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Full-Text Articles in Law
Agglomerama, Lee Anne Fennell
Agglomerama, Lee Anne Fennell
Public Law and Legal Theory Working Papers
Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Sy
The Psychology Of Corporate Rights, Avital Mentovich, Aziz Huq, Moran Cerf
The Psychology Of Corporate Rights, Avital Mentovich, Aziz Huq, Moran Cerf
Public Law and Legal Theory Working Papers
Relying on the corporate personhood doctrine, the U.S. Supreme Court has increasingly expanded the scope of rights granted to corporations and other forms of collective entities. While this trend has received widespread attention in legal scholarship and
State Regulation And The Necessary And Proper Clause, William Baude
State Regulation And The Necessary And Proper Clause, William Baude
Public Law and Legal Theory Working Papers
The new marijuana federalism is here, but is it here to stay? In this Article, I address that question by way of two related points, a practical one and a technical one, and I ultimately argue that state regulation should have a bigger role in fixing the limits of federal constitutional power. The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level …
Well-Being And Public Policy, John Bronsteen, Christopher Buccafusco, Jonathan Masur
Well-Being And Public Policy, John Bronsteen, Christopher Buccafusco, Jonathan Masur
Public Law and Legal Theory Working Papers
Governments rely on certain basic economic metrics and tools to analyze prospective laws and policies and to monitor how well their countries are doing. For decades, critics of such economic measures have argued that they ignore important aspects of value
Sharing The Necessary And Proper Clause, William Baude
Sharing The Necessary And Proper Clause, William Baude
Public Law and Legal Theory Working Papers
Few constitutional clauses have been the focus of so many hopes and fears as the Necessary and Proper Clause. In his Foreword, Professor John Manning puts forward a powerful vision of the clause, challenging the current approach of the Supreme Court. F
The Paradoxes Of Public Philosophy, Brian Leiter
The Paradoxes Of Public Philosophy, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg
[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
Fairness In Law And Economics: Introduction, Lee Anne Fennell, Richard H. Mcadams
Fairness In Law And Economics: Introduction, Lee Anne Fennell, Richard H. Mcadams
Public Law and Legal Theory Working Papers
No abstract provided.
Aligning Campaign Finance Law, Nicholas Stephanopoulos
Aligning Campaign Finance Law, Nicholas Stephanopoulos
Public Law and Legal Theory Working Papers
Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found. This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy …
Partisan Gerrymandering And The Efficiency Gap, Nicholas Stephanopoulos, Eric Mcghee
Partisan Gerrymandering And The Efficiency Gap, Nicholas Stephanopoulos, Eric Mcghee
Public Law and Legal Theory Working Papers
The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could …
Valuable Lies, Ariel Porat, Omri Yadlin
Valuable Lies, Ariel Porat, Omri Yadlin
Public Law and Legal Theory Working Papers
Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead …
The Discovery Sombrero, And Other Metaphors For Litigation, William Hubbard
The Discovery Sombrero, And Other Metaphors For Litigation, William Hubbard
Public Law and Legal Theory Working Papers
Academics, judges, and policymakers know little about the timing, volume, and cost of discovery in our civil justice system. This information deficit is most severe with respect to the most salient discovery-related issue for practitioners today: preservation—the duty to preserve relevant data when litigation is reasonably anticipated. This collective ignorance feeds uncertainty at both the policy level and at the doctrinal level. In this paper, I present original, empirical research on the nature and costs of preservation and discovery. This research is the first, and to date only, systematic effort to measure the extent and costs of preservation activity. I …
The Invention Of Low-Value Speech, Genevieve Lakier
The Invention Of Low-Value Speech, Genevieve Lakier
Public Law and Legal Theory Working Papers
It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern. This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the …
Teaching Election Law, Nicholas Stephanopoulos
Teaching Election Law, Nicholas Stephanopoulos
Public Law and Legal Theory Working Papers
In the last couple years, new editions of the two most prominent election law casebooks have been released, and one entirely new casebook has been published. This is an opportune moment, then, both to review the volumes and to assess the state of the field. Fortunately, both are strong. All of the casebooks are well organized, thorough in their coverage, and full of insightful commentary. And the field, at least as presented by the volumes, is impressively confident in its substantive and methodological choices. There is a high level of consensus as to both the subject areas that election law …
Egypt, Ethiopia, And The Nile: The Economics Of International Water Law, Daniel Abebe
Egypt, Ethiopia, And The Nile: The Economics Of International Water Law, Daniel Abebe
Public Law and Legal Theory Working Papers
As part of a Symposium on the book The Economic Foundations of International Law, this Article briefly compares and contrasts two distinct analytical approaches to international law—doctrinal versus economic—in the context of Egypt’s and Ethiopia’s dispute over the right to exploit the Nile River’s water resources. The Article argues that the traditional doctrinal approach, one based solely on an examination of international water law, treaties, and customary international law is unlikely to result in a legal conclusion that either state is likely to respect because such an approach fails to consider the incentives, material capabilities, and national interests of Egypt …
Limiting Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler
Limiting Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler
Public Law and Legal Theory Working Papers
The plurality and dissenting opinions in McCutcheon v. FEC seem unreal. These opinions, which considered a series of strategies for circumventing federal limits on contributions to candidates, failed to notice that these limits were no longer breathing. The D.C. Circuit’s 2010 decision in SpeechNow.org v. FEC created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional. This Article contends that SpeechNow was wrongly decided. It also considers what can be said for and against a bumper sticker’s declarations that money is not speech …
Reply To Five Critics Of Why Tolerate Religion?, Brian Leiter
Reply To Five Critics Of Why Tolerate Religion?, Brian Leiter
Public Law and Legal Theory Working Papers
The NFL’s letter outlining the penalty cited “the club's prior record”—namely, the Spygate scandal—as a factor “in determining the discipline in this case.” Leaving aside the fact that Spygate was an overblown misdemeanor punished with unduly harsh measur
Distributionally-Weighted Cost Benefit Analysis: Welfare Economics Meets Organizational Design, David A. Weisbach
Distributionally-Weighted Cost Benefit Analysis: Welfare Economics Meets Organizational Design, David A. Weisbach
Public Law and Legal Theory Working Papers
Conventional approaches to cost benefit analysis, derived from social welfare maximization, suggest that it should ideally be adjusted to account for distributional effects. These approaches do not consider how tasks should be assigned within a large institution that includes specialized units such as the numerous agencies in the federal government. This paper considers how optimal distributive systems map onto the assignment of tasks to government agencies in such a system. It concludes that regulatory agencies should not, in general be asked to consider the distributive effects of regulations. The types of distributive adjustments that specialized regulatory agencies are able to …
Marx, Law, Ideology, Legal Positivism, Brian Leiter
Marx, Law, Ideology, Legal Positivism, Brian Leiter
Public Law and Legal Theory Working Papers
This essay -- for the UVA conference on "Jurisprudence and History" -- offers an account of Marx’s theory of history and his claim that law (and morality) are "ideological," and then asks what theory of law is adequate to explain the way the Marxist theory understands law in both its ideological and non-ideological senses. In Marx's theory we need to be able to say what law is in three contexts: (1) there are the laws that constitute the relations of production, i.e., the scheme of property rights in the existing forces of production; (2) there are the laws (and associated …
Nuisance Suits, William Hubbard
Nuisance Suits, William Hubbard
Public Law and Legal Theory Working Papers
This paper develops a simple but general model of negative-expected-value (NEV) suit and settlement given symmetric information. It accounts for the roles of the merits, litigation costs, and bargaining power; incorporates complaints and answers for which parties' investments in pleading detail are endogenously determined; permits strategic default by the defendant; and nests several existing models of NEV litigation as special cases. It generates testable, counterintuitive, empirical predictions and facilitates normative analysis. For example, the model predicts that plausibility pleading standards will have modest effects in deterring low-merit suits but may be harmful to plaintiffs and defendants settling stronger cases.
The Case Against Free Speech, Brian Leiter
The Case Against Free Speech, Brian Leiter
Public Law and Legal Theory Working Papers
Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity at large might seem to counsel, of course, against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity …
Cost-Benefit Analysis Of Financial Regulations: A Response To Criticisms, Eric A. Posner, E. Glen Weyl
Cost-Benefit Analysis Of Financial Regulations: A Response To Criticisms, Eric A. Posner, E. Glen Weyl
Public Law and Legal Theory Working Papers
Financial regulators should use cost-benefit analysis (CBA) to evaluate financial regulations. Finance is an ideal domain for CBA because the direct costs and benefits of financial activity can be easily monetized, and a huge amount of data exists for calculating the relevant valuations. John Coates and others have argued that in fact the valuations are too difficult to determine because of unique features of financial markets that distinguish them from other types of markets where CBA is used. We respond that these features are present in other markets, and that financial valuations are difficult to determine at present only because …
Does The Constitutional Amendment Rule Matter At All? Amendment Cultures And The Challenges Of Measuring Amendment Difficulty, Tom Ginsburg, James Melton
Does The Constitutional Amendment Rule Matter At All? Amendment Cultures And The Challenges Of Measuring Amendment Difficulty, Tom Ginsburg, James Melton
Public Law and Legal Theory Working Papers
No abstract provided.
Regarding Re's Revisionism: Notes On 'The Due Process Exclusionary Rule', Albert W. Alschuler
Regarding Re's Revisionism: Notes On 'The Due Process Exclusionary Rule', Albert W. Alschuler
Public Law and Legal Theory Working Papers
No abstract provided.
Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Dawood I. Ahmed, Tom Ginsburg
Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Dawood I. Ahmed, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
The Shadow Powers Of Article I, Alison Lacroix
The Shadow Powers Of Article I, Alison Lacroix
Public Law and Legal Theory Working Papers
This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser ex
The Function Of Article V, Aziz Huq
The Function Of Article V, Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
Coasean Bargaining Over The Structural Constitution, Aziz Huq
Coasean Bargaining Over The Structural Constitution, Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
Habeas And The Roberts Court, Aziz Huq
Habeas And The Roberts Court, Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
Introduction, Chapter 1 Of Constitutions In Authoritarian Regimes, Tom Ginsburg, Alberto Simpser
Introduction, Chapter 1 Of Constitutions In Authoritarian Regimes, Tom Ginsburg, Alberto Simpser
Public Law and Legal Theory Working Papers
No abstract provided.