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Articles 1 - 30 of 70
Full-Text Articles in Law
Trustee Liability For Breach Of Trust—Loss Or Profit, Or Loss And Profit?, Kenneth F. Joyce
Trustee Liability For Breach Of Trust—Loss Or Profit, Or Loss And Profit?, Kenneth F. Joyce
Journal Articles
No abstract provided.
Nof Kdumim: Remaking The Ancient Landscape In East Jerusalem’S National Parks, Irus Braverman
Nof Kdumim: Remaking The Ancient Landscape In East Jerusalem’S National Parks, Irus Braverman
Journal Articles
This article explores two national parks in East Jerusalem and their legal administration as the focus of contradictory and complementary attempts at preservation, colonization, and normalization. Drawing on in-depth interviews with, and observations of, officials from the Israel Nature and Parks Authority and others, I expose the Judaizing of the landscape in Jerusalem. Nature never stands for itself; it is always an echo of a human presence and, in this case, of a Jewish past and its modern reunion. The project of imagining the natural landscape as one that embodies an ancient past—what Israeli officials have referred to in our …
The Words Of Comparative Law, Olivier Moréteau
The Words Of Comparative Law, Olivier Moréteau
Journal Articles
While the word "comparative" refers to a cognitive and intellectual activity supposing that there are several elements to compare, the word "law" is used in the singular, as if law was to be compared to itself The whole phrase indicates that comparison takes place within the study of the law, but the use of the singular does not point to a pluralistic approach: what do we mean by law? Should we not talk about "comparing the laws" or "legal comparison"? With a reflection on the words of the law as a starting point, this paper visits the corpus of comparative …
Legal Inconsistencies, Raff Donelson
The Law And Economics Of Redistribution, Matthew Dimick
The Law And Economics Of Redistribution, Matthew Dimick
Journal Articles
Should legal rules be used to redistribute income? Or should income taxation be the exclusive means for reducing income inequality? This article reviews the legal scholarship on this question. First, it traces how the most widely cited argument in favor of using taxes exclusively--Kaplow & Shavell's (1994) double-distortion argument--evolved from previous debates about whether legal rules could even be redistributive and whether law and economics should be concerned exclusively with efficiency or with distribution as well. Next, it surveys the responses to the double-distortion argument. These responses appear to have had only limited success in challenging the sturdy reputation of …
Porous Bureaucracy: Legitimating The Administrative State In Taiwan, Anya Bernstein
Porous Bureaucracy: Legitimating The Administrative State In Taiwan, Anya Bernstein
Journal Articles
Scholars and politicians have sometimes presented bureaucracy as inherently conflicting with democracy. Notably, bureaucrats themselves are rarely consulted about that relationship. In contrast, I draw on interviews and participant observation to illuminate how government administrators understand their own place in democratic government in Taiwan, one of the few successful third-wave democracies. The administrators I work with root their own legitimacy not in separated powers or autonomous expertise, but in their ongoing collaboration with legislators and publics. They define their own accountability not just as executive legislative mandates but as producing them in the first place, and figure bureaucracy as a …
The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten
The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten
Journal Articles
Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.
Derecho Penal Sustantivo, Luis E. Chiesa
An Empirical Examination Of Agency Statutory Interpretation, Amy Semet
An Empirical Examination Of Agency Statutory Interpretation, Amy Semet
Journal Articles
How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over …
The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen
The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen
Journal Articles
No abstract provided.
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
Journal Articles
This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …
Why Didn't The Common Law Follow The Flag?, Christian Burset
Why Didn't The Common Law Follow The Flag?, Christian Burset
Journal Articles
This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …
Legal Consciousness Reconsidered, Lynette J. Chua, David M. Engel
Legal Consciousness Reconsidered, Lynette J. Chua, David M. Engel
Journal Articles
Legal consciousness is a vibrant research field attracting growing numbers of scholars worldwide. Yet differing assumptions about aims and methods have generated vigorous debate, typically resulting from a failure to recognize that three different clusters of scholars—identified here as the Identity, Hegemony, and Mobilization schools—are pursuing different goals and deploying the concept of legal consciousness in different ways. Scholarship associated with these three schools demonstrates that legal consciousness is actually a flexible paradigm with multiple applications rather than a monolithic approach.Furthermore, a new generation of scholars has energized the field in recent years, focusing on marginalized peoples and non-Western settings. …
Why Police Should Protect Complainant Autonomy, Randall K. Johnson
Why Police Should Protect Complainant Autonomy, Randall K. Johnson
Journal Articles
Abstract: This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. administrative agencies may employ to make more informed policy decisions. The Article does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Article identifies the causes of police complaint inefficiencies by critically assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by …
The Structure Of Torts, Thomas C. Galligan Jr.
The Structure Of Torts, Thomas C. Galligan Jr.
Journal Articles
Tort law consists of a number of different causes of action which are seemingly unrelated except that all involve civil wrongs, other than mere breaches of contract. The various torts have different elements; some, like the nominate or intentional torts, very specific; others, like negligence, more general and vague. There is no apparent, coherent, or consistent structure applicable to all torts. This Article articulates just such a unified structure for all torts: one that arises out of and is based upon the elements of negligence. All torts involve the judicial delineation of the defendant's duty or legal obligation. All torts …
Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor
Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor
Journal Articles
A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far …
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Journal Articles
Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …
The Impact Of Epic Systems In The Labor And Employment Context, Lise Gelernter
The Impact Of Epic Systems In The Labor And Employment Context, Lise Gelernter
Journal Articles
In Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court ruled that an employer did not violate the National Labor Relations Act (NLRA) when it required employees to agree to arbitrate all claims against the employer and also waive their rights to bring a class or collective action against the employer. The Court reasoned that class or collective actions were not the type of "concerted activities for the purpose of collective bargaining or other mutual aid or protection” that Section 7 of the NLRA protects. This comment, part of a three-part discussion on the impact …
The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis
The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis
Journal Articles
No abstract provided.
Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet
Journal Articles
Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent …
Why Police Should Protect Complainant Autonomy, Randall K. Johnson
Why Police Should Protect Complainant Autonomy, Randall K. Johnson
Journal Articles
This Article describes a simple way to limit the high cost of police misconduct, which is informed by background principles from U.S. civil procedure. It does so by calling for the Chicago Police Department (CPD) to better protect the complainant autonomy of injured citizens under the scaled-down process that is used to resolve certain legal claims against officers. Complainant autonomy is an injured citizen’s right to control how its claims are drafted and framed, even over the objection of a nominal plaintiff, regardless of whether such a right to do so is clearly established or not.
Why Mississippi Should Reform Its Penal Code, Judith J. Johnson
Why Mississippi Should Reform Its Penal Code, Judith J. Johnson
Journal Articles
The Mississippi Penal Code was determined at the turn of this century to be the fifty-second-worst penal code in the United States. As much as Mississippi is often used to being-and is even proudly defiant for being-ranked low on national scales, this is an issue about which we should be deeply concerned. A well-drafted penal code is crucial because it is at the core of the primary value of justice. While we are experienced with being ranked last in many situations, often unfairly, the criticism of the Mississippi Penal Code is accurate. Although many of the cited defects are ameliorated …
Called To Serve: Elevating Human-Performed Caregiver And Volunteer Work In An Era Of Ai-Robotic Technologies, Hilary G. Escajeda
Called To Serve: Elevating Human-Performed Caregiver And Volunteer Work In An Era Of Ai-Robotic Technologies, Hilary G. Escajeda
Journal Articles
Although the status quo of the traditional female caregiver has managed to muddle forward, it may begin to unwind as increasingly capable technologies dislodge humans from full-time employment and compel a redefinition of valuable work. Given this backdrop, this Essay seeks to open a dialogue for developing thoughtful, modem tax policies. Part I outlines the vocational endeavors of historically female community members who serve as caregivers and social volunteers. Next, Part II summarizes the economic value of volunteer and caregiver services. Part III examines whether tax policies should adopt a more expansive definition of beneficial occupations, as artificial intelligence (AI) …
Show Me The Money: An Empirical Analysis Of Interest Group Opposition To Federal Courts Of Appeals Nominees, Donald E. Campbell, Marcus Hendershot
Show Me The Money: An Empirical Analysis Of Interest Group Opposition To Federal Courts Of Appeals Nominees, Donald E. Campbell, Marcus Hendershot
Journal Articles
Contemporary views of the federal judicial appointment process are grounded in themes of obstruction and gridlock. Within this environment, interest groups find fertile ground to target, and sometimes successfully oppose, judicial nominees that once automatically moved through the appointment process and ended in confirmation. While interest group involvement and influence is an accepted fact, much less is known about the efficacy of these groups in carrying out their objective of correctly identifying ideological outlier nominees. This article asks the question: Do interest groups correctly identify and target nominees who are ideological outliers? The article implements a research design that evaluates …
Undoing A Deal With The Devil: Some Challenges For Congress's Proposed Reform Of Insider Trading Plans, John P. Anderson
Undoing A Deal With The Devil: Some Challenges For Congress's Proposed Reform Of Insider Trading Plans, John P. Anderson
Journal Articles
The adoption of Rule 10b5-1 was, in a manner of speaking, a deal with the devil that the SEC and some lawmakers now appear to regret having made. The problem is that, as is often the case with such a deal, it cannot be easily undone. I identify challenges presented by the restrictions on Trading Plan use that Congress has proposed in the Corporate Insiders Act. In light of these challenges, I argue that effective Trading Plan reform cannot be accomplished by simply restricting the use of Trading Plans while leaving Rule 10b5-1(b)'s awareness test in place. If there is …
Environmental Law. Disrupted, Inara Scott, David Takacs, Rebecca Bratspies, Vanessa Casado Pérez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan
Environmental Law. Disrupted, Inara Scott, David Takacs, Rebecca Bratspies, Vanessa Casado Pérez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan
Journal Articles
No abstract provided.
Reframing Radical Religion, Vanita Saleema Snow
Reframing Radical Religion, Vanita Saleema Snow
Journal Articles
Like a thief in the night,1 politicians have stolen religion for their deceptive vices, using the term “radicalization” or “terrorism” to meet their needs.2 See Sahar F. Aziz, Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America, 47 GONZ. L. REV. 429, 481 (2012) (discussing how a police report equates “Muslim religiosity with radicalization toward terrorism”); David A. Bosworth, American Crusade: The Religious Roots of the War on Terror, 7 BARRY L. REV. 65, 65 (2006) (noting that American news and popular culture often portray religious people as “narrow-minded bigots out to destroy everything good and decent”); Ned …
In The Room Where It Happens: Including The "Public's Will" In Judicial Review Of Agency Action, Twinette L. Johnson
In The Room Where It Happens: Including The "Public's Will" In Judicial Review Of Agency Action, Twinette L. Johnson
Journal Articles
In the context of higher education reform, the people need to be in the important rooms where the decisions are being made. One such room is the courtroom. This essay elaborates on this premise, previously written about in an article I wrote entitled, 50,000 Voices Can’t Be Wrong, But Courts Might Be: How Chevron’s Existence Contributes to Retrenching the Higher Education Act. That article was the second in a series of three articles on the retrenchment of the Higher Education Act of 1965 (“HEA”) using the William Eskridge and John Ferejohn statutory entrenchment model.
Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster
Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster
Journal Articles
Despite worsening climate change threats, investment in energy — in the United States and globally — is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.
The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump …
Dual Regulation Of Insurance, Christopher French
Dual Regulation Of Insurance, Christopher French
Journal Articles
Since this country was created, the insurance industry has been principally regulated by the states with infrequent Congressional interventions. As the insurance industry has evolved in recent decades, however, individual states have become unable to adequately regulate some insurers, such as multinational insurers and foreign insurers, because they lack jurisdiction over such entities. Simply having the federal government assume responsibility for regulating insurers will not solve the current regulatory problems, however, because Congress’ past forays into regulating certain areas of insurance generally have yielded poor results. Consequently, this Article makes the novel proposal and argument that, with the creation of …