Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles

2018

Discipline
Institution
Keyword

Articles 1 - 30 of 326

Full-Text Articles in Law

Lawyer As Soothsayer: Exploring The Important Role Of Outcome Prediction In The Practice Of Law, Mark K. Osbeck Dec 2018

Lawyer As Soothsayer: Exploring The Important Role Of Outcome Prediction In The Practice Of Law, Mark K. Osbeck

Articles

Outcome prediction has always been an important part of practicing law. Clients rely heavily on their attorneys to provide accurate assessments of the potential legal consequences they face when making important decisions (such as whether to accept a plea bargain, or risk a conviction on a much more serious offense at trial). And yet, notwithstanding its enormous importance to the practice of law (and notwithstanding the handsome legal fees it commands), outcome prediction in the law remains a very imprecise endeavor. The reason for this inaccuracy is that the three principal tools lawyers have traditionally relied on to facilitate outcome ...


The Pope And The Capital Juror, Aliza Plener Cover Dec 2018

The Pope And The Capital Juror, Aliza Plener Cover

Articles

In a significant change to Catholic Church doctrine, Pope Francis recently declared that capital punishment is impermissible under all circumstances. Counterintuitively, the Pope’s pronouncement might make capital punishment less popular but more prevalent in the United States. This Essay anticipates this possible dynamic and, in so doing, explores how “death qualification” of capital juries can insulate the administration of the death penalty when community morality evolves away from capital punishment.


Antitrust Remedies For Labor Market Power, Suresh Naidu, Eric A. Posner, E. Glen Weyl Dec 2018

Antitrust Remedies For Labor Market Power, Suresh Naidu, Eric A. Posner, E. Glen Weyl

Articles

No abstract provided.


The Bankruptcy Partition, Douglas G. Baird, Anthony Casey, Randal C. Picker Dec 2018

The Bankruptcy Partition, Douglas G. Baird, Anthony Casey, Randal C. Picker

Articles

No abstract provided.


The Jurisprudence Of Anti-Erosion, Tom Ginsburg Dec 2018

The Jurisprudence Of Anti-Erosion, Tom Ginsburg

Articles

No abstract provided.


Treaties And Human Rights: The Role Of Long-Term Trends, Adam S. Chilton, Eric A. Posner Dec 2018

Treaties And Human Rights: The Role Of Long-Term Trends, Adam S. Chilton, Eric A. Posner

Articles

No abstract provided.


Criminal Justice, Inc., John Rappaport Dec 2018

Criminal Justice, Inc., John Rappaport

Articles

No abstract provided.


The Keyes Of Constitutional Law, Justin Driver Dec 2018

The Keyes Of Constitutional Law, Justin Driver

Articles

No abstract provided.


Sitaraman’S Mistaken Case For The Middle-Class Constitution, Richard A. Epstein Dec 2018

Sitaraman’S Mistaken Case For The Middle-Class Constitution, Richard A. Epstein

Articles

No abstract provided.


Comment On 'Judicial Compensation And Performance', J.J. Prescott Dec 2018

Comment On 'Judicial Compensation And Performance', J.J. Prescott

Articles

The most significant challenges to better understanding judicial behavior are lack of data and the absence of plausible exogenous variation in judicial environments. The random assignment of judges to cases has admittedly been helpful in gaining traction on the effects of judicial decisions (e.g., Dobbie, Goldin, and Yang 2018). Yet developing a full empirical account of “what judges maximize” (Posner 1993) would require a setting in which judges are randomly subjected to a wide variety of (real-world) environments with different costs, constraints, and rewards. This prospect remains pie in the sky, but that does not mean that we have ...


The Civil Rights Litigation Clearinghouse: Origins And Goals, Margo Schlanger Nov 2018

The Civil Rights Litigation Clearinghouse: Origins And Goals, Margo Schlanger

Articles

The Civil Rights Litigation Clearinghouse (http://clearinghouse.net) solves a significant information deficit related to civil rights litigation by posting information about thousands of ongoing and closed large-scale civil rights cases. Documents are OCR’d and searchable; cases are searchable by metadata tags as well as full-text searching. Each case has a litigation summary by a law student. We live in a civil rights era—a time when people are using the courts, among other strategies, to fight for civil rights. The Clearinghouse posts the records of those fights, the stories of civil rights cases—across topics, across regions, across ...


Compelled Subsidies And The First Amendment, William Baude, Eugene Volokh Nov 2018

Compelled Subsidies And The First Amendment, William Baude, Eugene Volokh

Articles

No abstract provided.


Arguing With Friends, William Baude, Ryan D. Doerfler Nov 2018

Arguing With Friends, William Baude, Ryan D. Doerfler

Articles

No abstract provided.


The Restoration Remedy In Private Law, Omri Ben-Shahar, Ariel Porat Nov 2018

The Restoration Remedy In Private Law, Omri Ben-Shahar, Ariel Porat

Articles

No abstract provided.


From Sagebrush Law To A Modern Profession, Kristina J. Running Nov 2018

From Sagebrush Law To A Modern Profession, Kristina J. Running

Articles

No abstract provided.


What We Don't See When We See Copyright As Property, Jessica Litman Nov 2018

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory ...


Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson Nov 2018

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws ...


Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson Oct 2018

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson

Articles

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices ...


Re-Playing Maimonides’ Codes: Designing Games To Teach Religious Legal Systems, Owen Gottlieb Oct 2018

Re-Playing Maimonides’ Codes: Designing Games To Teach Religious Legal Systems, Owen Gottlieb

Articles

Lost & Found is a game series, created at the Initiative for

Religion, Culture, and Policy at the Rochester Institute of

Technology MAGIC Center.1 The series teaches medieval

religious legal systems. This article uses the first two games

of the series as a case study to explore a particular set of

processes to conceive, design, and develop games for learning.

It includes the background leading to the author's work

in games and teaching religion, and the specific context for

the Lost & Found series. It discusses the rationale behind

working to teach religious legal systems more broadly, then

discuss the ...


Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan Oct 2018

Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan

Articles

The Bayh-Dole Act of 1980 established a new default rule that allowed nonprofit organizations and small businesses to own, as a routine matter, patents on inventions resulting from research sponsored by the federal government. Although universities helped get the Bayh-Dole Act through Congress, the primary goal, as reflected in the recitals at the beginning of the new statute, was not to benefit universities but to promote the commercial development and utilization of federally funded inventions. In the years since the passage of the Bayh-Dole Act, universities seem to have lost sight of this distinction. Their behavior as patent seekers, patent ...


Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy Shapiro Lund Oct 2018

Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy Shapiro Lund

Articles

No abstract provided.


Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A.E. Pottow Oct 2018

Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A.E. Pottow

Articles

In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee's administration of a debtor's estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of "bankruptcy M&A." My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is ...


Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow Oct 2018

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much ...


A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson Oct 2018

A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson

Articles

No abstract provided.


Congress In The Administrative State, Brian D. Feinstein Oct 2018

Congress In The Administrative State, Brian D. Feinstein

Articles

No abstract provided.


Intelligent Design, Christopher Buccafusco, Mark Lemley, Jonathan Masur Oct 2018

Intelligent Design, Christopher Buccafusco, Mark Lemley, Jonathan Masur

Articles

No abstract provided.


Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman Oct 2018

Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman

Articles

President Trump announced his nomination of Neil Gorsuch — the sixth most senior judge on a federal appellate court in the hinterland—for a seat on the Supreme Court in a formal, nationally televised ceremony. Judge Gorsuch squeezed the shoulder of his wife, a gesture that signaled not only his thrill at the nomination but his joy at being able to share it with her. There followed a bitterly partisan process, featuring hearings at which the nominee testified and deflected questions about his substantive views. A change in the Senate rules, ending the possibility of a filibuster, was necessary to bring ...


When Law Calls, Does Science Answer? A Survey Of Distinguished Scientists & Engineers, Shari Seidman Diamond, Richard O. Lempert Oct 2018

When Law Calls, Does Science Answer? A Survey Of Distinguished Scientists & Engineers, Shari Seidman Diamond, Richard O. Lempert

Articles

Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation’s most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of ...


Collaboration With Doctrinal Faculty To Introduce Creac, Beth Hirschfelder Wilensky Oct 2018

Collaboration With Doctrinal Faculty To Introduce Creac, Beth Hirschfelder Wilensky

Articles

When legal writing professors introduce CREAC (or IRAC, TREAT, etc.), our examples necessarily use some area of substantive law to demonstrate how the pieces of legal analysis fit together. And when we ask students to try drafting a CREAC analysis, they also have to learn the relevant substantive law first. Students might be asked to analyze whether a worker is an employee or independent contractor or whether the elements of a tort claim are satisfied. But that means that students need to learn the relevant substantive doctrine while they are also grappling with the basics of CREAC. In the language ...


Introduction, Shari S. Diamond, Richard O. Lempert Oct 2018

Introduction, Shari S. Diamond, Richard O. Lempert

Articles

Experts bedeviled the legal system long before seventeenth-century Salem, when the town's good citizens relied on youthful accusers and witchcraft experts to identify the devil's servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of ...