Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 40
Full-Text Articles in Law
Standing For The Structural Constitution, Aziz Huq
Standing For The Structural Constitution, Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
Inside Or Outside The System?, Eric A. Posner, Adrian Vermeule
Inside Or Outside The System?, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the "determinacy paradox," and elicit …
Personalizing Default Rules And Disclosure With Big Data, Lior Strahilevitz, Ariel Porat
Personalizing Default Rules And Disclosure With Big Data, Lior Strahilevitz, Ariel Porat
Public Law and Legal Theory Working Papers
This paper provides the first comprehensive account of personalized default rules and personalized disclosure in the law. Under a personalized approach to default rules, individuals are assigned default terms in contracts or wills that are tailored to their own personalities, characteristics, and past behaviors. Similarly, disclosures by firms or the state can be tailored so that only information likely to be relevant to an individual is disclosed, and information likely to be irrelevant to her is omitted. The paper explains how the rise of Big Data makes the effective personalization of default rules and disclosure far easier than it would …
Toward A Positive Theory Of Privacy Law, Lior Strahilevitz
Toward A Positive Theory Of Privacy Law, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.
A Theory Of Pleading, William Hubbard
A Theory Of Pleading, William Hubbard
Public Law and Legal Theory Working Papers
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important cases on pleading in fifty years. A large literature argues that these cases have raised pleading standards, empowered federal judges as the gatekeepers to federal court, and undermined the “liberal ethos” of the Federal Rules of Civil Procedure. This understanding of pleading doctrine has in turn led to predictions of dramatic effects on dismissal rates, particularly for claims, such as employment discrimination claims, where plaintiffs often lack knowledge of the defendant’s intent at the outset of the case. The accumulating empirical evidence, however, confounds these predictions. Why …
Bankruptcy Step Zero, Douglas G. Baird, Anthony Casey
Bankruptcy Step Zero, Douglas G. Baird, Anthony Casey
Public Law and Legal Theory Working Papers
No abstract provided.
The Consequences Of Consequentialist Criteria, Nicholas Stephanopoulos
The Consequences Of Consequentialist Criteria, Nicholas Stephanopoulos
Public Law and Legal Theory Working Papers
The two most significant approaches to redistricting to emerge in the last generation are both consequentialist. That is, they both urge authorities to design—and courts to evaluate—district plans on the basis of the plans’ likely electoral consequences. According to the partisan fairness approach, plans should treat the major parties symmetrically in terms of the conversion of votes to seats. According to the competitiveness approach, districts should be as electorally competitive as is feasible. Unnoticed by the literature, a substantial number of jurisdictions, in both America and Australia, have heeded these calls from the academy. In sum, consequentialist criteria have been …
Federalism, Liberty, And Risk In Nifb V. Sebelius, Aziz Huq
Federalism, Liberty, And Risk In Nifb V. Sebelius, Aziz Huq
Public Law and Legal Theory Working Papers
This book chapter analyzes the Supreme Court’s decision in National Federation of Independent Business (NFIB) v. Sebelius. Contra conventional wisdom, it argues that the pivotal opinion of Chief Justice Roberts is not well explained in federalism terms. Rather, the decision is best understood in light of entrenched historical understandings of the federal government’s appropriate role in managing diverse species of risk.
Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq
Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Tom Ginsburg, Zachary Elkins, Beth Simmons
Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Tom Ginsburg, Zachary Elkins, Beth Simmons
Public Law and Legal Theory Working Papers
This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not …
Historical Gloss: A Primer, Alison Lacroix
Historical Gloss: A Primer, Alison Lacroix
Public Law and Legal Theory Working Papers
No abstract provided.
Innovation And Incarceration: An Economic Analysis Of Criminal Intellectual Property Law, Jonathan Masur, Christopher Buccafusco
Innovation And Incarceration: An Economic Analysis Of Criminal Intellectual Property Law, Jonathan Masur, Christopher Buccafusco
Public Law and Legal Theory Working Papers
No abstract provided.
Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert W. Alschuler
Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert W. Alschuler
Public Law and Legal Theory Working Papers
No abstract provided.
An Empirical Study Of The Effect Of Shady Grove V. Allstate On Forum Shopping In The New York Courts, William Hubbard
An Empirical Study Of The Effect Of Shady Grove V. Allstate On Forum Shopping In The New York Courts, William Hubbard
Public Law and Legal Theory Working Papers
Given the considerable prominence of forum-shopping concerns in the jurisprudence and academic literature on the so-called Erie Doctrine, courts and commentators may benefit from data on whether, and to what extent, forum shopping in fact responds to choice-of-law decisions under the Erie Doctrine. Prior to this paper, however, no empirical study quantified the changes in forum shopping behavior caused by a court decision applying the Erie Doctrine. I study changes in filing patterns of cases likely to be affected by the Supreme Court’s recent decision in Shady Grove v. Allstate and find evidence of large shifts in the patterns of …
Beccaria's 'On Crimes And Punishments': A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt
Beccaria's 'On Crimes And Punishments': A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
'Becker And Foucault On Crime And Punishment': A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Bernard E. Harcourt, Gary S. Becker, François Ewald
'Becker And Foucault On Crime And Punishment': A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Bernard E. Harcourt, Gary S. Becker, François Ewald
Public Law and Legal Theory Working Papers
No abstract provided.
Crowdsourcing Land Use, Lee Anne Fennell
Crowdsourcing Land Use, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.
Agency Self-Insulation Under Presidential Review, Jennifer Nou
Agency Self-Insulation Under Presidential Review, Jennifer Nou
Public Law and Legal Theory Working Papers
Agencies possess enormous regulatory discretion. This discretion allows executive branch agencies in particular to insulate their decision 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 court-centered agency behavior to consider, instead, the role of the President under current executive orders. Specifically, it 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. The framework …
Libertarian Paternalism, Path Dependence, And Temporary Law, Tom Ginsburg, Jonathan Masur, Richard H. Mcadams
Libertarian Paternalism, Path Dependence, And Temporary Law, Tom Ginsburg, Jonathan Masur, Richard H. Mcadams
Public Law and Legal Theory Working Papers
No abstract provided.
Nietzsche Against The Philosophical Canon, Brian Leiter
Nietzsche Against The Philosophical Canon, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Policing Immigration, Thomas J. Miles, Adam B. Cox
Policing Immigration, Thomas J. Miles, Adam B. Cox
Public Law and Legal Theory Working Papers
No abstract provided.
Property In Housing, Lee Anne Fennell
Property In Housing, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.
Raising The Stakes In Patent Cases, Anup Malani, Jonathan Masur
Raising The Stakes In Patent Cases, Anup Malani, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
Removal As A Political Question, Aziz Huq
Removal As A Political Question, Aziz Huq
Public Law and Legal Theory Working Papers
When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies' organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, …
The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court’S Opinion In United States V. Windsor, John Stuart Mill’S Essay On Liberty (1859), And H.L.A. Hart’S Modern Harm Principle, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
The Interbellum Constitution: Federalism In The Long Founding Moment, Alison Lacroix
The Interbellum Constitution: Federalism In The Long Founding Moment, Alison Lacroix
Public Law and Legal Theory Working Papers
Today, the mechanism of the spending power drives the gears of the modern federal machine. But early nineteenth century constitutional debates demonstrate that the spending power is essentially a workaround, and a recent one at that – a tool by which Congress achieves certain political and legal ends while respecting the formal boundaries set by Article I and the Tenth Amendment. This “interbellum” period was enormously significant for American constitutional law, in particular the constellation of related doctrines concerning congressional power that we now place under the general heading of “federalism”: the spending power, the enumerated powers of Article I, …
The Social Production Of National Security, Aziz Huq
The Social Production Of National Security, Aziz Huq
Public Law and Legal Theory Working Papers
This Article analyzes a recent policy innovation offered by governments on both sides of the Atlantic as a means of mitigating one form of national security risk: the idea that private individuals and voluntary associations have an untapped capacity for combating terrorism and in particular al Qaeda. Bold assertions in recent strategy statements mooting this possibility have wanted for any supporting account of how private behavior conduces to security. Even if the claimed social production of security against terrorism is causally well-founded, it is unclear how the state can elicit desirable private conduct. Consequently, the proposal’s legal and policy ramifications …
The South African Constitutional Court And Socio-Economic Rights As 'Insurance Swaps', Tom Ginsburg, Rosalind Dixon
The South African Constitutional Court And Socio-Economic Rights As 'Insurance Swaps', Tom Ginsburg, Rosalind Dixon
Public Law and Legal Theory Working Papers
No abstract provided.
Tiers Of Scrutiny In Enumerated Powers Jurisprudence, Aziz Huq
Tiers Of Scrutiny In Enumerated Powers Jurisprudence, Aziz Huq
Public Law and Legal Theory Working Papers
This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in …
Women In Prison In Argentina: Causes, Conditions, And Consequences, Sital Kalantry
Women In Prison In Argentina: Causes, Conditions, And Consequences, Sital Kalantry
Public Law and Legal Theory Working Papers
No abstract provided.