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Full-Text Articles in Law
Becoming A Fifth Branch, M. Todd Henderson, William A. Birdthistle
Becoming A Fifth Branch, M. Todd Henderson, William A. Birdthistle
Articles
No abstract provided.
Patent Invalidity Versus Noninfringement, Roger Ford
Standing For The Structural Constitution, Aziz Huq
Beyond Insolvency, Vincent Buccola
Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood
Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood
Articles
No abstract provided.
The Boundaries Of The Moral (And Legal) Community, Brian Leiter
The Boundaries Of The Moral (And Legal) Community, Brian Leiter
Articles
No abstract provided.
Advertisements Impact The Physiological Efficacy Of A Branded Drug, Emir Kamenica, Robert Naclerio, Anup Malani
Advertisements Impact The Physiological Efficacy Of A Branded Drug, Emir Kamenica, Robert Naclerio, Anup Malani
Articles
No abstract provided.
Mock Trials And Real Justices And Judges, Richard A. Posner
Mock Trials And Real Justices And Judges, Richard A. Posner
Articles
No abstract provided.
We The People, They The People, And The Puzzle Of Democratic Constitutionalism, David A. Strauss
We The People, They The People, And The Puzzle Of Democratic Constitutionalism, David A. Strauss
Articles
No abstract provided.
Happiness Institutions, Jennifer Nou
Toward A Positive Theory Of Privacy Law, Lior Strahilevitz
Toward A Positive Theory Of Privacy Law, Lior Strahilevitz
Articles
No abstract provided.
Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Articles
Cost-benefit analysis (CBA) is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates significant systemic errors. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from studies in the field of hedonic psychology that track people's actual experience …
Agency Self-Insulation Under Presidential Review, Jennifer Nou
Agency Self-Insulation Under Presidential Review, Jennifer Nou
Articles
Agencies possess enormous regulatory discretion. This discretion allows executive branch agencies in particular to insulate their decisions from presidential review by raising the costs of such review. They can do so, for example, through variations in policymaking form, cost-benefit analysis quality, timing strategies, and institutional coalition-building. This Article seeks to help shift the literature's focus on courtcentered agency behavior to consider instead the role of the President under current executive orders. Specifically, the Article marshals public-choice insights to offer an analytic framework for what it calls agency self-insulation under presidential review, illustrates the phenomenon, and assesses some normative implications. The …
The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein
The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein
Articles
No abstract provided.
Tiers Of Scrutiny In Enumerated Powers Jurisprudence, Aziz Huq
Tiers Of Scrutiny In Enumerated Powers Jurisprudence, Aziz Huq
Articles
This Article identifies and analyzes the recent emergence of a "tiers of scrutiny" system in Supreme Court jurisprudence respecting the boundaries of Congress's enumerated powers. The inquiry is motivated by the Court's recent ruling on the federal healthcare law, which demonstrated that the national legislature's election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power's substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in …
Not Unwritten, After All? (Reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents And Principles We Live By (2012)), David A. Strauss
Not Unwritten, After All? (Reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents And Principles We Live By (2012)), David A. Strauss
Articles
No abstract provided.
The Problem Of Resource Access, Lee Anne Fennell
The Problem Of Resource Access, Lee Anne Fennell
Articles
The Coasean insight that transaction costs stand between the world as we know it and an ideal of perfect efficiency has provided generations of law and economics scholars with an analytic North Star But for legal scholars interested in the efficiency implications of property arrangements, transaction costs turn out to constitute an unhelpful category. Transaction costs are related to property rights in unstable and contested ways, and they comprise a heterogeneous set of impediments, not all of which are amenable to cost-effective reduction through law. Theating them as focal confuses the cause of our difficulties in structuring access to resources …
Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq
Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq
Articles
No abstract provided.
Raising The Stakes In Patent Cases, Anup Malani, Jonathan Masur
Raising The Stakes In Patent Cases, Anup Malani, Jonathan Masur
Articles
No abstract provided.
Policy Preferences And Legal Interpretation, Anup Malani, Ward Farnsworth, Dustin F. Guzior
Policy Preferences And Legal Interpretation, Anup Malani, Ward Farnsworth, Dustin F. Guzior
Articles
No abstract provided.
The Social Production Of National Security, Aziz Huq
The Social Production Of National Security, Aziz Huq
Articles
This Article analyzes a recent policy innovation offered by governments on both sides of the Atlantic as a means of mitigating one form of national security risk: the idea that private individuals and voluntary associations have an untapped capacity for combating terrorism and in particular al Qaeda. Bold assertions in recent strategy statements mooting this possibility have wanted for any supporting account of how private behavior conduces to security. Even if the claimed social production of security against terrorism is causally well-founded, it is unclear how the state can elicit desirable private conduct. Consequently, the proposal's legal and policy ramifications …
Book Review (Reviewing Jack M. Balkin, Living Originalism (2011)), David A. Strauss
Book Review (Reviewing Jack M. Balkin, Living Originalism (2011)), David A. Strauss
Articles
No abstract provided.
Our Electoral Exceptionalism, Nicholas Stephanopoulos
Our Electoral Exceptionalism, Nicholas Stephanopoulos
Articles
Election law suffers from a comparative blind spot. Scholars in the field have devoted almost no attention to how other countries organize their electoral systems, let alone to the lessons that can be drawn from foreign experiences. This Article begins to fill this gap by carrying out the first systematic analysis of redistricting practices around the world. The Article initially separates district design into its three constituent components: institutions, criteria, and minority representation. For each component, the Article then describes the approaches used in America and abroad, introduces a new conceptual framework for classifying different policies, and challenges the exceptional …
Is Texas Hold 'Em A Game Of Chance? A Legal And Economic Analysis, Thomas J. Miles, Steven Levitt, Andrew M. Rosenfield
Is Texas Hold 'Em A Game Of Chance? A Legal And Economic Analysis, Thomas J. Miles, Steven Levitt, Andrew M. Rosenfield
Articles
In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or luck is the "dominant factor" in the game. We argue that courts' conception of a dominant factor— whether chance swamps the effect of skill in playing a single hand of poker—is unduly narrow. We develop four alternative tests to distinguish the impact of skill and …
Legal Realisms, Old And New, Brian Leiter
Public-Private Partnerships And Termination For Convenience Clauses: Time For A Mandate, Julie Roin
Public-Private Partnerships And Termination For Convenience Clauses: Time For A Mandate, Julie Roin
Articles
No abstract provided.
Foreword: The Unfinished Business Of The Supreme Court - An Introduction, Richard A. Epstein
Foreword: The Unfinished Business Of The Supreme Court - An Introduction, Richard A. Epstein
Articles
No abstract provided.
Intellectual Property And The Law Of Contract: The Case Against "Efficient Breach", Richard A. Epstein
Intellectual Property And The Law Of Contract: The Case Against "Efficient Breach", Richard A. Epstein
Articles
No abstract provided.
Jersey Central Power & Light Co V Federal Energy Regulatory Comission: Robert Bork On Public Utility Rate Regulation--And Lochner V New York, Richard A. Epstein
Jersey Central Power & Light Co V Federal Energy Regulatory Comission: Robert Bork On Public Utility Rate Regulation--And Lochner V New York, Richard A. Epstein
Articles
No abstract provided.
Extraterritoriality And Extranationality: A Comparative Study, Zachary D. Clopton
Extraterritoriality And Extranationality: A Comparative Study, Zachary D. Clopton
Articles
International lawyers are familiar with the concept of extraterritoriality the application of one country's laws to persons, conduct, or relationships outside of that country. Yet the transborder application of law is not limited to international cases. In many states, the presence of indigenous peoples, often within defined borders, creates an analogous puzzle. This Article begins a comparative study of foreign-and native-affairs law by examining the application of domestic laws to foreign facts ("extraterritoriality") and to indigenous peoples, often called "nations" ("extranationality"). Using a distinctive double-comparative perspective, this Article analyzes extraterritoriality and extranationality across three countries: the United States, Canada, and …