explored the question which terms should be viewed as unfair, but a related question has never been studied systematically-what provision should replace the vacated unfair term? How should a distributively unfair contract be fixed? This Article demonstrates that the law uses three competing criteria for a replacement provision: (1) the most reasonable term; (2) a punitive term, strongly unfavorable to the overreaching party; and (3) the minimally tolerable term, which preserves the original term as much as is tolerable. The …
The Failure Of Mandated Discourse, Omri Ben-Shahar, Carl E. Schneider
The Failure Of Mandated Discourse, Omri Ben-Shahar, Carl E. Schneider
Articles
This Article explores the spectacular prevalence, and failure, of the single most common technique for protecting personal autonomy in modern society: mandated disclosure. The Article has four Parts: (1) a comprehensive summary of the recurring use of mandated disclosures, in many forms and circumstances, in the areas of consumer and borrower protection, patient informed consent, contract formation, and constitutional rights; (2) a survey of the empirical literature documenting the failure of the mandated disclosure regime in informing people and in improving their decisions; (3) an account of the multitude of reasons mandated disclosures fail, focusing on the political dynamics underlying …
The Creditors' Bargain And Option-Preservation Priority In Chapter 11, Anthony Casey
The Creditors' Bargain And Option-Preservation Priority In Chapter 11, Anthony Casey
Articles
Corporate reorganization under Chapter 11 of the Bankruptcy Code is built on the foundation of the absolute priority rule, which requires that senior creditors be paid in full before any value can be distributed to junior creditors. The standard law and economics understanding is that absolute priority follows inevitably from the "creditors' bargain" model. That model tells us that the optimal system of reorganization must respect nonbankruptcy contract rights while maximizing the expected value of assets in bankruptcy. The conventional wisdom is that absolute priority fits this bill as the singular way of protecting creditors' nonbankruptcy contract rights. But what …
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 …
Direct Democracy: Government Of The People, By The People, And For The People, Richard A. Epstein
Direct Democracy: Government Of The People, By The People, And For The People, Richard A. Epstein
Articles
No abstract provided.
Comment On Merrill On The Law Of Waste, Richard A. Posner
Comment On Merrill On The Law Of Waste, Richard A. Posner
Articles
No abstract provided.
Electoral Exceptionalism And The First Amendment: A Road Paved With Good Intentions, Geoffrey R. Stone
Electoral Exceptionalism And The First Amendment: A Road Paved With Good Intentions, Geoffrey R. Stone
Articles
No abstract provided.
Federalizing Fiduciary Duty: The Altered Scope Of Officer Fiduciary Duty Following Orderly Liquidation Under Dodd-Frank, Dorothy Shapiro Lund
Federalizing Fiduciary Duty: The Altered Scope Of Officer Fiduciary Duty Following Orderly Liquidation Under Dodd-Frank, Dorothy Shapiro Lund
Articles
No abstract provided.
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 …
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 …
Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares
Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares
Articles
Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches-namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question …
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. …