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Full-Text Articles in Law
Substantive Habeas, Kimberly A. Thomas
Substantive Habeas, Kimberly A. Thomas
Articles
Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …
Unbundling Constitutionality, Richard A. Primus
Unbundling Constitutionality, Richard A. Primus
Articles
Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are …
Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
Judicial Power And Mobilizable History, Richard A. Primus
Judicial Power And Mobilizable History, Richard A. Primus
Articles
One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …
Legal Durability, Omri Ben-Shahar
Legal Durability, Omri Ben-Shahar
Articles
This paper develops a framework to study the effects of the durability of legal allocation decisions, such as trial outcomes, regulatory enactments and property entitlements. For a party favored by the legal allocation, a more durable decision is also more costly to secure, ex-ante. Thus, it is not the greater durability of the allocation that determines whether the “winner” is better-off, but other factors that are affected by the durability attribute, such as the cost of securing a favorable outcome and the ability of contesting parties to affect this cost. The paper develops conditions under which greater durability is irrelevant, …
Precontractual Reliance, Lucian A. Bebchuk, Omri Ben-Shahar
Precontractual Reliance, Lucian A. Bebchuk, Omri Ben-Shahar
Articles
During contractual negotiations, parties often make reliance expenditures that would increase the surplus should a contract be made. This paper analyzes decisions to invest in precontractual reliance under alternative legal regimes. Investments in reliance will be socially suboptimal in the absence of any precontractual liability-and will be socially excessive under strict liability for all reliance expenditures. Given the results for these polar cases, we focus on exploring how "intermediate"-liability rules could be best designed to induce efficient reliance decisions. One of our results indicates that the case for liability is shown to be stronger when a party retracts from terms …
Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining
Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining
Articles
he connection between authority and responsibility is such that the one cannot be thought of without the other. In legal method, close reading and rereading of a text marks it as an authoritative text; the presupposition of mind which is necessary to close reading is presupposition of a responsible mind. In the working of institutions that embody authority, the disposition to follow the decisions and statements of a person responsible for a matter inevitably rests upon a presupposition that the decisions and statements followed are those of the responsible person. As that presupposition fades with bureaucratization of decision and writing, …
Risk And Design, James E. Krier
Risk And Design, James E. Krier
Articles
Risk springs from uncertainty,' uncertainty invites error, and, since error can be costly, we would prefer to avoid it (provided, of course, that avoidance is not more costly yet). While there is much in the Noll and Krier article2 about judgmental error under conditions of risk and uncertainty, there is little about ways to avoid it. So avoidance-more accurately, minimization-of error costs is the topic I want to address very briefly and partially here.