Law Commons^™

Is The Law Hopeful?, Annelise Riles

Annelise Riles

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this …

Justice In Time, Robert C. Hockett

Robert C. Hockett

Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future. This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational …

Noncomparabilities & Non Standard Logics, Robert C. Hockett

Robert C. Hockett

Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls's selection and characterization of primary goods as the proper distribuendum in any distributively just society. …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

A Summary Reflection On Legal Education, Robert Pascal, Olivier Moreteau

Olivier Moréteau

No abstract provided.

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005. CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

Anti-Constitutional Moments, F.E. Guerra-Pujol

F.E. Guerra-Pujol

My previous paper “Gödel’s Loophole,” 41 Cap. U. L. Rev. 637 (2013) -- which has been downloaded over 3000 times on SSRN and has been featured on such websites as io9 and Hacker News -- has generated extensive commentary from academics and laypersons alike. Because of the interest in the subject matter of my previous paper on “Gödel’s Loophole,” I have written a new paper titled “Anti-Constitutional Moments” in which I combine legal history and constitutional theory in order to explore in detail an intriguing idea I first put forth in my previous work. In summary, previously I retold the …

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

Troubled Waters: Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram

Hadar Aviram

On September 3, 2013, Diana Nyad reported having completed a 110-mile swim from Cuba to Florida. The general enthusiasm about her swim was not echoed in the marathon swimming community, whose members expressed doubts about the integrity and honesty of the swim. The community debate that followed gave rise to the creation of the Global Rules of Marathon Swimming, the first effort to regulate the sport. This Article uses the community’s reaction to Nyad’s deviance to examine the role that crime and deviance plays in the creation and modification of legal structures. Relying on Durkheim’s functionalism theory, the Article argues …

Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas

Jude A Thomas

Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation …

Accountability Before The Fact, Michael R. Dimino Sr.

Michael R Dimino

No abstract provided.

Successions & Donations, J.-R. Trahan

John Randall Trahan

No abstract provided.

Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip

Man YIP

It is trite law that a valid and enforceable contract must be supported by consideration. The recent Court of Appeal case of Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 is a further addition to the local jurisprudence on consideration, specifically the issue of past consideration. This note considers the specific issue of past consideration and argues that its label should be discarded in favour of a more realistic one that correctly emphasises its underlying concerns.

Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones

Brian Christopher Jones

Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.

What Is An Accident?, Daniel B. Yeager

Daniel B. Yeager

Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”

Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of Responsibility …

Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin

Bailey H. Kuklin

No abstract provided.

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch

Michael L Perlin

Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, …

Vulnerability And Power In The Age Of The Anthropocene, Angela Harris

Angela P Harris

No abstract provided.

Legality, Morality, Duality, Joshua Davis

Joshua P. Davis

This Article proposes legal dualism as a novel resolution to one of the central debates in jurisprudence—that between natural law and legal positivism. It holds that the nature of law varies with the purpose for which it is being interpreted. Natural law provides the best account of the law when it serves as a source of moral guidance and legal positivism when it does not. The Article explores dualism by contrasting it with the defense of legal positivism in Scott Shapiro’s justly renowned book, LEGALITY. Shapiro offers arguably the most sophisticated defense of positivism to date. This Article argues that …

American Legal Realism And Practical Guidance, Joshua Davis, Manuel Vargas

Joshua P. Davis

H.L.A. Hart’s well-known rejection of American Legal Realism turned in part on the idea that Realism lacked the resources to provide the sort of guidance that we might reasonably seek from a theory of law. Although Hart's criticisms were widely regarded as devastating, in recent years American Legal Realism has undergone something of a renaissance. The principal architect of that renaissance is Brian Leiter, who has re-established Realism as an important and even indispensable approach to jurisprudence. In this chapter, our aim is to show how, despite its considerable attractions, Leiter’s brand of Legal Realism appears to be in much …

The Limits Of Game Theory On Important Legal Issues, Robert Sanger

Robert M. Sanger

Political strategists often talk in terms of targeting the “persuadable middle.” This term is used regarding volatile issues like same-sex marriage, war, or the death penalty. It is a core feature of undergraduate “game theory” classes taught within Economics departments but it is also a concept that has become a staple of political campaign consultants.

The “persuadable middle” concept is severely flawed in practice. Recent scholarly research has shown that the very fact of utilizing economic “game theory” and concepts like the “persuadable middle” has unintended consequences. By staying away from moral discourse in potentially volatile debates and focusing instead …

Local Government, "One Person, One Vote," And The Jewish Question, Kenneth Stahl

Kenneth Stahl

Enlightenment thinkers were transfixed by “the Jewish Question”– how to incorporate the manifestly unassimilated Jewish community into a modern nation-state predicated on the idea of a uniform and homogenous citizenry. Their solution was to strip the Jewish community of its collective political character and recapitulate the Jews as abstract citizens of the state. Each Jew was henceforth to be “a man on the street and a Jew at home.”

American constitutional law has confronted its own version of the Jewish question in the problematic position of local governments. Like the Jewish ghettos of feudal Europe, cities historically were autonomous corporate …

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Richard Kay

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect—that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or …