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Articles 1 - 30 of 61
Full-Text Articles in Legal History
Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse
Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse
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This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that …
Rejoining Treaties, Jean Galbraith
Rejoining Treaties, Jean Galbraith
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Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer …
The Post-Chicago Antitrust Revolution: A Retrospective, Christopher S. Yoo
The Post-Chicago Antitrust Revolution: A Retrospective, Christopher S. Yoo
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A symposium examining the contributions of the post-Chicago School provides an appropriate opportunity to offer some thoughts on both the past and the future of antitrust. This afterword reviews the excellent papers with an eye toward appreciating the contributions and limitations of both the Chicago School, in terms of promoting the consumer welfare standard and embracing price theory as the preferred mode of economic analysis, and the post-Chicago School, with its emphasis on game theory and firm-level strategic conduct. It then explores two emerging trends, specifically neo-Brandeisian advocacy for abandoning consumer welfare as the sole goal of antitrust and the …
Corporate Governance Beyond Economics, Elizabeth Pollman
Corporate Governance Beyond Economics, Elizabeth Pollman
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In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating …
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
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In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …
Petitioning And The Making Of The Administrative State, Maggie Blackhawk
Petitioning And The Making Of The Administrative State, Maggie Blackhawk
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The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …
Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman
Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman
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Does a business corporation constitute a “person” that can “exercise religion” under the Religious Freedom Restoration Act of 1993? In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court answered this novel question in the affirmative, but this chapter shows that its anemic treatment of corporate law and theory provided little guidance on how to implement and limit the landmark ruling. This chapter critically examines the issues of corporate law and theory driving the Court’s analysis: (1) the theory of the corporation as a right holder; (2) corporate purpose; (3) the “closely held” category; and (4) state corporate law as …
The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman
The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman
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This Article engages the two hundred year history of corporate constitutional rights jurisprudence to show that the Supreme Court has long accorded rights to corporations based on the rationale that corporations represent associations of people from whom such rights are derived. The Article draws on the history of business corporations in America to argue that the Court’s characterization of corporations as associations made sense throughout most of the nineteenth century. By the late nineteenth century, however, when the Court was deciding several key cases involving corporate rights, this associational view was already becoming a poor fit for some corporations. The …
Of Weevils And Witches: What Can We Learn From The Ghost Of Responsibility Past, Kimberly Kessler Ferzan
Of Weevils And Witches: What Can We Learn From The Ghost Of Responsibility Past, Kimberly Kessler Ferzan
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No abstract provided.
Soft Law As Foreign Relations Law, Jean Galbraith, David Zaring
Soft Law As Foreign Relations Law, Jean Galbraith, David Zaring
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The United States increasingly relies on “soft law” and, in particular, on cooperation with foreign regulators to make domestic policy. The implementation of soft law at home is typically understood to depend on administrative law, as it is American agencies that implement the deals they conclude with their foreign counterparts. But that understanding has led courts and scholars to raise questions about whether soft law made abroad can possibly meet the doctrinal requirements of the domestic discipline. This Article proposes a new doctrinal understanding of soft law implementation. It argues that, properly understood, soft law implementation lies at the intersection …
A Corporate Right To Privacy, Elizabeth Pollman
A Corporate Right To Privacy, Elizabeth Pollman
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The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on …
The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp
The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp
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The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. …
Pluralistic Nonoriginalism And The Combinability Problem, Mitchell N. Berman, Kevin Toh
Pluralistic Nonoriginalism And The Combinability Problem, Mitchell N. Berman, Kevin Toh
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No abstract provided.
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman
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No abstract provided.
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
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Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …
Reconceiving Corporate Personhood, Elizabeth Pollman
Reconceiving Corporate Personhood, Elizabeth Pollman
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Why is a corporation a “person” for purposes of the Constitution? This old question has become new again with public outrage over Citizens United, the recent campaign finance case which expanded corporate constitutional speech rights. This Article traces the historical and jurisprudential developments of corporate personhood and concludes that the doctrine’s origins had the limited purview of protecting individuals’ property and contract interests. Over time, the Supreme Court expanded the doctrine without a coherent explanation or consistent approach. The Court has relied on the older cases that were decided in different contexts and on various flawed conceptions of the corporation. …
"Let 'Em Play" A Study In The Jurisprudence Of Sport, Mitchell N. Berman
"Let 'Em Play" A Study In The Jurisprudence Of Sport, Mitchell N. Berman
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No abstract provided.
Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman
Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman
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No abstract provided.
Citizens Not United: The Lack Of Stockholder Voluntariness In Corporatepolitical Speech, Elizabeth Pollman
Citizens Not United: The Lack Of Stockholder Voluntariness In Corporatepolitical Speech, Elizabeth Pollman
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As the Supreme Court reconsiders prior decisions upholding limits on corporate electioneering from general funds, this Essay suggests that the longstanding concern about the lack of stockholder assent to corporate political speech is more compelling than ever. Patterns of U.S. stockholding have significantly changed in the past several decades so as to heighten the concern and caution against a broad overruling of precedents. Stockholders' ability to sell their securities or pursue a derivative action, and other means of "corporate democracy," do not alleviate the concern. A broad decision in favor of Citizens United could leave even stockholders who carefully screen …
Originalism Is Bunk, Mitchell N. Berman
The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter
The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter
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No abstract provided.
The Protestant Revolutions And Western Law, William Ewald
The Protestant Revolutions And Western Law, William Ewald
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No abstract provided.
Managing Gerrymandering, Mitchell N. Berman
Managing Gerrymandering, Mitchell N. Berman
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Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …
Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton
Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton
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No abstract provided.
Guillen And Gullibility: Piercing The Surface Of Commerce Clause Doctrine, Mitchell N. Berman
Guillen And Gullibility: Piercing The Surface Of Commerce Clause Doctrine, Mitchell N. Berman
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In Pierce County v. Guillen, the Supreme Court's most recent Commerce Clause decision, the Court upheld a federal law that protects information compiled or collected by states and localities in connection with federal highway safety programs from being discovered or admitted into evidence in state or federal trials. A short and unanimous decision, Guillen has gone almost entirely unnoticed. This article aims to rectify that oversight. Very simply, Guillen is not the gimme that its length, tone, and reception all conspire to suggest. At the heart of the case is a puzzle. And attempts to unravel that puzzle may substantially …
Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank
Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank
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No abstract provided.
The Conceptual Jurisprudence Of The German Constitution, William Ewald
The Conceptual Jurisprudence Of The German Constitution, William Ewald
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No abstract provided.
Ripstein, Rawls, And Responsibility, Stephen R. Perry
Ripstein, Rawls, And Responsibility, Stephen R. Perry
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No abstract provided.
Human Rights And National Security: The Strategic Correlation, William W. Burke-White
Human Rights And National Security: The Strategic Correlation, William W. Burke-White
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No abstract provided.
The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler
The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler
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Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty …