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Journal Articles

2013

Discipline
Institution
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Articles 1 - 30 of 236

Full-Text Articles in Law

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner Dec 2013

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner

Journal Articles

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now ...


Standing For The Structural Constitution, Aziz Huq Nov 2013

Standing For The Structural Constitution, Aziz Huq

Journal Articles

No abstract provided.


The Psychology Of Competition: A Social Comparison Perspective, Stephen M. Garcia, Avishalom Tor, Tyrone M. Schiff Nov 2013

The Psychology Of Competition: A Social Comparison Perspective, Stephen M. Garcia, Avishalom Tor, Tyrone M. Schiff

Journal Articles

Social comparison—the tendency to self-evaluate by comparing ourselves to others—is an important source of competitive behavior. We propose a new model that distinguishes between individual and situational factors that increase social comparison and thus lead to a range of competitive attitudes and behavior. Individual factors are those that vary from person to person: the relevance of the performance dimension, the similarity of rivals, and their relationship closeness to the individual, as well as the various individual differences variables relating to social comparison more generally. Situational factors, conversely, are those factors on the social comparison landscape that affect similarly ...


Becoming A Fifth Branch, M. Todd Henderson, William A. Birdthistle Nov 2013

Becoming A Fifth Branch, M. Todd Henderson, William A. Birdthistle

Journal Articles

No abstract provided.


Patent Invalidity Versus Noninfringement, Roger Ford Nov 2013

Patent Invalidity Versus Noninfringement, Roger Ford

Journal Articles

No abstract provided.


Recent Developments In Hydraulic Fracturing Regulation And Litigation, Keith B. Hall Oct 2013

Recent Developments In Hydraulic Fracturing Regulation And Litigation, Keith B. Hall

Journal Articles

No abstract provided.


Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll Oct 2013

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Journal Articles

The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S.


Trademark Morality, Mark Bartholomew Oct 2013

Trademark Morality, Mark Bartholomew

Journal Articles

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad ...


Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood Oct 2013

Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood

Journal Articles

No abstract provided.


Beyond Insolvency, Vincent Buccola Oct 2013

Beyond Insolvency, Vincent Buccola

Journal Articles

No abstract provided.


The Boundaries Of The Moral (And Legal) Community, Brian Leiter Sep 2013

The Boundaries Of The Moral (And Legal) Community, Brian Leiter

Journal Articles

No abstract provided.


Is It Time For Real Reform: Nysba's 20 Years Of Examining The Bar Exam, Mary A. Lynch, Kim Diana Connolly Sep 2013

Is It Time For Real Reform: Nysba's 20 Years Of Examining The Bar Exam, Mary A. Lynch, Kim Diana Connolly

Journal Articles

No abstract provided.


The Tpp And The Rcep (Asean+6) As Potential Paths Toward Deeper Asian Economic Integration, Meredith Kolsky Lewis Sep 2013

The Tpp And The Rcep (Asean+6) As Potential Paths Toward Deeper Asian Economic Integration, Meredith Kolsky Lewis

Journal Articles

Facing the trend of globalization, voices within Asia have been calling for deeper Asian integration. In the international economic context, numerous competing visions have been proffered over the years as to what form that integration should take, and which country or countries should lead that process. Amongst these various possible forms of integration, the Trans-Pacific Partnership has emerged as a contender to expand into a Free Trade Agreement of the Asia-Pacific. Unlike any models proposed previously, the TPP includes the United States, but at present does not include China. In turn, the momentum of the TPP appears to have spurred ...


Advertisements Impact The Physiological Efficacy Of A Branded Drug, Emir Kamenica, Robert Naclerio, Anup Malani Aug 2013

Advertisements Impact The Physiological Efficacy Of A Branded Drug, Emir Kamenica, Robert Naclerio, Anup Malani

Journal Articles

No abstract provided.


Mock Trials And Real Justices And Judges, Richard A. Posner Aug 2013

Mock Trials And Real Justices And Judges, Richard A. Posner

Journal Articles

No abstract provided.


Plurilateral Trade Negotiations: Supplanting Or Supplementing The Multilateral Trading System?, Meredith Kolsky Lewis Jul 2013

Plurilateral Trade Negotiations: Supplanting Or Supplementing The Multilateral Trading System?, Meredith Kolsky Lewis

Journal Articles

No abstract provided.


Lock-Up Creep, Christina M. Sautter, Steven M. Davidoff Jul 2013

Lock-Up Creep, Christina M. Sautter, Steven M. Davidoff

Journal Articles

The article discusses a reported increase in the number of merger agreement lock-ups that have occurred as of June 2013, focusing on the causes of lock-up creep and its potential impact on the takeover market. It states that lock-up creep is a phrase that is used to describe a rise in the number and type of merger agreement contractual devices that buyers and sellers negotiate in an acquisition agreement. Attorney negotiations, bidders, and various legal cases are examined.


Constitutional Privileging, Michael Coenen Jun 2013

Constitutional Privileging, Michael Coenen

Journal Articles

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment — in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more easily ...


From Citizen Suits To Conservation Easements: The Increasing Private Role In Public Permit Enforcement, Jessica Owley Jun 2013

From Citizen Suits To Conservation Easements: The Increasing Private Role In Public Permit Enforcement, Jessica Owley

Journal Articles

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the ...


We The People, They The People, And The Puzzle Of Democratic Constitutionalism, David A. Strauss Jun 2013

We The People, They The People, And The Puzzle Of Democratic Constitutionalism, David A. Strauss

Journal Articles

No abstract provided.


The Priority Of Persons Revisited, John Finnis Jun 2013

The Priority Of Persons Revisited, John Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood ...


Happiness Institutions, Jennifer Nou Jun 2013

Happiness Institutions, Jennifer Nou

Journal Articles

No abstract provided.


The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein May 2013

The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein

Journal Articles

No abstract provided.


Toward A Positive Theory Of Privacy Law, Lior Strahilevitz May 2013

Toward A Positive Theory Of Privacy Law, Lior Strahilevitz

Journal Articles

No abstract provided.


Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco May 2013

Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Journal 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 ...


Agency Self-Insulation Under Presidential Review, Jennifer Nou May 2013

Agency Self-Insulation Under Presidential Review, Jennifer Nou

Journal 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 ...


Authority To Proscribe And Punish International Crimes, Guyora Binder Apr 2013

Authority To Proscribe And Punish International Crimes, Guyora Binder

Journal Articles

Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow ...


Rethinking Sustainability To Meet The Climate Change Challenge, Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, Alexandra R. Harrington, David M. Driesen, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, Jona M. Roesler Apr 2013

Rethinking Sustainability To Meet The Climate Change Challenge, Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, Alexandra R. Harrington, David M. Driesen, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, Jona M. Roesler

Journal Articles

This article presents a preliminary effort to capture the dialogue at the Environmental Law Collaborative’s inaugural Workshop. Attendees engaged in the re-conceptualization of sustainability in the age of climate change, premised on evidence that climate change is forcing changes in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social ...


The Problem Of Resource Access, Lee Anne Fennell Apr 2013

The Problem Of Resource Access, Lee Anne Fennell

Journal 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 ...


Not Unwritten, After All? (Reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents And Principles We Live By (2012)), David A. Strauss Apr 2013

Not Unwritten, After All? (Reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents And Principles We Live By (2012)), David A. Strauss

Journal Articles

No abstract provided.