Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Intellectual Property Law (4)
- International Law (4)
- Constitutional Law (3)
- Jurisprudence (3)
- Law and Economics (3)
-
- Natural Law (3)
- Antitrust and Trade Regulation (2)
- Education Law (2)
- Entertainment, Arts, and Sports Law (2)
- Family Law (2)
- Human Rights Law (2)
- Legal Ethics and Professional Responsibility (2)
- Banking and Finance Law (1)
- Business Organizations Law (1)
- Civil Rights and Discrimination (1)
- Courts (1)
- Criminal Law (1)
- Criminal Procedure (1)
- Estates and Trusts (1)
- First Amendment (1)
- Jurisdiction (1)
- Labor and Employment Law (1)
- Land Use Law (1)
- Law and Politics (1)
- Legal Education (1)
- Legal History (1)
- Marketing Law (1)
- National Security Law (1)
- Organizations Law (1)
- Keyword
-
- Hughes Court (3)
- New Deal (3)
- Catholic schools (2)
- Charter schools (2)
- Crime (2)
-
- Education (2)
- School choice (2)
- Standards (2)
- Abuse (1)
- Affordable Care Act (1)
- Affordable Housing (1)
- Ambassador (1)
- Antitrust (1)
- Arthur Soden (1)
- Article I (1)
- Article II (1)
- Article III (1)
- Aspiration (1)
- Badges and incidents of slavery (1)
- Barack Obama (1)
- Baseball (1)
- Baseball reserve system (1)
- Belmont (1)
- Brown (1)
- Capture (1)
- Catholic church (1)
- Central bank (1)
- Central counterparty (1)
- Charitable (1)
- Charles Evans Hughes (1)
Articles 1 - 30 of 38
Full-Text Articles in Law
The Man On The Flying Trapeze, Barry Cushman
The Man On The Flying Trapeze, Barry Cushman
Journal Articles
Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression. The third …
Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia
Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia
Journal Articles
WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.
The lessons of the Pentagon Papers case for WikiLeaks, however, are …
Justice Antonin Scalia And The Long Game, William K. Kelley
Justice Antonin Scalia And The Long Game, William K. Kelley
Journal Articles
This essay is a brief assessment of Justice Antonin Scalia's impact on the work of the Supreme Court over the last 25 years. Justice Scalia's appointment was marked by predictions that he would use his personality to help persuade his colleagues to his doctrinal views, much as Justice William Brennan had reportedly been able to do, Instead, Justice Scalia pursued what the essay calls a jurisprudential long game, emphasizing theory -- both in his devotion to textualism in the statutory arena, and originalism in constitutional law -- instead of coalition-building on a case by case basis. By doing so, he …
The Limits Of The New Deal Analogy, Barry Cushman
The Limits Of The New Deal Analogy, Barry Cushman
Journal Articles
The past three years of the Obama Administration inevitably have elicited comparisons between the present day and the era of President Franklin D. Roosevelt’s New Deal. While frequently illuminating, such comparisons often overlook an important point that many may have forgotten: compared with the major reform initiatives undertaken during President Obama’s tenure, a review of the roll call votes reveals that the measures enacted by the New Deal Congresses enjoyed a remarkable degree of bipartisan support. In addition, the Democrats enjoyed large majorities in the House of Representatives from 1933 forward, and a filibuster-proof majority in the Senate after 1934. …
When Things Go Wrong In The Clinic: How To Prevent And Respond To Serious Student Misconduct, Robert Jones, Gerard F. Glynn, John J. Francis
When Things Go Wrong In The Clinic: How To Prevent And Respond To Serious Student Misconduct, Robert Jones, Gerard F. Glynn, John J. Francis
Journal Articles
This article documents the types of misconduct that students commit, explores why serious misconduct occurs, examines whether such conduct can be anticipated and reduced by prescreening and monitoring potentially problematic students, and suggests how misconduct might be addressed once it occurs. The authors' analysis thus encompasses both legal obligations and pedagogical considerations, and it takes account of the differing perspectives of clinical professors, law school administrators, and bar examiners. The authors operate from a "student centered" perspective that emphasizes the support and development of law students. This article is prescriptive, therefore, in the extent to which it emphasizes preventive actions …
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
Journal Articles
The extra-territorial reach of the antitrust laws is subject to multiple constraints, including the Commerce Clause of the constitution, the text of the antitrust statutes, and a variety of policy considerations. At the beginning of the twentieth century, in the American Banana case, the Supreme Court severely limited the application of the antitrust laws to anti-competitive behavior beyond our shores. The next eighty years saw an expansion of their extra-territorial reach, by including within their coverage a range of foreign conduct which had domestic effects. However, confusion among the lower courts as to the extent of this coverage, as well …
The Rule Of Law And The Perils Of Precedent, Randy J. Kozel
The Rule Of Law And The Perils Of Precedent, Randy J. Kozel
Journal Articles
In this Essay, I wish to build on Professor Waldron's thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive …
Explaining Abuse Of The Disabled Child, Margaret F. Brinig
Explaining Abuse Of The Disabled Child, Margaret F. Brinig
Journal Articles
This article discusses abuse of disabled children in terms of two competing theories for why it may occur. The evolutionary biology theory has been discussed in the legal literature as well as in biological and social science pieces. The author contrasts this theory with a novel one, mimetic desire, which may be less familiar in legal circles, but which, he believes, better explains the abuse of Attention Deficit Hyperactive Disorder children and offers more hope for preventing abuse without disrupting intact families. While the evolutionary biology explanations for child abuse may be helpful and important, more territory can be covered …
The People Paradox, Nicole Stelle Garnett
The People Paradox, Nicole Stelle Garnett
Journal Articles
U.S. land-use regulators are increasingly embracing mixed-land-use “urban” neighborhoods, rather than single-land-use “suburban” ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-land-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land use generates, rather than suppress, crime and disorder, and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use …
The Hughes-Roberts Visit, Barry Cushman
The Hughes-Roberts Visit, Barry Cushman
Journal Articles
In the 1936 case of Morehead v. New York ex rel. Tipaldo, Justice Owen Roberts voted to invalidate New York’s minimum wage law for women. The following spring, Roberts joined the majority in upholding Washington State’s minimum wage statute. How best to account for this “switch” is a central preoccupation of New Deal constitutional history. In recent years, a number of scholars have called attention to a visit that Chief Justice Charles Evans Hughes and his wife made to Roberts’ Pennsylvania farm in the summer of 1936, in the wake of the public firestorm following the announcement of the Tipaldo …
Pcaob And The Persistence Of The Removal Puzzle, Patricia L. Bellia
Pcaob And The Persistence Of The Removal Puzzle, Patricia L. Bellia
Journal Articles
In Free Enterprise Fund v. Public Company Accounting Oversight Board ("PCAOB"), the Supreme Court invalidated a statutory provision protecting the tenure of members of the PCAOB, a board created to oversee the auditing of public companies subject to the securities laws. The case carried the potential for a major shift in the Court's approach to separation of powers disputes. Although the Court delivered no such result, the PCAOB case provides a fascinating window on the removal puzzle. The case reflects an entanglement of multiple textually derived and nontextual separation of powers principles. One of the central principles on which the …
The Catholic Church, Human Rights, And Democracy: Convergence And Conflict With The Modern State, Paolo G. Carozza, Daniel Philpott
The Catholic Church, Human Rights, And Democracy: Convergence And Conflict With The Modern State, Paolo G. Carozza, Daniel Philpott
Journal Articles
This book chapter traces the history of the Catholic Church's relationship to the modern state, focusing on the idea of sovereignty and the development of human rights and democracy. It argues that the Catholic Church's relationship to human rights and democracy in the modern world can only be understood as reflective of both a historical convergence and a persistent tension and ambivalence. The first part argues for this dual theme in the development of Catholic doctrine, where today, as over the past several centuries, the Church's conception of the common good yields both an embrace of human rights and democracy …
What Is Agression?: Comparing The Jus Ad Bellum And The Icc Statute, Mary Ellen O'Connell, Mirakmal Niyazmatov
What Is Agression?: Comparing The Jus Ad Bellum And The Icc Statute, Mary Ellen O'Connell, Mirakmal Niyazmatov
Journal Articles
Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into …
Inclusionary Housing On A Global Basis, James J. Kelly Jr.
Inclusionary Housing On A Global Basis, James J. Kelly Jr.
Journal Articles
This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices …
The Role Of Aspiration In Corporate Fiduciary Duties, Julian Velasco
The Role Of Aspiration In Corporate Fiduciary Duties, Julian Velasco
Journal Articles
Corporate law is characterized by a pervasive divergence between standards of conduct and standards of review. Courts often opine on the relatively demanding standard of conduct, but their judgements must be based on the more forgiving standard of review. Commentators defend this state of affairs by insisting that it provides guidance to directors without imposing ruinous liability. However, the dichotomy can lead many, especially those who focus on the bottom line, to call into question the meaningfulness of standards of conduct. Of particular concern is the increasing popularity, in legal and scholarly circles, of the notion that fiduciary duty standards …
Are Charters Enough Choice? School Choice And The Future Of Catholic Schools, Nicole Stelle Garnett
Are Charters Enough Choice? School Choice And The Future Of Catholic Schools, Nicole Stelle Garnett
Journal Articles
An essay is presented on Catholic and charter schools and the closing of such schools in the U.S. The academic performance, parental involvement and the after-school religious education targeted for charter school students is discussed. The connections between the Catholic and charter schools and the legal issues governing conversion to charter schools is also discussed along with the concerns in the urban community due the closure of Catholic schools.
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Journal Articles
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark
The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark
Journal Articles
Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …
Arthur Soden's Legacy: The Origins And Early History Of Baseball's Reserve System, Edmund P. Edmonds
Arthur Soden's Legacy: The Origins And Early History Of Baseball's Reserve System, Edmund P. Edmonds
Journal Articles
The article focuses on the nineteenth century evolution of the U.S. baseball reserves system. It mentions that the early history of the reserve clause establishes a relationship with sports collective bargaining agreements. It notes that its basic structure stems from a dispute between Boston owner Arthur Soden and baseball players James O'Rourke and George Wright. It also emphasizes on discipline imposed to the players who abandon their contracts to seek higher salaries from a different team.
The "Independent" Sector: Fee-For-Service Charity And The Limits Of Autonomy, Lloyd Hitoshi Mayer
The "Independent" Sector: Fee-For-Service Charity And The Limits Of Autonomy, Lloyd Hitoshi Mayer
Journal Articles
Although numerous scholars have attempted to explain and justify the benefits provided to charities, none has been completely successful. Their theories share, however, two required characteristics for charities. First, charities must be distinct from other types of entities in society, including governmental bodies, businesses, other types of nonprofit organizations, and informal entities such as families. Second, charities must provide some form of public benefit. Given these defining characteristics, the principal role for the laws governing charities is to protect charities from influences that could potentially undermine these traits. This Article is the first to recognize fully the importance of this …
Managing The Urban Commons, Nicole Stelle Garnett
Managing The Urban Commons, Nicole Stelle Garnett
Journal Articles
Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a là Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by …
Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward
Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward
Journal Articles
Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy …
The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal
The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal
Journal Articles
Nearly all felony convictions - about 95 percent - follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty …
A Broken Windows Theory Of International Corruption, Roger P. Alford
A Broken Windows Theory Of International Corruption, Roger P. Alford
Journal Articles
The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.
Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.
Part III of the Article …
Catholic Schools, Charter Schools, And Urban Neighborhoods, Margaret F. Brinig, Nicole Stelle Garnett
Catholic Schools, Charter Schools, And Urban Neighborhoods, Margaret F. Brinig, Nicole Stelle Garnett
Journal Articles
This paper addresses implications for urban neighborhoods of two dramatic shifts in the American educational landscape: (1) the rapid disappearance of Catholic schools from urban neighborhoods, and (2) the rise of charter schools. In previous studies, we linked Catholic school closures to increased disorder and crime, and decreased social cohesion, in Chicago neighborhoods. This paper turns to two questions unanswered in our previous investigations. First, because we focused exclusively on school closures in our previous studies, we were uncertain whether our results reflected the work that open Catholic schools do as neighborhood institutions or whether we were finding a “loss …
Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark Mckenna
Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark Mckenna
Journal Articles
Antitrust law explicitly depends on market definition. Many issues in IP law also depend on market definition, though that definition is rarely explicit. Applying antitrust traditional market definition to IP goods leads to some startling results. Despite the received wisdom that IP rights don't necessarily confer market power, a wide array of IP rights do exactly that under traditional antitrust principles. This result requires us to rethink both the overly-rigid way we define markets in antitrust law and the competitive consequences of granting IP protection. Both antitrust and IP must begin to think realistically about those consequences, rather than falling …
Dastar's Next Stand, Mark Mckenna
Dastar's Next Stand, Mark Mckenna
Journal Articles
A series of recent cases implicate the extent to which trademark law can be used to control creative content. The possibility of using trademark law for that purpose obviously creates a potential conflict with copyright law, which ordinarily sets the rules for use of creative material developed by others. Unfortunately, despite its attraction to boundary questions in trademark law, the Supreme Court‘s Dastar decision—its lone decision demarcating trademark and copyright law—remains controversial and its scope somewhat unclear. This Essay argues that Dastar should be understood, or at least should be extended, to rule out any claims based on confusion that …
(Dys)Functionality, Mark Mckenna
(Dys)Functionality, Mark Mckenna
Journal Articles
The functionality doctrine serves a unique role in trademark law: unlike virtually every other doctrine, functionality can trump consumer confusion (or so it seems, at least in mechanical-functionality cases). In this sense, functionality may be the only doctrine in trademark law that can truly be considered a defense. But despite its potential power, the functionality doctrine is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine focuses on competitors’ right to copy unpatented features as opposed to their need to copy. And aesthetic functionality cases are even more scattered: …
Child Support Guidelines And Divorce Incentives, Margaret F. Brinig, Douglas W. Allen
Child Support Guidelines And Divorce Incentives, Margaret F. Brinig, Douglas W. Allen
Journal Articles
A child support guideline is a formula used to calculate support payments based on a few family characteristics. Guidelines began replacing court awarded support payments in the late 1970s and early 1980s, and were eventually mandated by the federal government in 1988. Two fundamentally different types of guidelines are used: percentage of obligor income, and income shares models. This paper explores the incentives to divorce under the two schemes, and uses the NLSY data set to test the key predictions. We find that percentage of obligor income models are destabilizing for some families with high incomes. This may explain why …
Nonprofits, Politics, And Privacy, Lloyd Hitoshi Mayer
Nonprofits, Politics, And Privacy, Lloyd Hitoshi Mayer
Journal Articles
The first Part of this Article briefly reviews and contrasts the history and current rules governing disclosure and privacy in the federal tax, federal tax exemption, and federal election law contexts. This review reveals that both the cost-benefit approach and the right-to-privacy approach can be found in this history, but to a greater or lesser extent depending on the context. The second Part explores these two different approaches and the extent to which the existing disclosure rules reflect those approaches. This Part shows that the rules are sometimes but not always based both on the cost-benefit approach to disclosure, in …