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Full-Text Articles in Law
Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg
Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg
Articles
No abstract provided.
Property's Memories, Eduardo Peñalver
Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt
Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt
Articles
No abstract provided.
Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt
Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt
Articles
No abstract provided.
Willpower Taxes, Lee Anne Fennell
Willpower Taxes, Lee Anne Fennell
Articles
Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …
Judicial Inconsistency As Virtue: The Case Of Justice Stevens, Justin Driver
Judicial Inconsistency As Virtue: The Case Of Justice Stevens, Justin Driver
Articles
No abstract provided.
Selective Judicial Activism, Geoffrey R. Stone
The Consensus Constitution, Justin Driver
Unbundling Risk, Lee Anne Fennell
Unbundling Risk, Lee Anne Fennell
Articles
Scholars have explored many ways to rearrange risk outside of traditional insurance markets. An interesting literature addresses a range of innovative alternatives, including the sale of unmatured tort claims or chances at windfalls, "anti-insurance," or "reverse insurance," and index-based derivatives that address routine (but life-altering) risks, such as those to home values or livelihoods. Because most of this work grows out of a conviction that specific risk allocations embedded in law could be improved upon, the merits of the newly proposed risk arrangements have taken center stage. This Article, in contrast, examines questions surrounding risk customization itself such as the …
The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner
The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner
Articles
Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the …
Eavesdropping On The Vox Populi (Reviewing Pauline Maier, Ratification: The People Debate The Constitution, 1787- 1788 (2010) & Jack Rakove, Revolutionaries: A New History Of The Invention Of America (2010)), Alison Lacroix
Articles
Eavesdropping on the Vox Populi (reviewing Pauline Maier, Ratification: The People Debate the Constitution, 1787- 1788 (2010) & Jack Rakove, Revolutionaries: A New History of The Invention of America (2010))
Reconsidering Racial And Partisan Gerrymandering, Adam B. Cox, Richard T. Holden
Reconsidering Racial And Partisan Gerrymandering, Adam B. Cox, Richard T. Holden
Articles
In recent years, scholars have come to a general agreement about the relationship between partisan gerrymandering and racial redistricting. Drawing districts that contain a majority of minority voters, as is often required by the Voting Rights Act, is said to help minority voters in those districts but hurt the Democratic Party more broadly. This Article argues that this familiar claim is based on a mistaken assumption about how redistricters can best manipulate districts for partisan gain -an assumption grounded in the idea that all voters can be thought of as either Democrats or Republicans. Relaxing this assumption, and acknowledging that …
Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati
Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati
Articles
Although customary international law (CIL) has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness.1 While some of these debates and uncertainties are longstanding, they have intensified in recent years, in part because of the rise of multilateral treaty-making, which allows nations collectively to negotiate and codify broad areas of international law instead of relying on unwritten custom. Moreover, it has become increasingly apparent that CIL is structurally unable to address many of the world’s most pressing problems, such …
Radical Thought From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Luke's In Defense Of False Consciousness Governance And Power, Bernard E. Harcourt
Radical Thought From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Luke's In Defense Of False Consciousness Governance And Power, Bernard E. Harcourt
Articles
No abstract provided.
Feminist Fundamentalism As An Individual And Constitutional Commitment, Mary Anne Case
Feminist Fundamentalism As An Individual And Constitutional Commitment, Mary Anne Case
Articles
No abstract provided.
Private Religious Discrimination, National Security, And The First Amendment, Aziz Huq
Private Religious Discrimination, National Security, And The First Amendment, Aziz Huq
Articles
No abstract provided.
After Gender The Destruction Of Man - The Vatican's Nightmare Vision Of The 'Gender Agenda' For Law, Mary Anne Case
After Gender The Destruction Of Man - The Vatican's Nightmare Vision Of The 'Gender Agenda' For Law, Mary Anne Case
Articles
No abstract provided.
Enforcing Bargains In An Ongoing Marriage, Mary Anne Case
Enforcing Bargains In An Ongoing Marriage, Mary Anne Case
Articles
No abstract provided.
Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel
Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel
Articles
No abstract provided.
Building Reputation In Constitutional Courts: Political And Judicial Audiences, Tom Ginsburg, Nuno Garoupa
Building Reputation In Constitutional Courts: Political And Judicial Audiences, Tom Ginsburg, Nuno Garoupa
Articles
No abstract provided.
Empiricism And The Rising Incidence Of Coauthorship In Law, Tom Ginsburg, Thomas J. Miles
Empiricism And The Rising Incidence Of Coauthorship In Law, Tom Ginsburg, Thomas J. Miles
Articles
The recent growth of empirical scholarship in law, which some have termed "empirical legal studies," has received much attention. A less-noticed implication of this trend is its potential impact on the manner of scholarly production in legal academia. A common prediction is that academic collaboration rises with scholarly specialization. As the complexity of a field grows, more human capital and more diverse types of human capital are needed to make a contribution. This Article presents two tests of whether empiricism has spurred more coauthorship in law. First, the Article shows that the fraction of articles in the top fifteen law …
Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt
Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt
Articles
No abstract provided.
Heller's Gridlock Economy In Perspective: Why There Is Too Little, Not Too Much Private Property, Richard A. Epstein
Heller's Gridlock Economy In Perspective: Why There Is Too Little, Not Too Much Private Property, Richard A. Epstein
Articles
This Article critiques Michael Heller's important contribution in The Gridlock Economy. At no point does this Article take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But gridlock is not the major source of social dislocation; nor is private ownership the major source of gridlock. More concretely, this Article examines the other important sources of economic distortion that are unrelated to economic gridlock from private action. These include the use of excessive government subsidies (as with health care); misguided government licenses (as with broadcast licenses); the unwise use …
India's Evolving Patent Laws And The Wto Obligations: The Rejection Of Abbott Laboratories' Application For A New Kaletra Patent, Adam S. Chilton
India's Evolving Patent Laws And The Wto Obligations: The Rejection Of Abbott Laboratories' Application For A New Kaletra Patent, Adam S. Chilton
Articles
No abstract provided.
Patent Liability Rules As Search Rules, Jonathan Masur
Patent Liability Rules As Search Rules, Jonathan Masur
Articles
Patent law's infringement doctrines, commonly understood to be simply rules of liability, are in fact search rules as well. Patent liability rules determine not only who will be responsible for what conduct, but also when patent holders and potential infringers will benefit from locating (or remaining ignorant of) one another. They thus affect the conditions under which parties will have incentives to engage in search. The dynamics of patent search are actually quite complicated. Under normal circumstances, patent law's liability rules generate approximately optimal investments in search as both patent holders and possible infringers have incentives to locate one another. …
Fixing Unfair Contracts, Omri Ben-Shahar
Fixing Unfair Contracts, Omri Ben-Shahar
Articles
Various doctrines of contract and consumer protection law allow courts to strike down unfair contract terms. A large literature has explored the question which terms should be viewed as unfair, but a related question has never been studied systematically-what provision should replace the vacated unfair term? How should a distributively unfair contract be fixed? This Article demonstrates that the law uses three competing criteria for a replacement provision: (1) the most reasonable term; (2) a punitive term, strongly unfavorable to the overreaching party; and (3) the minimally tolerable term, which preserves the original term as much as is tolerable. The …
The Failure Of Mandated Discourse, Omri Ben-Shahar, Carl E. Schneider
The Failure Of Mandated Discourse, Omri Ben-Shahar, Carl E. Schneider
Articles
This Article explores the spectacular prevalence, and failure, of the single most common technique for protecting personal autonomy in modern society: mandated disclosure. The Article has four Parts: (1) a comprehensive summary of the recurring use of mandated disclosures, in many forms and circumstances, in the areas of consumer and borrower protection, patient informed consent, contract formation, and constitutional rights; (2) a survey of the empirical literature documenting the failure of the mandated disclosure regime in informing people and in improving their decisions; (3) an account of the multitude of reasons mandated disclosures fail, focusing on the political dynamics underlying …
The Creditors' Bargain And Option-Preservation Priority In Chapter 11, Anthony Casey
The Creditors' Bargain And Option-Preservation Priority In Chapter 11, Anthony Casey
Articles
Corporate reorganization under Chapter 11 of the Bankruptcy Code is built on the foundation of the absolute priority rule, which requires that senior creditors be paid in full before any value can be distributed to junior creditors. The standard law and economics understanding is that absolute priority follows inevitably from the "creditors' bargain" model. That model tells us that the optimal system of reorganization must respect nonbankruptcy contract rights while maximizing the expected value of assets in bankruptcy. The conventional wisdom is that absolute priority fits this bill as the singular way of protecting creditors' nonbankruptcy contract rights. But what …
Of Pleading And Discovery: Reflections On Twombly And Iqbal With Special Reference To Antitrust, Richard A. Epstein
Of Pleading And Discovery: Reflections On Twombly And Iqbal With Special Reference To Antitrust, Richard A. Epstein
Articles
This Essay explores the evolving influence of Twombly and Iqbal on modern antitrust litigation. The author argues that any proposed statutory repudiation of Twombly and Iqbal is premature. He also develops a model that calls for a periodic reevaluation of the overall strength of a plaintiffs case to see if a final motion dismissing the case or some part thereof is appropriate before discovery runs its course. That approach should be followed in a limited number of big cases. The key to the successful judicial administration of discovery is to require that plaintiffs gather publicly available information in order to …
Direct Democracy: Government Of The People, By The People, And For The People, Richard A. Epstein
Direct Democracy: Government Of The People, By The People, And For The People, Richard A. Epstein
Articles
No abstract provided.