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Full-Text Articles in Law
Zombie Federalism, William Baude
Zombie Federalism, William Baude
Public Law and Legal Theory Working Papers
No abstract provided.
Deference Mistakes, Jonathan Masur, Lisa Larrimore Ouellette
Deference Mistakes, Jonathan Masur, Lisa Larrimore Ouellette
Public Law and Legal Theory Working Papers
This Article begins with what should seem a relatively straightforward proposition: it is impossible to fully understand the holding of a case without understanding its “deference regime”—the standard of review or burden of proof that governs the case. If a court holds in the context of a habeas petition that a constitutional right was not “clearly established,” that does not mean that the court would hold that the right does not exist were it writing on a blank slate. If a court refuses to invalidate a granted patent, which is presumed valid and can only be held invalid upon a …
Martii Koskenniemi On Human Rights: An Empirical Perspective, Eric A. Posner
Martii Koskenniemi On Human Rights: An Empirical Perspective, Eric A. Posner
Public Law and Legal Theory Working Papers
Martii Koskenniemi argues that human rights law is indeterminate, and that arguments based on human rights unavoidably reflect the policy preferences of the speaker. I connect this argument to empirical evidence of the failure of international human rights treaties to improve human rights in countries that have ratified them. I argue that many features of the human rights regime that are celebrated by lawyers—the large number of treaties, the vast number of rights, the large amount of institutionalization, and the involvement of NGOs—actually reflect the failure of the regime. Governments tolerate these developments because they add to the indeterminacy of …
Sub-Regulating Elections, Jennifer Nou
Sub-Regulating Elections, Jennifer Nou
Public Law and Legal Theory Working Papers
No abstract provided.
Terrible Tools For Prosecutors: Notes On Senator Leahy's Proposal To 'Fix' Skilling V. United States, Albert W. Alschuler
Terrible Tools For Prosecutors: Notes On Senator Leahy's Proposal To 'Fix' Skilling V. United States, Albert W. Alschuler
Public Law and Legal Theory Working Papers
This article examines a proposed legislative response to Skilling v. United States, a response approved by the Senate but never voted on by the House. It argues that federal mail fraud prosecutions disgrace American criminal justice and that amending the
Libertarian Separation Of Powers, Aziz Huq
Libertarian Separation Of Powers, Aziz Huq
Public Law and Legal Theory Working Papers
The Constitution’s distribution of power among three branches of the federal government is valued because it aims to produce some bundle of valuable social or public goods such as democracy, rights, or welfare. This essay examines the interaction between constitutional structure and those goods a libertarian might pursue. Analyzing the options for both a constitutional designer and a constitutional interpreter, it suggests that first-order preferences over liberty fail to translate into structural design maxims in any mechanical or predictable way.
Preface To The Paperback Edition Of Why Tolerate Religion?, Brian Leiter
Preface To The Paperback Edition Of Why Tolerate Religion?, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Addressing Minority Vote Dilution Through State Voting Rights Acts, Paige A. Epstein
Addressing Minority Vote Dilution Through State Voting Rights Acts, Paige A. Epstein
Public Law and Legal Theory Working Papers
No abstract provided.
Trade Usage In The Courts: The Flawed Conceptual And Evidentiary Basis Of Article 2’S Incorporation Strategy, Lisa Bernstein
Trade Usage In The Courts: The Flawed Conceptual And Evidentiary Basis Of Article 2’S Incorporation Strategy, Lisa Bernstein
Public Law and Legal Theory Working Papers
No abstract provided.
Does The Logic Of Collective Action Explain Federalism Doctrine?, Aziz Huq
Does The Logic Of Collective Action Explain Federalism Doctrine?, Aziz Huq
Public Law and Legal Theory Working Papers
Recent federalism scholarship has taken a “collective action” turn. Commentators endorse or criticize the Court’s doctrinal tools for allocating regulatory authority between the states and the federal government by invoking an economic model of collective
Do Judges Follow The Law? An Empirical Test Of Congressional Control Over Judicial Behavior, William Hubbard, M. Todd Henderson
Do Judges Follow The Law? An Empirical Test Of Congressional Control Over Judicial Behavior, William Hubbard, M. Todd Henderson
Public Law and Legal Theory Working Papers
Do judges follow the law? In a naïve model of judging, Congress writes statutes, which courts know about and then slavishly apply. Although interpretation differences could explain deviation between congressional will and the law as applied, in this model
Voting Rules In International Organizations, Eric A. Posner, Alan O. Sykes
Voting Rules In International Organizations, Eric A. Posner, Alan O. Sykes
Public Law and Legal Theory Working Papers
International organizations use a bewildering variety of voting rules—with different thresholds, weighting systems, veto points, and other rules that distribute influence unequally among participants. We provide a brief survey of the major voting systems, and show that all are controversial and unsatisfactory in various ways. While it is tempting to blame great powers or the weakness of international law for these problems, we argue that the root source is intellectual rather than political—the difficulty of designing a voting system that both allows efficient collective decisions and protects the legitimate interests of members. We show how a new type of voting …
Judicial Roles In Nonjudicial Functions, Nuno Garoupa, Tom Ginsburg
Judicial Roles In Nonjudicial Functions, Nuno Garoupa, Tom Ginsburg
Public Law and Legal Theory Working Papers
Judges perform nonjudicial functions in many contexts. Most jurisdictions regulate these functions in multiple ways, by statute and by custom. We provide a theory of judicial demand and judicial supply for nonjudicial functions. By teasing out the determinants of judicial involvement in nonjudicial functions, we show the potential market failures and the need for regulation. We suggest that some limitations on the judicial exercise of nonjudicial functions seem justified. However, these limits might vary across jurisdictions depending on institutional and contextual factors.
Credible Threats, Saul Levmore, Ariel Porat
Credible Threats, Saul Levmore, Ariel Porat
Public Law and Legal Theory Working Papers
“Your money or your life” is a classic threat, and it is one that law is prepared to penalize. The sanction may occasionally do more harm than good, but for the most part the law’s treatment of such serious threats is sensible. In contrast, “If you do not lower the price of that automobile I hope to buy, I will never return to this dealership” is a threat that law ignores. The buyer is free to return the next day and reveal that the threat was a bluff. In both cases the threat is a more valuable signal if the …
Limited Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler
Limited Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler
Public Law and Legal Theory Working Papers
No abstract provided.