Law Commons^™

The Course Source: The Casebook Evolved, Stephen Johnson

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Law students are changing, law practice is changing, law schools are criticized for failing to prepare practice-ready lawyers, and there is nearly universal consensus that legal education must transform. However, the principal tool that many faculty members rely on to prepare their courses, the Langdellian casebook, is ill-suited for such transformation. This prototypical casebook, which is still the standard for many courses today, was designed for the Socratic dialogue and the case method mode of instruction. Although there is still a place for that method in legal education, other methods of instruction—the carriage bolts and lag screws of modern legal …

Financial Stability, Financial Services, And The Single Market, Caroline Bradley

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No abstract provided.

Presidential Leadership And The Separation Of Powers, Eric A. Posner

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Redundant Public-Private Enforcement, Zachary D. Clopton

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Strategic Rulemaking Disclosure, Jennifer Nou, Jed Stiglitz

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Book Review (Reviewing Guido Calabresi, The Future Of Law And Economics: Essays In Reform And Recollection), Eric A. Posner

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Missing Judge Tinder, Gerald Bepko, Daniel E. Pulliam, Diane P. Wood, Richard L. Young

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The Paradox Of Access Justice, And Its Application To Mandatory Arbitration, Omri Ben-Shahar

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Beyond Liberty: Toward A History And Theory Of Economic Coercion, Hiba Hafiz

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The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

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This Essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role,the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this filtering role in four scenarios: the intersection of treaties and individual rights; the relationship between the …

Judicial Lawmaking And General Principles Of Law In International Criminal Law, Neha Jain

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General principles of law are a primary mechanism for “gap-filling” in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposes the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal …

The United Nations Working Group On Arbitrary Detention: Procedures And Summary Of Jurisprudence, David Weissbrodt, Brittany Mitchell

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For nearly twenty-five years, the United Nations Working Group on Arbitrary Detention has provided a well-respected jurisprudence on fundamental human rights, such as: freedom of expression and religion; limits on administrative detention; restrictions on discrimination in detention; and violations of the right to fair trial. The Working Group has amassed a unique collection of legal principles applicable to individuals detained by the United States, including asylum seekers, immigrants, and refugees. The decisions of the Working Group have also applied to non-state actors.

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, And Climate Change In Comparative Perspective, Hari Osofsky, Jacqueline Peel

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Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes--often in interaction with litigation--has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants. Although many observers critique this state of affairs and wish for a legislature more able to act. this essay argues that more …

Sharing Residual Liability: ‘Cheapest Cost Avoider’ Revisited, Emanuela Carbonara, Alice Guerra, Francesco Parisi

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Economic models of tort law evaluate the efficiency of liability rules in terms of care and activity levels. A liability regime is optimal when it creates incentives to maximize the value of risky activities at the net of accident and precaution costs. The allocation of primary and residual liability allows policymakers to induce parties to undertake socially desirable care and activity levels. Traditionally, tort law systems have assigned residual liability either entirely on the tortfeasor or entirely on the victim. In this paper, we unpack the cheapest cost-avoider principle (Calabresi, 1970) to consider the virtues and the limits of loss-sharing …

Open Minds And Harmless Errors: Judicial Review Of Post-Promulgation Notice And Comment, Kristin Hickman, Mark Thomson

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In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked pre-promulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most of those cases, the agencies followed up with new final rules, responding to comments and often making changes in response thereto. Post-promulgation notice and comment do not precisely comply with the Administrative Procedure Act, yet are arguably close enough …

Arctic Energy Cooperation, Hari M. Osofsky, Jessica Shadian, Sara L. Fechtelkotter

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The Arctic – with almost a third of the world’s remaining natural gas and thirteen percent of its oil – is one of the globe’s last frontiers for competition over unexplored natural resources. The rapid pace of Arctic melting due to climate change has created opportunities to extract the region’s previously inaccessible offshore oil and gas. The 2015 controversy over the Obama Administration’s approval of Shell Oil’s drilling in the Chukchi Sea followed by the company’s decision to pull out highlighted the need for clear and effective regulation of Arctic drilling. Offshore oil spills are difficult to prevent and clean …

"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng, Katherine Cheng, Katherine Cheng

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This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes

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Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

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Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management's Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

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On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking.

The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal …

New Approaches To Energy Development In Indian Country: The Trust Relationship And Tribal Self-Determination At (Yet Another) Crossroads, Monte Mills

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Energy development in Indian country exists at the crossroads of tribal self-determination and the federal government's trust responsibility. This article reviews the foundations of this crossroads, describes recent developments, and analyzes pending proposals that may enhance both tribal sovereignty and energy development in Indian country.

Branding Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

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Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

Fundamental Rights In A Post-Obergefell World, Peter Nicolas

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In this Article, I identify and critically examine three substantive criticisms raised by the dissents in the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court's holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly, and in …

Bringing Demonstrative Evidence In From The Cold: The Academy's Role In Developing Model Rules, Maureen A. Howard, Jeffry C. Barnum

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To this day, judges and advocates struggle with the definition and use of "demonstrative evidence." The ambiguity of this term (or its close cousins "illustrative evidence" and evidence offered "for illustrative purposes only") infects the judicial process with uncertainty, hindering advocates when preparing for trial and, in some cases, producing erroneous verdicts. For example, the Seventh Circuit recently reversed a case for improper use of a demonstrative exhibit, and on retrial the result swung from a defense verdict to an $11 million plaintiffs victory. Uncertainty about the admission and use of demonstrative evidence has festered for decades. Lawyers innovate in …

Creative Capitalism And Human Trafficking: A Business Approach To Eliminate Forced Labor And Human Trafficking From Global Supply Chains, Dana Raigrodski

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A great amount of revenue generated by businesses in the global economy can be linked to the trafficking and enslavement of human beings. Yet, the current discourse on human trafficking fails to recognize the magnitude of benefit consumers, businesses, and economies gain from the work of forced and trafficked labor. Moreover, the limited efforts that seek to address this situation have focused on ways to encourage businesses to voluntarily adopt more socially responsible practices. These measures have had only limited success, and are generally believed to be in tension with the for-profit purposes of businesses.

Hence, the task of convincing …

Uncertain Futures In Evolving Financial Markets, Anita K. Krug

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Today's publicly offered investment funds, including mutual funds, have ever more diverse investment strategies, as they increasingly invest in financial instruments that, in earlier years, had been the province of only the most sophisticated investors. Although the new landscape of investment possibilities may substantially benefit retail investors, one financial instrument attracting increasing amounts of retail investors' assets is acutely troublesome: the commodity futures contract. Futures originated as a means for farmers and other producers of agricultural commodities to ensure that their products could be sold at reasonable prices. Early on, the goals of futures regulation centered on one particular risk …

Robots As Legal Metaphors, Ryan Calo

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This Article looks at the specific role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies that courts select for emerging technology can be outcome determinative. Privacy law scholar Professor Daniel Solove argues convincingly, for instance, that George Orwell's Big Brother metaphor has come to dominate, and in ways limit, privacy law and policy in the United States. Even at a more specific, practical level, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection she is …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

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Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …

Controlling Presidential Control, Kathryn A. Watts

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Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

On Legal Scholarship: Questions For Judge Harry T. Edwards, Ronald K.L. Collins

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The life of Judge Harry T. Edwards is one very much steeped in writing. His passion dates back at least to his years at Uniondale High School when he was the editor of the school newspaper. In the legal realm, that passion traces back to 1964 and his days on the Michigan Law Review when he published two student Notes. In the half-century since then, Judge Edwards has authored six books and more than 90 scholarly articles or essays. As a lawyer, educator, administrator, arbitrator, and now jurist, Harry Edwards has put his ideas into print concerning an array of …