Law Commons^™

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

A Pragmatic Defense Of Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

The Structural Case For Vertical Maximalism, Tara Leigh Grove

Faculty Publications

Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …

What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson

Faculty Publications

Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” In this case, a district court approved a class action settlement that purported to resolve both registered and unregistered copyright claims. The Supreme Court is being asked to decide whether that registration requirement is a limitation on federal court subject-matter jurisdiction.

Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg

Faculty Publications

American energy policy has slowly begun to change the mix in the sources of supply of electricity to residences, industry, and businesses. Renewable sources of electricity have been promoted as future contributors of large portions of the nation's electricity consumption. Wind power has been identified as a potentially substantial future electricity source contributing up to 20% of American demand 2030. To achieve these optimistic goals, there must be: (1) cost-effective, reliable energy technology; (2) sufficient investment capital to finance new construction; and (3) the existence of supportive governmental policies at all levels government. This article discusses the importance of inter-governmental …

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Understanding Pleading Doctrine, A. Benjamin Spencer

Faculty Publications

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

Book Review Of Global Responsibility For Human Rights: World Poverty And The Development Of International Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

Social Rights And The Relational Value Of The Rights To Participate In Sport, Recreation And Play, Janet E. Lord, Michael Ashley Stein

Faculty Publications

No abstract provided.

Disability-Selective Abortion And The Americans With Disabilities Act, Dov Fox, Christopher L. Griffin Jr.

Faculty Publications

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA’s passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people it was designed to protect. We explain this paradox by showing the way in which specific ADA provisions could have given rise …

A Fiduciary Theory Of Jus Cogens, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

A Tale Of (At Least) Two Authors: Focusing Copyright Law On Process Over Product, Laura A. Heymann

Faculty Publications

No abstract provided.

Book Review Of Unspeakable: The Story Of Junius Wilson, Michael Ashley Stein, Aviam Soifer

Faculty Publications

No abstract provided.

Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Faculty Publications

No abstract provided.

Collaborative Governance: Lessons For Europe From U.S. Electricity Restructuring, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann

Faculty Publications

No abstract provided.

Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins

Faculty Publications

No abstract provided.

Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove

Faculty Publications

No abstract provided.

Testimonial Deficiencies And Evidentiary Uncertainties In International Criminal Trials, Nancy Amoury Combs

Faculty Publications

In this article, the author describes the flaws inherent in the process of international criminal tribunals which seek to punish the inhumane actions of dictators. The author first describes how international criminal trials confront severe impediments to accurate factfinding. It continues on to discuss the failure of witnesses in these tribunals to accurately convey the information needed to make a fully- informed decision. This problem is compounded by the fact that what clear information is provided during witness testimony often is inconsistent with the information that the witness previously provided in a pre-trial statement. The author also explores the causes …

Deriving Peremptory Norms From Sovereignty, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year

This Article …

Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Lawyer As Catalyst Of Social Change, James E. Moliterno

Faculty Publications

No abstract provided.

Tennessee V. Lane, Martha A. Field, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong

Faculty Publications

No abstract provided.

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

A Noteworthy Absence, Nancy Leong

Faculty Publications

No abstract provided.

"The Living Oracles": Legal Interpretation And Mormon Thought, Nathan B. Oman

Faculty Publications

No abstract provided.