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2016

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Institution
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Articles 1 - 30 of 333

Full-Text Articles in Law

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin Dec 2016

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin

Articles

No abstract provided.


Regulating Secrecy, W. Nicholson Price Ii Dec 2016

Regulating Secrecy, W. Nicholson Price Ii

Articles

Inventors face a stark choice between two intellectual property systems of protecting innovative ideas: patents and trade secrecy. But accounts of this choice underexplore the role of the regulators that dominate some areas of innovation. Regulation interacts with intellectual property exclusivity in socially problematic ways by encouraging secrecy at the expense of innovation, efficiency, and competition. This Article theorizes how regulation empowers intellectual property generally, explains why this strengthening is problematic for trade secrecy but not for patents, and offers the solution of regulator-enforced disclosure. When a regulator defines a product or a process, it becomes much harder to successfully …


Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott Dec 2016

Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott

Articles

In case after case, prosecutors, judges and juries therefore still struggle to come up with a definition of slavery, looking for some set of criteria or indicia that will enable them to discern whether the phenomenon they are observing constitutes enslavement. In this definitional effort, contemporary jurists may imagine that in the past, surely the question was simpler: someone either was or was not a slave. However, the existence of a set of laws declaring that persons could be owned as property did not, even in the nineteenth century, answer by itself the question of whether a given person was …


The Political Ideologies Of American Lawyers, Adam S. Chilton, Adam Bonica, Maya Sen Dec 2016

The Political Ideologies Of American Lawyers, Adam S. Chilton, Adam Bonica, Maya Sen

Articles

No abstract provided.


Civil Rights In A Desegregating America, Nicholas Stephanopoulos Dec 2016

Civil Rights In A Desegregating America, Nicholas Stephanopoulos

Articles

No abstract provided.


The Case Against Free Speech, Brian Leiter Dec 2016

The Case Against Free Speech, Brian Leiter

Articles

No abstract provided.


Fee Simple Obsolete, Lee Anne Fennell Dec 2016

Fee Simple Obsolete, Lee Anne Fennell

Articles

No abstract provided.


The Church And Magna Carta, Richard H. Helmholz Dec 2016

The Church And Magna Carta, Richard H. Helmholz

Articles

No abstract provided.


The Constitutional Law Of Agenda Control, Aziz Huq Dec 2016

The Constitutional Law Of Agenda Control, Aziz Huq

Articles

No abstract provided.


The Plain Language Court, David A. Strauss Dec 2016

The Plain Language Court, David A. Strauss

Articles

No abstract provided.


Knowledge Goods And Nation-States, Daniel Hemel, Lisa Larrimore Ouellette Dec 2016

Knowledge Goods And Nation-States, Daniel Hemel, Lisa Larrimore Ouellette

Articles

No abstract provided.


Youth/Police Encounters On Chicago's South Side: Acknowledging The Realities, Craig B. Futterman, Chaclyn Hunt, Jamie Kalven Dec 2016

Youth/Police Encounters On Chicago's South Side: Acknowledging The Realities, Craig B. Futterman, Chaclyn Hunt, Jamie Kalven

Articles

No abstract provided.


Litigating The Blue Wall Of Silence: How To Challenge The Police Privilege To Delay Investigation, Aziz Huq, Richard H. Mcadams Dec 2016

Litigating The Blue Wall Of Silence: How To Challenge The Police Privilege To Delay Investigation, Aziz Huq, Richard H. Mcadams

Articles

No abstract provided.


Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah Dec 2016

Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah

Articles

Corporate privacy is an oxymoron. Individuals have a right to privacy, which the Supreme Court has recognized at least since Griswold v. Connecticut (1965). Warren and Brandeis’ famous defense of the right to privacy (1890) clearly applied only to individuals, because only individuals have the kind of feelings that are affected by invasions of privacy. Corporations are legal entities, and the concept of privacy does not apply to them, as the Supreme Court held in 1906. Thus, any objection to making corporate tax returns public cannot rest on the right to privacy. In fact, corporate returns were made public in …


Trouble On The Exchanges — Does The United Owe Billions To Health Insurers?, Nicholas Bagley Nov 2016

Trouble On The Exchanges — Does The United Owe Billions To Health Insurers?, Nicholas Bagley

Articles

Yet another bruising fight has erupted over health care reform. On September 9, 2016, the Obama administration offered to open settlement negotiations with health insurers that have sued the United States to recover billions of dollars that they claim they are owed. Congressional Republicans are incensed, believing that any settlement would illegally squander taxpayer dollars in a lastgasp effort to save the Affordable Care Act (ACA).


An Insurance-Based Typology Of Police Misconduct, John Rappaport Nov 2016

An Insurance-Based Typology Of Police Misconduct, John Rappaport

Articles

No abstract provided.


Can A Cost Sharing Arrangement Prevent A Tax Shelter Label?, Jeffrey M. Kadet Nov 2016

Can A Cost Sharing Arrangement Prevent A Tax Shelter Label?, Jeffrey M. Kadet

Articles

In connection with an ongoing effort of the government to examine certain Microsoft documents, the government on October 12, 2016, stated in a filed document that one of the transactions at issue is "unquestionably" a tax shelter for purposes of section 7525. The significance of that is in whether some written communications should be protected from IRS scrutiny by the section 7525 confidentiality privilege that may apply to tax advice between a taxpayer and tax practitioners. Under section 7525(b)(2), written communications will not qualify if they are "in connection with the promotion of the direct or indirect participation of the …


How And Why International Law Binds International Organizations, Kristina Daugirdas Nov 2016

How And Why International Law Binds International Organizations, Kristina Daugirdas

Articles

For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs, …


Did The Creation Of The United Nations Human Rights Council Produce A Better ‘Jury’?, Adam S. Chilton, Robert Golan-Vilella Nov 2016

Did The Creation Of The United Nations Human Rights Council Produce A Better ‘Jury’?, Adam S. Chilton, Robert Golan-Vilella

Articles

No abstract provided.


What Lurks Below Beckles, Leah Litman, Shakeer Rahman Nov 2016

What Lurks Below Beckles, Leah Litman, Shakeer Rahman

Articles

This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …


The Unfinished Business Of Horne V. Department Of Agriculture, Richard A. Epstein Nov 2016

The Unfinished Business Of Horne V. Department Of Agriculture, Richard A. Epstein

Articles

No abstract provided.


A Review (Reviewing Stephen Breyer, The Court And The World: American Law And The New Global Realities), Eric A. Posner Nov 2016

A Review (Reviewing Stephen Breyer, The Court And The World: American Law And The New Global Realities), Eric A. Posner

Articles

No abstract provided.


Bankruptcy's Endowment Effect, Anthony Casey Nov 2016

Bankruptcy's Endowment Effect, Anthony Casey

Articles

No abstract provided.


The Cycles Of Separation-Of-Powers Jurisprudence, Aziz Huq, Jon D. Michaels Nov 2016

The Cycles Of Separation-Of-Powers Jurisprudence, Aziz Huq, Jon D. Michaels

Articles

No abstract provided.


Unquantified Benefits And The Problem Of Regulation Under Uncertainty, Jonathan Masur, Eric A. Posner Nov 2016

Unquantified Benefits And The Problem Of Regulation Under Uncertainty, Jonathan Masur, Eric A. Posner

Articles

No abstract provided.


Magna Carta And The Law Of Nature, Richard H. Helmholz Nov 2016

Magna Carta And The Law Of Nature, Richard H. Helmholz

Articles

No abstract provided.


Enhancing The Effectiveness Of Your Legal Writing, Jason G. Dykstra Nov 2016

Enhancing The Effectiveness Of Your Legal Writing, Jason G. Dykstra

Articles

This article focuses on areas where busy practitioners can aspire for plain English and not only improve their writing but possibly avoid a few pitfalls. As Justice Brandeis once remarked, "There is no such thing as good writing. There is only good rewriting" So here are three areas to focus on as you rewrite: minimizing initialisms, acronyms, and defined terms; losing legal jargon and cutting clutter; and balancing legal terms and precision.


Using Advanced Conflict Waivers To Teach Drafting, Ethics, And Professionalism, Edward R. Becker Nov 2016

Using Advanced Conflict Waivers To Teach Drafting, Ethics, And Professionalism, Edward R. Becker

Articles

On a substantive and ethical level, I tell my students to take on faith that if you were to do all of this and take all this into account, if you were to apply the conflict of interest and the disqualifications rules, it could make it extremely difficult or many of the firms involved in these matters to avoid being conflicted out; especially, if the parties and the kind of firms involved were not dealing with these conflicts and issues until a problem arose. The question I ask my students again at this point is what could be done. What …


Should We Presume State Protection?, James C. Hathaway, Audrey Macklin Nov 2016

Should We Presume State Protection?, James C. Hathaway, Audrey Macklin

Articles

Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and …


How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley Oct 2016

How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley

Articles

Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual …