Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (10)
- Legal History (8)
- Courts (7)
- Criminal Procedure (7)
- Business Organizations Law (6)
-
- International Law (6)
- Law and Society (6)
- Criminal Law (5)
- Judges (5)
- Comparative and Foreign Law (4)
- Law and Politics (4)
- Legal Profession (4)
- State and Local Government Law (4)
- Torts (4)
- Civil Rights and Discrimination (3)
- Human Rights Law (3)
- Intellectual Property Law (3)
- Jurisdiction (3)
- Legal Education (3)
- Civil Law (2)
- Jurisprudence (2)
- Law and Gender (2)
- Legal Ethics and Professional Responsibility (2)
- National Security Law (2)
- Religion Law (2)
- Rule of Law (2)
- Secured Transactions (2)
- Sexuality and the Law (2)
- Tax Law (2)
- Keyword
-
- Constitution (3)
- Dictionaries (2)
- Human rights (2)
- Judges (2)
- Race (2)
-
- Supreme Court (2)
- personal jurisdiction (1)
- 10b5; Amgen; Class Actions; Basic; Blackmun; Brennan; Deceit; Dura; Economic Loss; Fraud; Fraud on the Market; Loss Causation; Scienter; Securities Fraud; Tort (1)
- ADR (1)
- Abortion (1)
- Academia (1)
- Access (1)
- Access to courts (1)
- Affordable Care Act (1)
- Africa (1)
- Against Obligation (1)
- Aggregate settlement (1)
- Andrew Koppelman (1)
- Anti-prostitution (1)
- Antitrust liability (1)
- Aroow's paradox (1)
- Artistic freedom (1)
- Autonomous self-interest (1)
- Behavioral genetics (1)
- Bellwether trial (1)
- Biology (1)
- Biomedical research (1)
- Branding (1)
- Brian Leiter (1)
- Cardozo; Calabresi; Chamallas; civil recourse; corrective justice; damages; duty; economic analysis of Tort Law; emotional distress; Holmes; Posner; pragmatic conceptualism; punitive damages; realism; rights of action; Robinette; Rustad; tort; wrongs (1)
Articles 31 - 60 of 66
Full-Text Articles in Law
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Faculty Scholarship
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …
The Home-State Test For General Personal Jurisdiction, Howard M. Erichson
The Home-State Test For General Personal Jurisdiction, Howard M. Erichson
Faculty Scholarship
This article attempts to articulate the due process test for general in personam jurisdiction. It frames the question as what gives a state sufficiently plenary power over a person that the state may adjudicate claims against the person regardless of where the claims arose, and it answers that question in terms of a home-state relationship between the defendant and the forum state. Written for a roundtable on the upcoming Supreme Court case of DaimlerChrysler AG v. Bauman, the article urges the Court to state the home-state test for general jurisdiction more clearly than it did two years ago in Goodyear …
The Role Of The Judge In Non-Class Settlement, Howard M. Erichson
The Role Of The Judge In Non-Class Settlement, Howard M. Erichson
Faculty Scholarship
This commentary argues that judges lack the authority, as a general matter, to approve or reject non-class settlements. While judges overseeing mass litigation can set the stage for settlement by instituting phased discovery, scheduling bellwether trials, and other methods, they should respect the line between facilitation of settlement and control over settlement terms. The paper was presented in response to Judge Alvin Hellerstein’s and his special masters' account of their handling of the September 11 clean-up litigation.
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene
Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene
Faculty Scholarship
What makes religion distinctive, and how does answering that question help us answer questions regarding religious freedom in a liberal democracy? In their books on religion in the United States under our Constitution, Andrew Koppelman (DefendingAmerican Religious Neutrality) and Brian Leiter (Why Tolerate Religion?) offer sharply different answers to this set of questions. This review essay first explores why we might treat religion distinctively, suggesting that in our constitutional order, it makes sense to focus on theism (or any roughly similar analogue) as the hallmark of religious belief and practice. Neither Koppelman nor Leiter focuses on this, in part because …
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Faculty Scholarship
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …
Why The Supreme Court Should Give The Easy Answer To An Easy Question: A Response To Professors Childress, Neuborne, Sherry And Silberman, Howard M. Erichson
Why The Supreme Court Should Give The Easy Answer To An Easy Question: A Response To Professors Childress, Neuborne, Sherry And Silberman, Howard M. Erichson
Faculty Scholarship
This paper responds to arguments that the Supreme Court should sidestep the core questions of personal jurisdiction in DaimlerChrysler AG v. Bauman. It argues that general personal jurisdiction over a corporation should be limited to the corporation's home state. As a corollary of this point, an agency relationship between a parent and subsidiary does not justify attribution of contacts for purposes of general jurisdiction. The key to the analysis is understanding the fundamental difference between specific jurisdiction and general jurisdiction, and this distinction explains several of the disagreements between myself and other participants in this Roundtable.
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Faculty Scholarship
The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …
Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau
Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau
Faculty Scholarship
The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
Faculty Scholarship
This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.
Military Veterans, Culpability, And Blame, Youngjae Lee
Military Veterans, Culpability, And Blame, Youngjae Lee
Faculty Scholarship
Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are …
Translating Fiduciary Principles Into Public Law, Ethan J. Leib, David L. Ponet, Michael Serota
Translating Fiduciary Principles Into Public Law, Ethan J. Leib, David L. Ponet, Michael Serota
Faculty Scholarship
Because public office is a public trust, fiduciary architecture can help orient us in figuring out how political power should be exercised legitimately. Part of the appeal of conceiving the political relationship between representative and represented in fiduciary terms is that it regards politics in more realistic and textured ways — as a constellation of power relationships in a web of trust and vulnerability — rather than as a mere social contract no one ever signed. Thinking of legislators as public fiduciaries tells us much about the nature of the relationship between the governed and their governors and it can …
The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus
The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus
Faculty Scholarship
Activists for sex worker rights in South Africa are leading a sophisticated national campaign to decriminalize sex work. This Article serves as an act of solidarity with these activists’ continued efforts to fight for and realize sex workers’ human rights by examining the negative impact that criminalizing prostitution has on sex workers’ rights and presenting evidence-based arguments to show that South Africa should enact legislation to fully decriminalize sex work. South African sex workers’ real-life experiences with violence, police abuse, and lack of access to health care and the justice system, highlighted through interviews conducted by the authors during fieldwork …
What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner
What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner
Faculty Scholarship
In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …
Charter Schools, The Establishment Clause, And The Neoliberal Turn In Public Education, Aaron J. Saiger
Charter Schools, The Establishment Clause, And The Neoliberal Turn In Public Education, Aaron J. Saiger
Faculty Scholarship
Regardless whether the American charter school can improve academic performance and provide effective alternatives to traditional public schools, its steady entrenchment as an institution portends significant, destabilizing changes across education law. In no area will its impact be more profound than the law of religion and schooling. Despite the general view that charter schools are public schools, charters’ neoliberal character — they are privately created and managed, and chosen by consumers in a marketplace — makes them private schools for Establishment Clause purposes, notwithstanding their public subsidy. This conclusion, which rests in substantial part on the Zelman v. Simmons-Harris vouchers …
The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green
The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green
Faculty Scholarship
This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …
Staging The Family, Clare Huntington
Staging The Family, Clare Huntington
Faculty Scholarship
For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye. These performances of family and familial roles do not simply communicate messages to …
Towards Engaged Scholarship, Nestor M. Davidson
Towards Engaged Scholarship, Nestor M. Davidson
Faculty Scholarship
No abstract provided.
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustad, Chamallas, And Robinette, Benjamin C. Zipursky, John C.P. Goldberg
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustad, Chamallas, And Robinette, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
As part of a symposium issue of the Indiana Law Journal devoted to our Civil Recourse Theory of Tort Law, we respond to criticisms by Judge Calabresi, Judge Posner, and Professors Chamallas, Robinette, and Rustad. Calabresi and Posner criticize Civil Recourse Theory as a bit of glib moralism that fails to generate useful answers to the difficult questions that courts face when applying Tort Law. We show with several examples, both old and new, that the glibness is all on their side. From duty to causation to punitive damages, from products liability to fraud to privacy, our scholarship has had …
A Most Useful Ball Of Thread, Review Of Navigating Hud Programs: A Practitioner's To The Labyrinth By George Weidenfeller & Julie S. Mcgovern, Eds., Nestor M. Davidson
A Most Useful Ball Of Thread, Review Of Navigating Hud Programs: A Practitioner's To The Labyrinth By George Weidenfeller & Julie S. Mcgovern, Eds., Nestor M. Davidson
Faculty Scholarship
This book review of Navigating HUD Programs: A Practitioner’s Guide to the Labyrinth (George Weidenfeller & Julie McGovern eds., 2012) discusses the approach the book takes to a range of HUD programs, discusses some intimations of reform efforts suggested by the authors, and explores ways in which the book’s guidance reflects potential benefits in nascent HUD efforts at programmatic consolidation and modernization.
According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt
According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt
Faculty Scholarship
This Article offers a review of Angela Onwuachi-Willig’s wonderful book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family. Race scholars have begun to productively deploy structuralism to discuss cumulative racial disadvantage and the ongoing, racially segregative effects of government systems and policies. of such systems on intimate choice and family formation. Likewise, some scholars have employed structuralism to explore how law shapes our intimate preferences and opportunities for intimate engagements. Still, scholars of this very exciting work have not yet engaged as fully as they might regarding questions of race. This Article contends that …
Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green
Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green
Faculty Scholarship
In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the …
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff
Faculty Scholarship
This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …
The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky
The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky
Faculty Scholarship
Fraud on the market is at the core of contemporary securities law, permitting 10b-5 class actions to proceed without direct proof of investor reliance on a misrepresentation. Yet the ambiguities of this idea have fractured the Supreme Court from its initial recognition of the doctrine in Basic v. Levinson to its recent decision in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds. Amidst divergent views of the coherence and advisability of liability for fraud on the market a fundamental question lurks: is a suit for damages that invokes the fraud-on-the-market theory a claim for common law deceit, such that …
The Market For Preclusion In Merger Litigation, Sean J. Griffith, Alexandra D. Lahav
The Market For Preclusion In Merger Litigation, Sean J. Griffith, Alexandra D. Lahav
Faculty Scholarship
The recent finding that corporate litigation involving Delaware companies very often takes place outside of Delaware has disturbed the long-settled understanding of how merger litigation works. With many, even most, cases being filed and ultimately resolved outside of Delaware, commentators warn that the trend is a threat to shareholders, to Delaware, and to the integrity of corporate law generally. Although the out-of-Delaware trend suggests that litigants are seeking to use the procedural rules of other jurisdictions to their advantage, we argue that the result need not threaten the interests of any of the stakeholders in deal litigation. We reframe the …
Why Strickland Is The Wrong Test For Assessing Violations Of The Right To Testify, Daniel J. Capra, Joseph Tartakovsky
Why Strickland Is The Wrong Test For Assessing Violations Of The Right To Testify, Daniel J. Capra, Joseph Tartakovsky
Faculty Scholarship
A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important "personal" rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant's right to testify. This Article proposes a new test to better secure and enforce …
China At The Tipping Point? The Tum Against Legal Reform, Carl F. Minzner
China At The Tipping Point? The Tum Against Legal Reform, Carl F. Minzner
Faculty Scholarship
No abstract provided.
The Trojan Horse Revisited, Constantine N. Katsoris
The Trojan Horse Revisited, Constantine N. Katsoris
Faculty Scholarship
No abstract provided.
What Is Philosophy Of Criminal Law?, Youngjae Lee
What Is Philosophy Of Criminal Law?, Youngjae Lee
Faculty Scholarship
No abstract provided.
A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota
A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota
Faculty Scholarship
For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. This paper reveals how the law governing fiduciary relationships sheds new light on this age-old pursuit, and therefore, on the very nature of the judicial office itself. The paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insights into what it means to be …