Law Commons^™

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 situated individuals: …

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. …

Statutes In Common Law Courts, Jeffrey Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …

Carolene Products And Constitutional Structure, Barry Cushman

Journal Articles

Justice Harlan Fiske Stone's majority opinion in United States v. Carolene Products Co. is well-known for its statement of two principles. The first is that regulatory legislation affecting ordinary commercial transactions is to be afforded a strong presumption of constitutionality. The second principle, articulated in the famous Footnote Four, qualifies the first: such a strong presumption of constitutionality is not warranted when legislation appears on its face to violate a provision of the Bill of Rights, or restricts ordinary political processes, or is directed at discrete and insular minorities. At the time the decision was announced, however, the decision in …

Court-Packing And Compromise, Barry Cushman

Journal Articles

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than …

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Journal Articles

The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s …

Foreclosure Echo: How Abandoned Foreclosures Are Re-Entering The Market Through Debt Buyers, Judy Fox

Journal Articles

It is common knowledge that mortgage defaults increased steadily from 2006 through 2011. In some situations, lenders moved swiftly after default to foreclose the property; but for other homeowners the foreclosure process began and then stalled or was completely abandoned by the lender. The result of these abandoned foreclosures has been devastating to cities and consumers throughout the country. This article explores what is happening to homeowners caught up in the strange world of bank walkaways as the economy is beginning to improve. This second wave of collection activity, an echo of the original foreclosure crisis, could easily throw thousands …

Good Faith And Narrow Tailoring In Fisher, Jennifer Mason Mcaward

Journal Articles

This piece considers three issues relating to the Supreme Court’s upcoming decision in Fisher v. University of Texas: First, how should the Court perform the narrow tailoring inquiry? Is any deference due the University with respect to its choice of means by which it seeks to diversify its class? Second, how should the relatively modest impact of the university’s racial preference impact the Court’s assessment of narrow tailoring? Third, what is the constitutional relevance of Texas’s Top Ten Percent Program? Does the relative success of the program make it a workable race-neutral alternative that constitutionally precludes the school from adding …

A Room Of One's Own? Accessory Dwelling Unit Reforms And Local Parochialism, Margaret F. Brinig, Nicole Stelle Garnett

Journal Articles

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. …

General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia

Journal Articles

Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …

How Did Rggi Do It? Political Economy And Emissions Auctions, Bruce R. Huber

Journal Articles

Among the major emissions trading schemes in operation around the world, the Regional Greenhouse Gas Initiative (RGGI) stands alone: this CO₂ cap-and-trade program among nine northeastern states is the only such scheme to rely primarily on auctions to distribute emissions allowances. The standard practice - distributing allowances for free on the basis of historical emissions - elicits begrudging but politically crucial support from some regulated emitters. Like carbon taxation, allowance auctioning has long been considered economically superior to its alternatives but politically infeasible.

How did the RGGI states manage to defy conventional wisdom and institute a program so reliant …

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Journal Articles

Constitutional precedents give rise to a jurisprudential tug-of-war. On one side is the value of adhering to precedent and allowing the law to remain settled. On the other side is the value of departing from precedent and allowing the law to improve. In this Article, I contend that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method. My aim is to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation. I seek to demonstrate that although certain consequences of deviating from precedent can be studied …

A Response To Harel, Hope, And Schwartz, John Finnis

Journal Articles

A seminar held in the Hebrew University of Jerusalem in December 2012 discussed critical comments by Alon Harel, Simon Hope, and Daniel Schwartz on themes and theses in Human Rights and Common Good, volume III of Collected Essays of John Finnis (Oxford University Press, 2011). Revised versions of these comments, and of the response I gave at this seminar, are now published in the Jerusalem Review of Legal Studies. The Response retains the informal and engaged character of this very good academic occasion. Section I considers Harel’s thesis that judicial review of legislation can be defended because my “in-authenticity” …

Overcoming Overcriminalization, Stephen Smith

Journal Articles

The literature treats overcriminalization (and, at the federal level, the federalization of crime) as a quantitative problem. Legislatures, on this view, have simply enacted too many crimes, and those crimes are far too broad in scope. This Article uses federal criminal law as a basis for challenging this way of conceptualizing the overcriminalization problem. The real problem with overcriminalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of overcriminalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken …

Precedent And Reliance, Randy J. Kozel

Journal Articles

Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against adjudicative change. Yet there remains a fundamental question as to why reliance on precedent warrants judicial protection in the first place.

This Article explores the dynamics and implications of precedential reliance. It contends that the case for protecting reliance on precedent is uncertain. There are several reasons why reliance might potentially be worth protecting, but all are subject to serious limitations or challenges. To bolster the …

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Journal Articles

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not …

Superiority As Unity, Jay Tidmarsh

Journal Articles

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve …

The Federal Reserve's Supporting Role Behind Dodd-Frank's Clearinghouse Reforms, Colleen M. Baker

Journal Articles

This Article analyzes the Federal Reserve’s expanded role in payment, clearing, and settlement systems, particularly in connection with certain clearinghouses that have been designated by the newly created Financial Stability Oversight Council as “systemically significant.” The Federal Reserve’s expanded role is a little understood, but critical supporting component of domestic and international regulatory reforms to the $639 trillion over-the-counter (OTC) derivative markets. These reforms mandate the increased use of clearinghouses in OTC derivative markets. Due to critical reforms in Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Federal Reserve is now positioned to …

Living In Cafa's World, Jay Tidmarsh

Journal Articles

This Article, prepared for a conference on the Class Action Fairness Act, examines the effect of CAFA on our understanding about the benefits and drawbacks of class actions. The Article describes the vision of class actions that imbues CAFA, and demonstrates how many subsequent developments in the law of class actions — including the Supreme Court’s decisions in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Shady Grove Orthopedics v. Allstate Insurance — have advanced CAFA’s restrictive vision about the role of class actions in modern American litigation. The Article demonstrates that competing visions about the role of class actions …

Mcculloch And The Thirteenth Amendment, Jennifer Mason Mcaward

Journal Articles

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch v. Maryland’s explication of Congress’s executory powers, and holds that Congress has substantial, and largely unreviewable, power to determine both the ends and the means of Section 2 legislation. This Essay argues that the conventional view departs from the original meaning of Section 2. It demonstrates that McCulloch preserved a role for judicial review with respect to both the ends and means of federal …

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …

Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark Mckenna

Journal Articles

This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.

The Convergence Of International Trade And Investment Arbitration, Roger P. Alford

Journal Articles

The World Trade Organization (“WTO”) and bilateral investment treaties (“BITs”) are among the most significant legal developments in the history of international economic law. Never before in the history of international relations has trade and investment been supported by such powerful legal guarantees and adjudicative processes. In less than two decades the WTO and BITs have permanently altered the legal landscape with reciprocal and mutually advantageous arrangements designed to reduce barriers to trade and investment and eliminate discriminatory treatment in international economic relations. In most respects the worlds of trade and investment are on parallel tracks headed in the same …

A Continuum In Remedies: Reconnecting Vacant Houses To The Market, James J. Kelly Jr.

Journal Articles

For decades, America’s older, undercrowded cities have struggled with neighborhoods beset by vacant houses that seemingly have no connection with a functioning real estate market. A nationwide foreclosure crisis has brought even greater attention to the need for inner-city communities to address vacant house nuisances. This paper argues that recent developments in property theory help us understand and complete reforms of legal remedies that address this continuing national need.

Traditional, in personam code enforcement remedies emanate from a legal understanding of real estate ownership as the strongest of property-rule-protected entitlements. Local government authorities hold owners directly accountable for any failures …

Sharing The Wealth, James J. Kelly Jr.

Journal Articles

This review of the textbook, "Community Economic Development Law" (Aspen 2013), written by Susan Bennett, Brenda Bratton Blom, Louise Howells and Deborah Kenn, appeared in the Vol. 22, No.1 issue of the Journal of Affordable Housing and Community Economic Development Law.

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brinig, Linda C. Mcclain

Journal Articles

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be …

Progress And Competition In Design, Mark Mckenna, Katherine J. Strandburg

Journal Articles

This Article argues that applying patent-like doctrine to design makes sense only if a design patent system is premised on a patent-like conception of cumulative progress that permits patent examiners and courts to assess whether a novel design reflects a nonobvious step beyond the prior art. If there is a meaningful way to speak of such an inventive step in design, then design patent doctrine should be based on that conception. If nonobviousness has no sensible meaning in design, then a patent system cannot work for design. At present, design patent doctrine is in disarray because it is unmoored from …

The Federal Reserve’S Use Of International Swap Lines, Colleen Baker

Journal Articles

This Article focuses on the U.S. Federal Reserve's controversial practice of loaning U.S. dollars to foreign central banks, which the foreign central banks then turn around and loan to institutions in their jurisdictions. The Federal Reserve does not know the identity of these recipient institutions. Nevertheless, these loans-termed "swap lines"-provide foreign financial institutions the type of financial stability that the U.S. Federal Reserve was created to provide for U.S. banks during times of crises. During the financial crisis, the U.S. Federal Reserve arranged swap lines with 14 foreign central banks for a total amount of $583 billion, making it the …

Green Harms Of Green Projects, John C. Nagle

Journal Articles

This article describes the recent development of renewable energy to examine environmental law’s three contrasting approaches to the green harms of green projects. Sometimes the law allows the green benefit regardless of the green harm. Sometimes the law prohibits the green harm regardless of the green benefit. And sometimes the law allows a balancing of all of the harms and benefits, green or not. Given these options, I argue that the law should not ignore or understate green harms even if they are caused by green projects. There are some types of green harms that no benefit can justify. But …

The Confident Court, Jennifer Mason Mcaward

Journal Articles

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …