Law Commons^™

Civil Liberties V. National Security In The Law's Open Areas, Geoffrey R. Stone

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No abstract provided.

Exploding The Class Action Agency Costs Myth: The Social Utility Of Entrepreneurial Lawyers, Myriam E. Gilles, Gary B. Friedman

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In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice …

Maryland’S "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

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Maryland's Wal-Mart Act raises two fundamental questions: Is the Act legal? Does the Act represent sound policy?

With respect to the legality of the Maryland statute, I conclude that the Employee Retirement Income Security Act of 1974 (ERISA) preempts the Maryland law. As a matter of policy, the Maryland statute is ill-conceived. The Maryland Act raises prices on Wal-Mart's predominantly low-income customers and, for the long run, will reduce Wal-Mart's employment.

In the final analysis, Maryland's Wal-Mart Act is a poorly-designed exercise in political symbolism, rather than a carefully-crafted response to the pressing problem of health care in America.

'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz

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This is an Article about using reputation-tracking technologies to displace criminal law enforcement and improve the tort system. The Article contains an extended application of this idea to the regulation of motorist behavior and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter uncooperative behavior. The Article proposes a compulsory "How's My Driving?" program for all motor vehicles. Although more rigorous study is warranted, the initial data from voluntary "How's My Driving?" programs is quite promising, suggesting that the use of "How's My Driving?" placards on commercial trucks …

The Demise Of Federal Takings Litigation, Stewart E. Sterk

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For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

The Law Of Other States, Eric A. Posner, Cass R. Sunstein

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The question of whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread belief accepted by a number of independent actors, is highly likely to be correct. It follows that if a large majority …

Information Asymmetries And The Rights To Exclude, Lior Strahilevitz

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No abstract provided.

Drugged, Carl E. Schneider

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The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

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Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

The Law Of Implicit Bias, Cass R. Sunstein, Christine Jolls

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Considerable attention has been given to the Implicit Association Test (IA T), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of "debiasing …

"Nine, Of Course": A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, Peter Nicolas

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Conventional wisdom seems to hold that Congress has the power to set, by statute, the number of justices on the United States Supreme Court. But what if conventional wisdom is wrong? In this Dialogue, I challenge the conventional wisdom, hypothesizing that the United States Constitution does not give Congress the power to enact such a statute. Under this hypothesis, the number of justices on the Supreme Court at any given time is to be determined solely by the President and the individual members of the United States Senate in exercising their respective powers of nominating justices and consenting to their …

Creating A Framework For A Single European Sky:The Opportunity Cost Of Reorganising European Airspace, Niall Neligan

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The object of this article is to critically evaluate the legal framework for a European Single Sky project in light of the recent European Court of Justice decision in International Air Transport Association v The Department of Transport. The article will examine in detail the framework regulations outlining the major provisions from the recommendations of the Commission's High Level Group in 2000, to the implementation at a micro-level by national authorities of the legislation adopted in 2004. Furthermore, this article will examine whether the savings to air service providers from the Single European Sky project in the long term will …

Prevalence Of Substantive Consolidation In Large Bankruptcies From 2000 To 2004: Preliminary Results, William H. Widen

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No abstract provided.

After Autonomy, Carl E. Schneider

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Bioethicists today are like Bolsheviks on the death of Lenin. They have, rather to their surprise, won the day. Their principle of autonomy is dogma. Their era of charismatic leadership is over. Their work of Weberian rationalization, of institutionalizing principle and party, has begun. The liturgy is reverently recited, but the vitality of Lenin's "What Is To Be Done?" has yielded to the vacuity of Stalin's "The Foundations of Leninism." Effort once lavished on expounding ideology is now devoted to establishing associations, organizing degree programs, installing bioethicist commissars in every hospital, and staffing IRB soviets. Not-so-secret police prowl the libraries …

Trial And Error: The Supreme Court's Philosophy Of Science, Susan Haack

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No abstract provided.

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

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Michigan's First Woman Lawyer: Sarah Killgore Wertman, Margaret A. Leary

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Sarah Killgore Wertman was the first woman in the country to both graduate from law school and be admitted to the bar. Thus, she was Michigan's first woman lawyer in two senses: She was the first woman to graduate from the University of Michigan Law School, and the first woman admitted to the Michigan bar. Others preceded her in entering law school, graduating from law school, or being admitted to the bar, but she was the first to accomplish all three. Her story illustrates much about the early days of women in legal education and the practice of law, a …

In The Trenches Of Law Librarianship - Assessing A Special Collection From Ground Zero, Stacy Etheredge

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No abstract provided.

Legal Reason: The Use Of Analogy In Legal Argument, Richard A. Posner

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Reasoning By Analogy (Reviewing Lloyd L. Weinreb, Legal Reason: The Use Of Analogy In Legal Argument (2005)), Richard A. Posner

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Life's Golden Tree: Empirical Scholarship And American Law, Carl E. Schneider, Lee E. Teitelbaum

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What follows is a simplified introduction to legal argument. It is concerned with the scheme of argument and with certain primary definitions and assumptions commonly used in legal opinions and analysis. This discussion is not exhaustive of all the forms of legal argument nor of the techniques of argument you will see and use this year. It is merely an attempt to introduce some commonly used tools in legal argument. It starts, as do most of your first-year courses, with the techniques of the common-law method and then proceeds to build statutory, regulatory, and constitutional sources of law into the …

Misfearing: A Reply, Cass R. Sunstein

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Colorblind Must Not Mean Blind To The Realities Facing Black Children, Zanita E. Fenton

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Inheritance Law In Tanzania: The Impoverishment Of Widows And Daughters, Tamar Ezer

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A Dispatch From The Crypto Wars, A. Michael Froomkin

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Matt Curtin's Brute Force is a primarily personal account of one early effort to harness the power of distributed computing. In 1997, Mr. Curtin and other members of the DESCHALL (DES Challenge) project built, distributed, and managed software that united thousands of computers, many of them ordinary personal computers, in the search for a single decryption key among 72 quadrillion possibilities. The DESCHALL project sought to demonstrate that DES, then the U.S. national standard encryption algorithm, was no longer as secure as advertised. While Brute Force also offers some background on encryption regulation, export control policy, and other aspect of …

When "Victory" Masks Retreat: The Lsat, Constitutional Dualism, And The End Of Diversity, D. Marvin Jones

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Making America "The Land Of Second Chances": Restoring Socioeconomic Rights For Ex-Offenders, Deborah N. Archer, Kele Stewart

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Latcrit X Afterword: Beyond The First Decade: A Forward-Looking History Of Latcrit Theory, Community And Praxis, Berta Hernandez-Truyol, Angela Harris, Francisco Valdes

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Supersize Pay, Incentive Compatibility, And The Volatile Shareholder Interest, William Wilson Bratton

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No abstract provided.

The Fall Of Legal Ethics And The Rise Of Risk Management, Anthony V. Alfieri

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No abstract provided.