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Legal Theory Blog 
Thoughts about current developments in normative legal theory and jurisprudence.
Post Frequency: 10.1/day Last Entry: November 20, 2009 at 11:04:12 Recent Entries: 3211
By Larry Solum
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Furnish on Civil Jurisdiction & Tribal Courts
Posted on November 20, 2009Dale Beck Furnish (Arizona State University - College of Law) has posted Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation (American Indian Law Review, Vol. 33, p...
Blogging from Florence: A Room With A Vivew
Posted on November 20, 2009I looking out the window the Seventh Floor of Dennis Patterson's apartment in the center of Florence. I'm hear to give a lecture at the European University Institute--where Patterson holds the Chair in Legal Theory and Legal Philosophy, and I'll...
Shanske on Enqquist v. Oregon Department of Agriculture
Posted on November 20, 2009Darien Shanske (University of California, San Francisco - Hastings College of the Law) has posted Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta (Hastings Law Journal, Forthcoming) on SSRN. Here...
Blank & Guiora on the Law of Armed Conflict & New Warfare
Posted on November 19, 2009Laurie R. Blank and Amos N. Guiora (Emory Law School and University of Utah - S.J. Quinney College of Law) has posted Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare (Harvard National Security...
Conference Announcement: Princeton Graduate Conference in Political Theory
Posted on November 19, 2009Graduate Conference in Political Theory Princeton University 9-10 April 2010 The Committee for the Graduate Conference in Political Theory at Princeton University welcomes papers concerning any period, methodological approach or topic in political theory, political philosophy, or the history of...
Winkler on Free Speech & Federalism
Posted on November 19, 2009Adam Winkler (University of California, Los Angeles - School of Law) has posted Free Speech Federalism (Michigan Law Review, Vol. 108, 2009) on SSRN. Here is the abstract: For decades, constitutional doctrine has held that the Constitution?s guarantee of freedom...
Dimick on Union Democracy
Posted on November 19, 2009Matthew Dimick (Georgetown University Law Center) has posted Revitalizing Union Democracy: Labor Law, Bureaucracy, and Workplace Association on SSRN. Here is the abstract: Do core doctrines of labor-relations law inhibit the internal democratic governance of labor unions in the United...
Bhagat & Romano on Executive Compensation
Posted on November 19, 2009Sanjai Bhagat and Roberta Romano (University of Colorado at Boulder - Department of Finance and Yale Law School) have posted Reforming Executive Compensation: Simplicity, Transparency and Committing to the Long-Term on SSRN. Here is the abstract: This Article advances an...
Shany on Terror, Human Rights, & Humanitarian Law
Posted on November 19, 2009Yuval Shany (Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology) has posted Human Rights and Humanitarian Law As Competing Legal Paradigms for Fighting Terror (COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW, HUMAN RIGHTS AND INTERNATIONAL...
Blank on International Financial Institutions & International Humanitarian Law
Posted on November 19, 2009Laurie R. Blank (Emory Law School) has posted The Role of International Financial Institutions in International Humanitarian Law: A Report from the International Humanitarian Law Working Group on SSRN. Here is the abstract: International financial institutions are increasingly involved in...
Ben-Shahar on Easterbrook on Pre-Closing Liability
Posted on November 18, 2009Omri Ben-Shahar (University of Chicago Law School) has posted Pre-Closing Liability (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract: Two years after Penzoil v. Texaco threatened to burst the seam of contract...
Picker on Easterbrook on Copyright
Posted on November 18, 2009Randal C. Picker (University of Chicago - Law School) has posted Easterbrook on Copyright (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract: In this essay prepared in celebration of Judge Frank Easterbrook?s...
Foley on Privatizing FDA Review of Medical Devices & Drugs
Posted on November 18, 2009Elizabeth P. Foley (Florida International University College of Law) has posted Teaching the Elephant to Dance: Privatizing the FDA Review Process on SSRN. Here is the abstract: Considers the implications of privatizing the Food and Drug Administration's (FDA) review of...
Lambert on Resale Price Maintenance
Posted on November 18, 2009Thomas A. Lambert (University of Missouri - School of Law) has posted A Decision-Theoretic Rule of Reason for Minimum Resale Price Maintenance on SSRN. Here is the abstract: In its 2007 Leegin decision, the U.S. Supreme Court reversed a 96...
Guiora on Comparative Counterterrorism
Posted on November 18, 2009Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Not "By All Means Necessary': A Comparative Framework for Post-9/11 Approaches to Counterterrorism (Case Western Reserve Journal of Int'l Law, Vol. 42, Forthcoming) on SSRN. Here...
Tiersma on Jury Instructions
Posted on November 18, 2009Peter Tiersma (Loyola Law School - Los Angeles) has posted Communicating with Juries: How to Draft More Understandable Jury Instructions on SSRN. Here is the abstract: This manual is intended to provide practical advice to judges and lawyers who need...
Epstein on NRA v. City of Chicago
Posted on November 17, 2009Richard A. Epstein (University of Chicago - Law School) has posted NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook? (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract: In...
Hasen on Campaign Financing for Presidential Election
Posted on November 17, 2009Richard L. Hasen (Loyola Law School - Los Angeles) has posted The Transformation of the Campaign Financing Regime for U.S. Presidential Elections on SSRN. Here is the abstract: Since the mid-1970s, the United States system for the financing of presidential...
Huhn on Slaughterhouse, Bradwell, and Cruikshank
Posted on November 17, 2009Wilson Ray Huhn (University of Akron - School of Law) has posted Legacy of Slaughterhouse, Bradwell and Cruikshank in Constitutional Interpretation (Akron Law Review, Vol. 42, No. 4, 2009) on SSRN. Here is the abstract: The Slaughterhouse Cases, Bradwell v...
Goodrich on Law on the Disciplines
Posted on November 17, 2009Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Intellection and Indiscipline (Journal of Law and Society, Vol. 36, Issue 4, pp. 460-480, December 2009) on SSRN. Here is the abstract: A discipline will usually become the object of...
Mank on Summers v. Earth Island Institute
Posted on November 17, 2009Bradford C. Mank (University of Cincinnati - College of Law) has posted Summers v. Earth Island Institute Rejects Probabilistic Standing, But a 'Realistic Threat' of Harm is a Better Standing Test (Environmental Law, Vol. 40, 2010) on SSRN. Here is...
Schlag on the Logic of Collapse for Realism & Formalism
Posted on November 16, 2009Pierre Schlag (University of Colorado Law School) has posted Formalism and Realism in Ruins (Mapping the Logic of Collapse) (Iowa Law Review, Vol. 95, 2009) on SSRN. Here is the abstract: After laying out a conventional account of the formalism...
Abrams on the Mercer Girls & 19th Century Century Immigration Law
Posted on November 16, 2009Kerry Abrams (University of Virginia School of Law) has posted The Hidden Dimension of Nineteenth-Century Immigration Law (Vanderbilt Law Review, Vol. 62, No. 5, pp. 1353-1418, October 2009) on SSRN.Here is the abstract: This Article challenges the conventional wisdom that...
Sloan on Informal En Banc Review
Posted on November 16, 2009Amy E. Sloan (University of Baltimore - School of Law) has posted The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals (Fordham Law Review, Vol. 78, 2009) on SSRN. Here...
Oliar on the IP Clause
Posted on November 16, 2009Dotan Oliar (University of Virginia School of Law) has posted The (Constitutional) Convention on IP: A New Reading (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract: All have thus far considered the Constitutional Convention?s record on intellectual property...
Westermann on the Forms of Legal Entitlement
Posted on November 16, 2009W. Stephen Westermann has posted Completing the Cathedral Taxonomy of Salient Legal Entitlement Forms: With Application of the New Entitlement Forms to Describe Constitutional Rights, Rationalize the Unconstitutional Conditions Doctrine and Better Understand Legal Personhood on SSRN...
Legal Theory Lexicon: Indeterminacy
Posted on November 15, 2009Introduction It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided?...
Legal Theory Bookworm
Posted on November 14, 2009The Legal Theory Bookworm recommends Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Brian Z. Tamanaha. Here is a description: According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal...
Download of the Week
Posted on November 14, 2009The Download of the Week is Why the EITC Doesn't Make Work Pay by Anne Alstott. Here is the abstract: Since 1975, the earned income tax credit (EITC) has transformed from a small, obscure provision of the federal tax code...
Scott on the Financial Crisis
Posted on November 13, 2009Kenneth E. Scott (Stanford Law School) has posted Lessons from the Crisis on SSRN. Here is the abstract: A lot happened even before the perceived beginning of this crisis in 2007, so although the events are recent, I will give...
Pillsbury on Provocation
Posted on November 13, 2009Samuel H. Pillsbury (Loyola Law School Los Angeles) has posted Misunderstanding Provocation (University of Michigan Journal of Law Reform, Vol. 43, p. 143, 2009) on SSRN. Here is the abstract: This symposium article questions the significance of the partial justification...
Gould on the Standard of Review for Gun Control Laws after Heller
Posted on November 13, 2009Andrew R. Gould (Vanderbilt University School of Law) has posted The Hidden Second Amendment Framework within District of Columbia v. Heller (Vanderbilt Law Review, Vol. 62, No. 5, pp. 1535-1576, 2009) on SSRN. Here is the abstract: In District of...
Pozen on Government Secrecy
Posted on November 13, 2009David Pozen has posted Deep Secrecy (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract: This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been...
Book Announcement: Health, Luck, and Justice by Segall
Posted on November 13, 2009Health, Luck, and Justice Shlomi Segall To read the entire book description or the introduction, please visit: http://press.princeton.edu/titles/9043.html "Luck egalitarianism"--the idea that justice requires correcting disadvantages resulting from brute luck--has gained ground in recent years and is now the main...
Fakhri on WTO Legitimacy
Posted on November 13, 2009Michael Fakhri (University of Toronto - Faculty of Law) has posted Reconstructing the WTO Legitimacy Debates Towards Notions of Development on SSRN. Here is the abstract: his paper explicates competing conceptions of the WTO by examining the relationship between the...
Lepore on the History of the Solicitor General's Advisory Role
Posted on November 13, 2009Stefanie Lepore (George Washington University - Law School) has posted The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General (Journal of Supreme Court History, December 2010) on SSRN. Here is the abstract: The...
Bodansky on Non-Treaty Norms
Posted on November 13, 2009Daniel Bodansky (University of Georgia Law School) has posted Prologue to a Theory of Non-Treaty Norms (Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, M. Arsanjani, J. Cogan, R. Sloane & S. Wiessner, eds.,...
Alstott on the Earned Income Tax Credit
Posted on November 12, 2009Anne Alstott (Harvard University - Harvard Law School) has posted Why the EITC Doesn't Make Work Pay (Journal of Law and Contemporary Problems, 2009) on SSRN. Here is the abstract: Since 1975, the earned income tax credit (EITC) has transformed...
Faure & Fiore on the Nuclear Liability Subsidy
Posted on November 12, 2009Michael G. Faure and Karine Fiore (University of Maastricht - Faculty of Law, Metro and Centre d'Analyse Economique) have posted An Economic Analysis of the Nuclear Liability Subsidy (Pace Environmental Law (PELR) Review, Vol. 26, No. 2, 2009) on SSRN...
Bommarito & Katz on the United States Code Citation Network
Posted on November 12, 2009Michael James Bommarito II and Daniel Martin Katz have posted Properties of the United States Code Citation Network (University of Michigan at Ann Arbor - Department of Political Science and University of Michigan Law School) on SSRN. Here is the...
Garcia & Tor on the N-effect
Posted on November 12, 2009Stephen M. Garcia and Avishalom Tor (University of Michigan and University of Haifa - Faculty of Law) have posted The N-Effect: Beyond Winning Probabilities (Psychological Science, Forthcoming) on SSRN. Here is the abstract: The N-effect reveals that the motivation to...
Raffield on Titus Adronicus & English Common Law
Posted on November 12, 2009Paul Raffield (The University of Warwick - School of Law) has posted ?Terras Astraea reliquit?: Titus Andronicus and the Loss of Justice (SHAKESPEARE AND THE LAW, pp. 203-220, Paul Raffield and Gary Watt, eds., Hart, 2008, Warwick School of Law...
Craig on the Legitimacy of Judicial Review & Political Constitutionalism
Posted on November 12, 2009Paul P. Craig (University of Oxford - Faculty of Law) has posted Political Constitutionalism and Judicial Review (EFFECTIVE JUDICIAL REVIEW: A CORNERSTONE OF GOOD GOVERNANCE, C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, M. Ramsden, eds., Oxford University Press, Forthcoming)...
Dinwoodie on Trademark Law, Common Law, and Statutes
Posted on November 11, 2009Graeme B. Dinwoodie (University of Oxford - Faculty of Law) has posted The Common Law and Trade Marks in an Age of Statutes (THE COMMON LAW OF INTELLECTUAL PROPERTY: ESSAYS IN HONOUR OF PROFESSOR DAVID VAVER, Bently, Ng & D'Agostino,...
Tschentscher on International & Comparative Constitutional Law
Posted on November 11, 2009Axel Tschentscher (Bern University - School of Law) has posted Comparing Constitutions and International Constitutional Law: A Primer on SSRN. Here is the abstract: While comparing constitutions belongs to the ubiquitous activities of both constitutional lawyers and political scientists, the...
Meuwese, Schuurmans, and Voermans on an European APA
Posted on November 11, 2009Anne Meuwese, Ymre Schuurmans and Wim J. M. Voermans (University of Antwerp, Faculty of Law , Leiden University and Leiden University - Leiden Law School) have posted Towards a European Administrative Procedure Act on SSRN. Here is the abstract: Under...
O'Hanlon on Federalist 37
Posted on November 11, 2009Stephen T. O'Hanlon (Temple University) has posted Federalist 37: Man, Language, and Theory on SSRN. Here is the abstract: This paper discusses key issues derived from the often-overlooked Federalist 37 written by James Madison, the author of the United States...
Baker on "The Constitution in 2020"
Posted on November 11, 2009Thomas E. Baker (Florida International University - College of Law) has posted Book Review: 'The Constitution in 2020," Jack M. Balkin & Reva B. Siegel, Eds. (American Journal of Legal History, Forthcoming) on SSRN. Here is the abstract: Professors Balkin...
Duffy on Rules & Standards in Patent Law
Posted on November 11, 2009John F. Duffy (George Washington University - Law School) has posted Rules and Standards on the Forefront of Patentability (William & Mary Law Review, Vol. 51, No. 2, 2009) on SSRN. Here is the abstract: Courts and legislatures face a...
Beilis, Garber, and Stein on Plagerism by Bernard Malamud
Posted on November 10, 2009Jay Beilis, Jeremy Simcha Garber, and Mark S. Stein (Harvard Law School, Petrie-Flom Center) have posted Pulitzer Plagiarism: The Malamud-Beilis Connection (Cardozo Law Review de novo) on SSRN. Here is the abstract: In writing The Fixer, Bernard Malamud plagiarized from...
Call for Papers: Graduate Conference for Legal Theory at McMaster
Posted on November 10, 2009McMaster University Graduate Conference for Legal Theory Hosted by McMaster University?s Philosophy Department March 5-7, 2010 at McMaster University, Hamilton, ON Keynote Speaker: Andrei Marmor (USC), Wil Waluchow (McMaster) Conference fee: $20.00 Call for Papers We are currently accepting submissions...
Brooks on Held on Terrorism
Posted on November 10, 2009Thom Brooks (Newcastle University - Newcastle Law School) has posted Justifying Terrorism on SSRN. Here is the abstract: Virginia Held?s recent How Terrorism is Wrong offers us any number of important contributions to how we think about terrorist violence...
Fred Zacharias
Posted on November 10, 2009I am saddened to report the passing of my former colleague at the University of San Diego, Fred Zacharias. Fred was a prominent, prolific, and intelligent scholar, specializing in legal ethics and professional responsibility. Fred combined a keen intellect, a...
Seligmann on the Spending Clause
Posted on November 10, 2009Terry Jean Seligmann (Drexel University - Earle Mack School of Law) has posted Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract: The vital role...
Horwitz on Democracy, the Rule of Law, and the Bush Administration
Posted on November 10, 2009Paul Horwitz (University of Alabama School of Law) has posted Democracy as the Rule of Law (PROSECUTING THE BUSH ADMINISTRATION: WHAT DOES THE RULE OF LAW REQUIRE? Nasser Hussain & Austin Sarat, eds., Forthcoming) on SSRN. Here is the abstract:...
Bezdek on Alinsky & Law
Posted on November 10, 2009Barbara L. Bezdek (University of Maryland - School of Law) has posted Alinksy's Prescription: Democracy Alongside Law (John Marshall Law Review, Vol. 42, 2009) on SSRN. Here is the abstract: This Article examines the import of the life?s work of...
Erichson on the Adjudication-Settlement Divide
Posted on November 10, 2009Howard M. Erichson (Fordham University - School of Law) has posted Foreword: Reflections on the Adjudication-Settlement Divide (Fordham Law Review, Vol. 78, p. 101, 2009) on SSRN. Here is the abstract: This Foreword introduces the papers of the 2009 Fordham...
Fang on Ordinances Forbidding Feeding the Homeless
Posted on November 09, 2009Anyu Fang (Stanford Law School) has posted Hiding Homelessness: 'Quality of Life' Laws and the Politics of Development in American Cities (International Journal of Law in Context, Vol. 5, No.1 pp. 1-24, 2009) on SSRN. Here is the abstract: An...
Engle on Remote Noninvasive Searches and the 4th Amendment
Posted on November 09, 2009Eric Engle (Universität Bremen and Harvard University - Harvard Law School) has posted New Technologies and the Fourth Amendment on SSRN. Here is the abstract: Examines fourth amendment in the context of new technologies which allow remote uninvasive searches
Bix on the Harm Principle & Contract
Posted on November 09, 2009Brian Bix (University of Minnesota Law School) has posted Contract Enforcement and the Harm Principle on SSRN. Here is the abstract: According to some prominent commentators, John Stuart Mill?s ?Harm Principle? raises important challenges to how we should understand contract...
Corrado on Freedom and Determinism
Posted on November 09, 2009Michael L. Corrado (University of North Carolina at Chapel Hill - School of Law) has posted Compatibilism, Hard Incompatibilism, and Responsibility (Essays in Philosophy, Vol. 10, No. 1, 2009) on SSRN. Here is the abstract: This is an extended review...
Perry on Liberalism, Vatican II, and Religious Freedom
Posted on November 09, 2009Michael J. Perry (Emory University School of Law) has posted Liberal Democracy and the Right to Religious Freedom (The Review of Politics, Vol. 71, pp. 1-15, 2009) on SSRN. Here is the abstract: The Roman Catholic Church was famously late...
Legal Theory Lexicon: Strict Construction and Judicial Activism
Posted on November 08, 2009Introduction This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that (arguably) are unimportant (or even meaningless), strict....
Legal Theory Bookworm
Posted on November 07, 2009The Legal Theory Bookworm recommends The Perils of Global Legalism by Eric A. Posner. Here is a description: The first months of the Obama administration have led to expectations, both in the United States and abroad, that in the coming...
Download of the Week
Posted on November 07, 2009The Download of the Week is Constitutional Expectations by Richard Primus. Here is the abstract: This essay uses the restaging of the Oath of Office after the public inauguration of President Barack Obama to explain how and why it can...
MacDowell on Domestic Violence Courts
Posted on November 07, 2009Elizabeth L. MacDowell (Chapman University School of Law) has posted When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism (Chapman Journal of Criminal Justice, Vol 1, No. 2, 2010) on SSRN. Here is the abstract: cholarship about domestic violence-related...
Larson on the Right of Publicity & the Nathan Leopold Case
Posted on November 06, 2009Edward Larson (Pepperdine University School of Law) has posted Murder Will Out: Rethinking the Right of Publicity Through One Classic Case (Rutgers Law Review, Vol. 26, No. 1, 2009) on SSRN. Here is the abstract: In this forthcoming article, the...
O'Hanlon on Free Will in Criminal Law
Posted on November 06, 2009Stephen O'Hanlon (Temple University) has posted Towards a More Reasonable Approach to Free Will in Criminal Law (Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 2, 2009) on SSRN. Here is the abstract: This paper questions criminal law's...
Monateri on Law and Language
Posted on November 06, 2009P. G. Monateri (University of Torino, School of Law) has posted 'Cunning Passages': Traductology, Comparison and Ideology in the Law and Language Story on SSRN. Here is the abstract: My standpoint in this paper is that in affording the subject...
Rothstein on Equality & Genetics
Posted on November 06, 2009Mark A. Rothstein (University of Louisville - Institute for Bioethics, Health Policy, and Law) has posted Legal Conceptions of Equality in the Genomic Age (Law & Inequality, Vol. 25, pp. 429-463) on SSRN. Here is the abstract: This article presents...
Faundez on International Economics Law & Development
Posted on November 06, 2009Julio Faundez (University of Warwick - School of Law) has posted International Economic Law and Development before and after Neo-Liberalism (INTERNATIONAL LAW, ECONOMIC GLOBALIZATION AND DEVELOPMENT, Julio Faundez, Celine Tan, eds., E. Elgar, 2010) on SSRN...
Fish on the International Criminal Court & Uganda
Posted on November 05, 2009Eric S. Fish (Yale University - Law School) has posted Peace through Complementarity: The Uganda Case and the Ex Post Problem in International Criminal Court Indictments (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract: This Comment analyzes the...
Posner on ProCD v. Zeidenberg
Posted on November 05, 2009Eric A. Posner (University of Chicago - Law School) has posted ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract: Judge Frank Easterbrook?s opinion...
Henderson on Jones v. Harris Associates
Posted on November 05, 2009M. Todd Henderson (University of Chicago - Law School) has posted Justifying Jones (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract: This essay considers Judge Easterbrook's opinion in Jones v. Harris Associates in celebration of his...
O'Hara & Ribstein on Conflict of Laws
Posted on November 05, 2009Erin A. O'Hara and Larry E. Ribstein (Vanderbilt University School of Law and University of Illinois College of Law) have posted Conflict of Laws and Choice of Law on SSRN. Here is the abstract: In this revised entry for a...
Roosevelt on Tribe on the "invisible" Constitution
Posted on November 05, 2009Kermit Roosevelt III (University of Pennsylvania Law School) has posted The Indivisible Constitution (Constitutional Commentary, Vol. 25, Pg. 321, 2009) on SSRN. Here is the abstract: In The Invisible Constitution, Laurence Tribe argues that many of our most deeply-held constitutional...
Johns on Stone
Posted on November 05, 2009Fleur E. Johns (Sydney Law School) has posted The Gift of Realism: Julius Stone and the International Legal Academy in Australia (JULIUS STONE: A STUDY IN INFLUENCE, H Irving, J Mowbray & K Walton, eds., Federation Press, Sydney) on SSRN....
Cohen on Fiss on Settlement
Posted on November 04, 2009Amy J. Cohen (Ohio State University Moritz College of Law) has posted Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values (Fordham Law Review, Vol. 78, p. 101, 2009) on SSRN. Here is the abstract: Critics of Owen...
Hirtle, Hudson, and Kenyon on Digitilization for Libraries, Archives, and Museums
Posted on November 04, 2009Peter B. Hirtle, Emily Hudson and Andrew T. Kenyon (Cornell University Library , University of Melbourne - Law School and University of Melbourne Law School) have posted Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums...
Cserne on an Economic Analysis of Duress in Contracts
Posted on November 04, 2009Péter Cserne (Tilburg Law and Economics Center) has posted Duress in Contracts: An Economic Analysis on SSRN. Here is the abstract: The purpose of this paper is to provide an overview of the economic analysis of contractual duress. The focus...
Lund on Hambruger
Posted on November 04, 2009Nelson Lund (George Mason University School of Law) has posted Judicial Review and Judicial Duty: The Original Understanding (Constitutional Commentary, Forthcoming) on SSRN. Here is the abstract: What we call ?judicial review? was not established in Marbury v...
Primus on Constitutional Expectations
Posted on November 04, 2009Richard Primus (University of Michigan Law School) has posted Constitutional Expectations on SSRN. Here is the abstract: This essay uses the restaging of the Oath of Office after the public inauguration of President Barack Obama to explain how and why...
Gilles on Small-Claims Consumer Class Actions
Posted on November 04, 2009Myriam E. Gilles (Benjamin N. Cardozo School of Law) has posted Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions (Cardozo Legal Studies Research Paper No. 278, DePaul Law Review, Vol. 59, No. 2, 2009) on SSRN. Here is...
Darwall on the Form & Substance of Moral Obligation
Posted on November 03, 2009Stephen Darwall (Yale University) has a new paper, Moral obligation: form and substance, available on the Aristotelian Society's website. Here is a taste from the introduction: I believe it is possible to make an argument from the form that moral...
Ramsay on the Wrongness of Anti Social Behavior Order Violations
Posted on November 03, 2009Peter Ramsay (London School of Economics - Law Department) has posted Why Is it Wrong to Breach an ASBO? on SSRN. Here is the abstract: This article reviews the case law on the offence of breach of an ASBO and...
Kochan on Black Tuesday & Regulation of Financial Markets
Posted on November 03, 2009Donald J. Kochan (Chapman University - School of Law) has posted Black Tuesday and the Graying of the Legitimacy of Governmental Intervention: When Tomorrow is Just a Future Yesterday (NEXUS Law Journal, Vol. 15, 2009) on SSRN. Here is the...
Halberstam and Möllers on the German Constitutional Court on the Lisbon Treaty
Posted on November 03, 2009Daniel Halberstam and Christoph Möllers (University of Michigan Law School and University of Goettingen) have posted The German Constitutional Court Says 'Ja Zu Deutschland!' (German Law Journal, Vol. 10, No. 8, 2009) on SSRN. Here is the abstract: In announcing...
Book Announcement: On Civic Friendship: Including Women in the State by Schwarzenbach
Posted on November 03, 2009Columbia University Press is pleased to announce the publication of Sibyl Schwarzenbach's On Civic Friendship: Including Women in the State. In this innovative new work Schwarzenbach argues that women have performed the vast majority of often unpaid friendship labor for...
Symposium on Calabresi
Posted on November 03, 2009Here are links to the papers: Roger van den Bergh (Erasmus University Rotterdam (EUR) - Erasmus School of Law), Introduction: The Impact of Guido Calabresi on Law and Economics Scholarship (Erasmus Law Review, Vol. 1, No. 4, 2008) Roberto Pardolesi...
Miller on the Corporate Law Background of the Necessary & Proper Clause
Posted on November 03, 2009Geoffrey P. Miller (New York University - School of Law) has posted The Corporate Law Background of the Necessary and Proper Clause on SSRN. Here is the abstract: his paper investigates the corporate law background of the Necessary and Proper...
Lehavi on Taxing & Taking
Posted on November 02, 2009Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Taking/Taxing Taxonomy (Texas Law Review, Vol. 88, No. 6, 2010) on SSRN. Here is the abstract: Takings jurisprudence is engaged in a constant paradox. It is conventionally...
Robson on Compulsory Matrimony
Posted on November 02, 2009Ruthann Robson (City University of New York - CUNY School of Law) has posted Compulsory Matrimony (Feminist and Queer Legal Theory, pp. 315-328, Ashgate 2009) on SSRN. Here is the abstract: In 1980, feminist and lesbian theorist Adrienne Rich published...
Leckey on the Limits of Canadian Charter Rights
Posted on November 02, 2009Robert Leckey (McGill University - Faculty of Law) has posted Language and Judgment?s Reach: Reflecting on Limits on Rights (University of Toronto Law Journal, Vol. 60, 2010) on SSRN. Here is the abstract: This is a review essay on The...
Krisch on GMOs, Trade, and Global Risk Regulations
Posted on November 02, 2009Nico Krisch (Hertie School of Governance) has posted Pluralism in Global Risk Regulation: The Dispute over GMOs and Trade on SSRN. Here is the abstract: Debates about the construction of postnational law and global governance are usually dominated by a...
Shawhan on Birthright Citizenship & the 14th Amendment
Posted on November 02, 2009Mark Shawhan (Yale Law School) has posted Domicile and Birthright Citizenship (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract: This Comment argues that the contemporary debate on the meaning of the Citizenship Clause of the Fourteenth Amendment has...
Legal Theory Lexicon: Hohfeld
Posted on November 01, 2009Introduction You need to know Hohfeld! Why? Because W.N. Hohfeld?s typology of rights from his book Fundamental Legal Conceptions is, well, fundamental. And useful! Law students encounter the idea of right (moral or legal) early and often. But ?rights talk?...
Legal Theory Bookworm
Posted on October 31, 2009The Legal Theory Bookworm recommends The Idea of Human Rights by Charles R. Beitz. Here is a description: The international doctrine of human rights is one of the most ambitious parts of the settlement of World War II. Since then,...
Download of the Week
Posted on October 31, 2009The Download of the Week is Placeholders: Engaging the Hayekian Critique of Financial Regulation by Annelise Riles. Here is the abstract: Since Friedrich Hayek, debates about the proper relationship between the state and the market, and about the optimal design...
Pether on the Constitutionality of Nonprecedential Status Rules
Posted on October 30, 2009Penelope Pether (Villanova University School of Law) has posted Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits? Nonprecedential Status Rules are (Profoundly) Unconstitutional (William & Mary Bill of Rights, Vol...
Bix on Theorizing About Law
Posted on October 30, 2009Brian Bix (University of Minnesota Law School) has posted Theorizing About Law (Analisi e diritto, Forthcoming) on SSRN. Here is the abstract: To answer methodological questions about whether legal theory can be descriptive, or whether instead it must instead always...
Primus on Dispare Impact & Equal Protection
Posted on October 30, 2009Richard Primus (University of Michigan Law School) has posted The Future of Disparate Impact (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract: The Supreme Court's decision in Ricci v. DeStefano (i.e., the New Haven firefighters case) foregrounded the...
Solum on District of Columbia v. Heller & Originalism
Posted on October 30, 2009Lawrence B. Solum (University of Illinois College of Law) has posted District of Columbia v. Heller and Originalism (Northwestern University Law Review, Vol. 103, No. 2, 2009) on SSRN. Here is the abstract: On June 26, 2008, the United States...
Miller on Fact-Finding in Corporate Charitable Giving Cases
Posted on October 30, 2009Geoffrey P. Miller (New York University - School of Law) has posted Narrative and Truth in Judicial Opinions: Corporate Charitable Giving Cases on SSRN. Here is the abstract: Judicial opinions map events into narrative. Errors in mapping are inevitable but...
Mayeda on Democracy & International Investment Law
Posted on October 30, 2009Graham Mayeda (University of Ottawa - Faculty of Law - Common Law Section) has posted Investing in Development: The Role of Democracy and Accountability in International Investment Law (Alberta Law Review, Vol. 46, No. 6, 2009) on SSRN. Here is...
Samuelson & Bebenek on Irreperable Harm in Copyright Injunction Cases
Posted on October 29, 2009Pamela Samuelson and Krzysztof Bebenek (UC Berkeley School of Law and University of California, Berkeley) have posted Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases (Journal of Law & Policy for the Information Society, Vol...
Dolovich on Cruel & Unusual Punishment
Posted on October 29, 2009Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Cruelty, Prison Conditions, and the Eighth Amendment (New York University Law Review, Vol. 84, 2009) on SSRN. Here is the abstract: The Eighth Amendment prohibits cruel and...
Smith on Transaction Cost Economics
Posted on October 29, 2009D. Gordon Smith (Brigham Young University - J. Reuben Clark Law School) has posted Legal Precursors of Transaction Cost Economics (THE ELGAR COMPANION TO TRANSACTION COST ECONOMICS, Peter Klein, ed., 2009) on SSRN. Here is the abstract: In this essay,...
Miller on the Duty of Care for Corporate Boards in Delaware
Posted on October 29, 2009Geoffrey P. Miller (New York University - School of Law) has posted A Modest Proposal for Fixing Delaware?s Broken Duty of Care on SSRN. Here is the abstract: This paper proposes that Delaware could improve on existing, ineffective judicial mechanisms...
Imwinkelreid on Shaken Baby Syndrome Experts
Posted on October 29, 2009Edward J. Imwinkelreid (University of California, Davis - School of Law) has posted Shaken Baby Syndrome: A Genuine Battle of the Scientific (and Non-Scientific) Experts on SSRN. Here is the abstract: The national campaign against child abuse has changed the...
Scott on Hoffman v. Red Owl Stores
Posted on October 29, 2009Robert E. Scott (Columbia University - Law School) have posted Hoffman v. Red Owl Stores and the Limits of the Legal Method on SSRN. Here is the abstract: According to the overwhelming majority view, promissory estoppel is not an appropriate...
Siebecker on Fiduciary Duties & Corporate Communication
Posted on October 29, 2009Michael R. Siebecker (University of Florida - Fredric G. Levin College of Law) has posted Trust & Transparency: Promoting Efficient Corporate Disclosure Through Fiduciary-Based Discourse (Washington University Law Review, Vol. 87, No. 1, pp. 115-174, 2009) on SSRN...
Balkin on Scalia, Originalism, and Race
Posted on October 28, 2009Check on Jack Balkin's post, Scalia's Biggest Problem isn't Brown, It's Bolling and Loving, over at Balkinization. Here is a taste: The framers of the the Fourteenth and Fifteenth Amendments believed that these amendments guaranteed blacks civil equality and political...
Thomas on Iqbal & Twombly
Posted on October 28, 2009Suja A. Thomas (University of Illinois College of Law) has posted The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly on SSRN. Here is the abstract: Civil procedure scholars have extensively discussed the new 12(b)(6) standard...
Schauer on the Obligation to Obey the Law
Posted on October 28, 2009Frederick Schauer (University of Virginia School of Law) has posted When and How (If at All) Does Law Constrain Official Action? (The Sibley Lecture) (Georgia Law Review, Vol. 45, No. 1, 2010) on SSRN. Here is the abstract: Debates about...
Johnson on Heller & Assault Weapons
Posted on October 28, 2009Nicholas James Johnson (Fordham University - School of Law) has posted Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons, and the Attitudinalist Critique (60 Hastings Law Journal 1285 (2009), Hastings Law Journal, Vol...
Philippopoulos-Mihalopoulos on Decolinization of Legal Knowledge
Posted on October 28, 2009Andreas Philippopoulos-Mihalopoulos (University of Westminster) has posted The Successful Failing of Legal Theory (Decolonisation of Legal Knowledge) (DECOLONISATION OF LEGAL KNOWLEDGE, A. Parashar and A. Dhanda, eds., London: Routledge, 2009) on SSRN...
Fox-Decent on Common Law Constitutionalism
Posted on October 28, 2009Evan Fox-Decent (McGill University - Faculty of Law) has posted Democratizing Common Law Constitutionalism on SSRN. Here is the abstract: Underlying Rand J?s judgment in Roncarelli v. Duplessis is a vision of public law with significant implications for how we...
Riles on Hayekian Critiques of Financial Regulation
Posted on October 27, 2009Annelise Riles (Cornell University - School of Law ) has posted Placeholders: Engaging the Hayekian Critique of Financial Regulation (Annelise Riles, COLLATERAL KNOWLEDGE: LEGAL REASONING IN THE GLOBAL FINANCIAL MARKETS, Chapter 5, Forthcoming) on SSRN...
Del Mar on Learning & Unlearing in the Legal Academy
Posted on October 27, 2009Maksymilian T. Del Mar (Faculty of Social and Political Sciences, University of Lausanne) has posted Learning and Unlearning in the Legal Academy on SSRN. Here is the abstract: This paper argues that education, at its best, is based on a...
Stein & Savulescu on Welfare & Autonomy in Human Subjects Research
Posted on October 27, 2009Mark S. Stein (Harvard Law School, Petrie-Flom Center) & Julian Savulescu (University of Oxford - Uehiro Centre for Practical Ethics) have posted Welfare Versus Autonomy in Human Subjects Research on SSRN. Here is the abstract: Autonomy is commonly seen as...
Farnsworth, Guzior, and Malani on Legal Interpretation
Posted on October 27, 2009Ward Farnsworth, Dustin F. Guzior and Anup Malani (Boston University School of Law, Boston University School of Law and University of Chicago - Law School) have posted Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation (The Journal of Legal...
Johns on International Legal Personality
Posted on October 27, 2009Fleur E. Johns (Sydney Law School) has posted International Legal Personality (INTERNATIONAL LEGAL PERSONALITY, Fleur Johns, ed., Ashgate: UK, 2010) on SSRN. Here is the abstract: Who or what is entitled to act on the international plane? Where should responsibility...
Fink on Unintended Consequences of Antidiscrimination Legislation
Posted on October 26, 2009Jessica Fink (California Western School of Law) has posted Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants (New Mexico Law Review, Vol. 38, No. 2, 2008) on SSRN. Here is the abstract: In recent years, employees have turned...
Peters on Global Constitutionalism
Posted on October 26, 2009Anne Peters (University of Basel - Faculty of Law) has posted The Merits of Global Constitutionalism (Indiana Journal of Global Legal Studies, Vol. 16, No. 2, 2009) on SSRN. Here is the abstract: Global constitutionalism is an agenda that identifies....
Kapteyn, Smith, & van Soest on Life Satisfaction
Posted on October 26, 2009Arie Kapteyn, James P. Smith, & Arthur van Soest (RAND Corporation, RAND Corporation, & RAND Corporation) have posted Comparing Life Satisfaction on SSRN. Here is the abstract: This paper analyzes the determinants of global life satisfaction in two countries (The...
Kuo on Kingsbury on Global Administrative Law
Posted on October 26, 2009Ming-Sung Kuo (Yale University - Law School) has posted Inter-Public Legality or Post-Public Legitimacy? A Response to Professor Kingsbury?s Conception of Global Administrative ?Law? (European Journal of International Law, Forthcoming) on SSRN. Here is the abstract: Departing from the Westphalian...
Collins on Holmes & the First Amendment
Posted on October 26, 2009Ronald K. L. Collins (First Amendment Center) has posted Prologue: Justice Holmes - Father of the Modern First Amendment on SSRN. Here is the abstract: Prologue from 'The Fundamental Holmes: A Free Speech Chronicle & Reader' - Selections from the...
Legal Theory Lexicon: Holism
Posted on October 25, 2009Introduction Our topic this week is ?holism,? more particularly the idea that theories of the law are (or ?should be? or ?can be?) holistic. Legal holism can be captured in a famous slogan, ?The law is a seamless web,? and...
Banakar on Kafka's Conceptions of Law
Posted on October 24, 2009Reza Banakar (University of Westminster - School of Law) has posted In Search of Heimat: A Note on Franz Kafka?s Concept of Law (Law and Literature, Vol. 22, Summer 2010) on SSRN. Here is the abstract: Are Franz Kafka?s descriptions...
Legal Theory Bookwrom
Posted on October 24, 2009The Legal Theory Bookworm recommends The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution by Barry Friedman. Here is a description: In recent years, the justices of the Supreme...
Download of the Week
Posted on October 24, 2009The Download of the Week is Two Ways to Think About the Punishment of Corporations by Albert W. Alschuler. Here is the abstract: This article compares the criminal punishment of corporations in the twenty-first century with two ancient legal practices...
Robinson on Excuses & Blameless Offenders
Posted on October 23, 2009Paul H. Robinson (University of Pennsylvania Law School) has posted A System of Excuses: How Criminal Law?s Excuse Defenses Do, and Don?t, Work Together to Exculpate Blameless (and Only Blameless) Offenders on SSRN. Here is the abstract: Criminal law excuses...
Marchant, Abbott, and Danforth on International Harmonization of Nanomedicine Regulation
Posted on October 23, 2009Gary E. Marchant, Douglas J. Sylvester, Kenneth W. Abbott and Tara Lynn Danforth (Arizona State University - College of Law , Arizona State University - College of Law , Arizona State University - College of Law and Center for Law,...
Omarova on the Office of the Comproller of the Currencies & Derivative Trading by Banks
Posted on October 23, 2009Saule T. Omarova (University of North Carolina at Chapel Hill School of Law) has posted The Quiet Metamorphosis: How Derivatives Changed the 'Business of Banking' (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract: This Article uncovers...
Hayward on Hindman on Digital Democracy
Posted on October 23, 2009Allison Hayward (George Mason University School of Law) has posted Book Review: "The Myth of Digital Democracy", by Matthew Hindman (Green Bag, Forthcoming) on SSRN. Here is the abstract: Matthew Hindman, a professor of political science at Arizona State University,...
d'Aspremont on Hart & International Law
Posted on October 23, 2009Jean d'Aspremont (University of Amsterdam) has posted Hart and Postmodern Positivism in International Law (Revue générale de droit international public, Vol. 113, pp. 635-654, 2009) on SSRN. Here is the abstract: This article argues that, in the context of international...
Alschuler on Punishing Corporations
Posted on October 23, 2009Albert W. Alschuler (Northwestern University - School of Law) has posted Two Ways to Think About the Punishment of Corporations (American Criminal Law Review, 2009) on SSRN. Here is the abstract: This article compares the criminal punishment of corporations in...
Grundfest on the Proposed Proxy Access Rules
Posted on October 22, 2009Joseph Grundfest (Stanford University Law School) has posted The SEC's Proposed Proxy Access Rules: Politics, Economics, and the Law on SSRN. Here is the abstract: The Securities and Exchange Commission has proposed proxy rules mandating shareholder access under conditions that...
Margulies on Detention Policy after Guantanamo
Posted on October 22, 2009Peter Margulies (Roger Williams University School of Law) has posted Putting Guantanamo in the Rear-View Mirror: Conflicting Values and Crossed Signals in Detention Policy on SSRN. Here is the abstract: National security policy often emerges in the signals presidents send...
Rotunda on Procedural Rules Governing Military Trials
Posted on October 22, 2009Kyndra K. Rotunda (Chapman University - School of Law) has posted A Comparative Historical Analysis of War Time Procedural Protections and Presidential Powers: From the Civil War to the War on Terror (Chapman Law Review, Vol. 12, No. 449, 2009)...
Alstott on Family Law as Social Insurance
Posted on October 22, 2009Anne Alstott (Harvard University - Harvard Law School) has posted Private Tragedies? Family Law as Social Insurance on SSRN. Here is the abstract: Family law is full of private tragedy. Case after case pits one family member against another in...
Snyder on the Julius & Ethel Rosenberg Case in the Supreme Court
Posted on October 22, 2009Brad Snyder (University of Wisconsin Law School) has posted Taking Great Cases: Lessons from the Rosenberg Case (Vanderbilt Law Review, May 2010) on SSRN. Here is the abstract: The most watched case of the 1952 Supreme Court Term was not...
Conference Announcement: Religious Legal Theory at Seton Hall
Posted on October 22, 2009?Religious Legal Theory: The State of the Field? Seton Hall University School of Law Newark, New Jersey Thursday-Friday, November 12-13, 2009 Seton Hall Law School will host Religious Legal Theory: The State of the Field, a conference to assess the...
Falco on International Humanitarian Law & the EU
Posted on October 22, 2009Valentina Falco has posted The Internal Legal Order of the European Union As a Complementary Framework For its Obligations Under IHL (Israel Law Review, Vol. 42, No. 1, pp. 168-205, 2009) on SSRN. Here is the abstract: When exploring the...
Ward on Law & Terrorism
Posted on October 21, 2009Ian Ward (University of Newcastle upon Tyne - Faculty of Law) has posted Law, Text, Terror (LAW, TEXT, TERROR, Cambridge University Press, Forthcoming) on SSRN. Here is the abstract: The relationship between law and terrorism has re-emerged recently as a...
Dauvergne on Globalization & Immigration
Posted on October 21, 2009Catherine Dauvergne (University of British Columbia - Faculty of Law) has posted Making People Illegal: What Globalization Means for Migration and Law (MAKING PEOPLE ILLEGAL: WHAT GLOBALIZATION MEANS FOR MIGRATION AND LAW, Cambridge University Press, 2008) on SSRN...
Zuckerman on English-Only Laws & Voting Materials
Posted on October 21, 2009Michael A. Zuckerman (Cornell University) has posted Constitutional Clash: When English-Only Meets Voting Rights (Yale Law & Policy Review, Vol. 28, 2010) on SSRN. Here is the abstract: This paper examines the constitutional vulnerability of English-only laws as they relate...
Wilde on Occupation Law & Human Rights
Posted on October 21, 2009Ralph Wilde (University College London - Faculty of Laws) has posted Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms (Israel Law Review, Vol. 42(1), pp. 80-100, 2009) on SSRN. Here is the abstract: This Article...
Kjaer on the Habermas-Luhmann Debate
Posted on October 21, 2009Poul F. Kjaer (Goethe University Frankfurt) has posted Systems in Context: On the Outcome of the Habermas/Luhmann-Debate (Ancilla Iuris, Vol. 66, 2006) on SSRN. Here is the abstract: Usually regarded as a 1970s phenomenon, this article demonstrates that the debate...
Gibson, Sonis, and Hean on the Rule of Law in Cambodia
Posted on October 21, 2009James L. Gibson, Jeffrey Sonis and Sokhom Hean (Washington University in St. Louis - Department of Political Science , University of North Carolina at Chapel Hill - Department of Social Medicine and Center for Advanced Study) have posted Cambodians? Support...
Twining on General Jurisprudence
Posted on October 21, 2009William Lawrence Twining (University College London - Faculty of Laws) has posted General Jurisprudence: Understanding Law from a Global Perspective (GENERAL JURISPRUDENCE: UNDERSTANDING LAW FROM A GLOBAL PERSPECTIVE, Cambridge University Press, Forthcoming)...
Reich on Subsidiarity, Bilateralism, Multilateralism, & International Economic Law
Posted on October 20, 2009Arie Reich (Bar-Ilan University - Faculty of Law) has posted Bilateralism Versus Multilateralism in International Economic Law: Applying the Principle of Subsidiarity on SSRN. Here is the abstract: This paper proposes a different perspective on the problem of bilateralism versus...
Gibson & Caldeira on Realism & the Legitimacy of the Supreme Court
Posted on October 20, 2009James L. Gibson and Gregory Caldeira (Washington University in St. Louis - Department of Political Science and Ohio State University - Department of Political Science) have posted Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court? on SSRN...
Husa on Comparative Law Methodology
Posted on October 20, 2009Jaakko Husa (University of Joensuu) has posted Farewell to Functionalism or Methodological Tolerance? (Rabels Zeitschrift für ausländisches und internationales Privatrecht, Vol. 67, No. 3, pp. 419-447) on SSRN. Here is the abstract: The academic writing on comparative law can deal...
Manne & Wright on Easterbrook on Antitrust & Innovaton
Posted on October 20, 2009Geoffrey A. Manne & Joshua D. Wright (Lewis & Clark Law School , International Center for Law & Economics and George Mason University School of Law) have posted The Limits of Antitrust in the New Economy on SSRN. Here is...
Lieberman on International Humanitarian Law
Posted on October 20, 2009Michael Lieberman has posted Pragmatism and Principle in International Humanitarian Law (Israel Law Review, Vol. 42, No. 1, pp. 150-167, 2009) on SSRN. Here is the abstract: As we seek to identify new norms to bridge the gaps between extant...
Knauer on Legal Fictions
Posted on October 19, 2009Nancy J. Knauer (Temple University - Beasley School of Law) has posted Legal Fictions and Juristic Truth (St. Thomas Law Review, Vol. 22, 2010) on SSRN. Here is the abstract: The classic legal fiction is a curious artifice of legal...
Land on Networked Activism
Posted on October 19, 2009Molly Beutz Land (New York Law School) has posted Networked Activism (Harvard Human Rights Journal, Vol. 22, 2009) on SSRN. Here is the abstract: The same technologies that groups of ordinary citizens are using to write operating systems and encyclopedias...
Schauer on the Supreme Court's Case Selection Process
Posted on October 19, 2009Frederick Schauer (University of Virginia School of Law) has posted Is it Important to Be Important? Evaluating the Supreme Court's Case Selection Process (Yale Law Journal, Vol. 119, 2009) on SSRN. Here is the abstract: The Supreme Court has been...
Seidenfeld on the Chevron Doctrine
Posted on October 19, 2009Mark Seidenfeld (Florida State University College of Law) has posted Chevron's Foundation on SSRN. Here is the abstract: How can a court justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding...
Spiro on Dual Citizenship as a Human Right
Posted on October 19, 2009Peter J. Spiro (Temple University - James E. Beasley School of Law) has posted Dual Citizenship as Human Right (International Journal of Constitutional Law (I-CON), Forthcoming) on SSRN. Here is the abstract: For most of modern history, dual citizenship was...
Legal Theory Lexicon: Fit and Justification
Posted on October 18, 2009Introduction In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal...
Legal Theory Bookworm
Posted on October 17, 2009The Legal Theory Bookworm recommends Force and Freedom: Kant's Legal and Political Philosophy by Arthur Ripstein. Here is a description: In this masterful work, both an illumination of Kant?s thought and an important contribution to contemporary legal and political theory,...
Download of the Week
Posted on October 17, 2009The Download of the Week is Preventive Adjudication by Samuel Bray. Here is the abstract: This Article identifies, justifies, and explains the parameters of a largely ignored but important category of cases - what is here called ?preventive adjudication...
Paulsen on the War Power
Posted on October 16, 2009Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The War Power (Harvard Journal of Law and Public Policy, 2010) on SSRN. Here is the abstract: This short paper attempts to set forth a comprehensive, but brief,...
Gardner & Rossi on State & Federal Constitutional Law
Posted on October 16, 2009James A. Gardner and Jim Rossi (University at Buffalo Law School, SUNY and Florida State University College of Law) have posted Dual Enforcement of Constitutional Norms (New Frontiers of State Constitutional Law, Oxford University Press, 2010) on SSRN...
Nahmod on Constitutional Torts & Ashcroft v. Iqbal
Posted on October 16, 2009Sheldon H Nahmod (Chicago-Kent College of Law - Institute for Law and the Humanities) has posted Constitutional Torts, Over-Deterrence and Supervisory Liability after IQBAL (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract: My forthcoming Article is...
Walen on Husak on Intentions & Permissibility
Posted on October 16, 2009Alec D. Walen (Institute for Philosophy and Public Policy) has posted Comments on Doug Husak: The Low Cost of Recognizing (and of Ignoring) the Limited Relevance of Intentions to Permissibility (Criminal Law and Philosophy, Vol. 3, pp. 71-78, 2009) on...
Walen on Long-Term Preventive Detention
Posted on October 16, 2009Alec D. Walen (Institute for Philosophy and Public Policy) has posted Crossing a Moral Line: Long-Term Preventive Detention in the War on Terror (Philosophy and Public Policy Quarterly, Vol. 3/4, pp. 15-21) on SSRN. Here is the abstract: The long-term...
Bray on Preventive Adjudication
Posted on October 16, 2009Samuel Bray (Columbia Law School) has posted Preventive Adjudication (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract: This Article identifies, justifies, and explains the parameters of a largely ignored but important category of cases - what...
Blutman on Defining Religion
Posted on October 16, 2009László Blutman (University of Szeged - Faculty of Law) has posted In Search of a Legal Definition of Religion (Americana, Vol. V, No. 1, Spring 2009) on SSRN. Here is the abstract: In recent decades, the problem of defining religion...
Bilder on Moon Mining
Posted on October 15, 2009Richard Bilder (University of Wisconsin Law School) has posted A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options (Fordham International Law Journal, Vol. 33, No. 3, February 2010) on SSRN. Here is the abstract: This...
Delahunty on the Fourth Amendment & War
Posted on October 15, 2009Robert J. Delahunty (University of St. Thomas School of Law (Minnesota)) has posted The Fourth Amendment Goes to War (Engage, August 2009) on SSRN. Here is the abstract: In October 2001 - not quite six weeks after the 9/11 attacks...
Oberdiek on Culpability & Deontological Constraints
Posted on October 15, 2009John Oberdiek (Rutgers University School of Law, Camden) has posted Culpability and the Definition of Deontological Constraints (Law and Philosophy , Vol. 27, No. 2) on SSRN. Here is the abstract: At the core of deontological moral theory are constraints...
Candeub & McCartney on Network Neutrality & Transparency
Posted on October 15, 2009Adam Candeub and Daniel John McCartney (Michigan State University College of Law and Michigan State University College of Law) have posted Network Neutrality and Network Transparency on SSRN. Here is the abstract: Network neutrality, though existing only in draft legislation...
Stein on Originalism, Slavery, and "Original Exclusions"
Posted on October 15, 2009Mark S. Stein (Harvard Law School, Petrie-Flom Center) has posted Originalism and Original Exclusions (Kentucky Law Journal, Forthcoming) on SSRN. Here is the abstract: In this article, I consider how the interpretation of today?s Constitution should be affected by the...
Metzger on Internal & External Separation of Powers
Posted on October 15, 2009Gillian E. Metzger (Columbia University - Law School) has posted The Interdependent Relationship Between Internal and External Separation of Powers on SSRN. Here is the abstract: This Essay, prepared as part of the Emory Law Journal?s 2009 Thrower Symposium on...
Sundby on Mapp v. Ohio
Posted on October 14, 2009Scott E. Sundby (Washington and Lee University - School of Law) has posted Mapp v. Ohio?s Unsung Hero: Suppression Hearings as Morality Play on SSRN. Here is the abstract: The exclusionary rule is back under the judicial magnifying glass. Recent...
Eleftheriadis on Parliamentary Sovereignty
Posted on October 14, 2009Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted Parliamentary Sovereignty and the Constitution (Canadian Journal of Law and Jurisprudence, 2009) on SSRN. Here is the abstract: The doctrine of parliamentary sovereignty of the United Kingdom parliament is...
Kwall on Lange & Powell on the First Amendment
Posted on October 14, 2009Roberta Rosenthal Kwall (DePaul University - College of Law) has posted Book Review: Intellectual Property Law and Jewish Law: A Comparative Perspective on Absolutism (Yale J. Law & Humanites, Vol. 22, 2010) on SSRN. Here is the abstract: One's theory...
Kolber on Subjective Experience & Law
Posted on October 14, 2009Adam J. Kolber (University of San Diego School of Law) has posted The Experiential Future of the Law on SSRN. Here is the abstract: Subjective experiences, like pain, sadness, anxiety, and panic, are fundamentally important to the law. Since we...
Strauss on Free Enterprise Fund v. Public Company Accounting Oversight Board
Posted on October 14, 2009Peter L. Strauss (Columbia Law School) has posted Free Enterprise Fund v. Public Company Accounting Oversight Board (Vanderbilt Law Review En Banc, Vol. 62, p. 51, 2009) on SSRN. Here is the abstract: This is the introductory essay in an...
Carrol on the post-Apprendi Jury
Posted on October 13, 2009Jenny E. Carroll (University of Cincinnati College of Law) has posted Of Rebels, Rogues and Roustabouts: The Jury's Second Coming on SSRN. Here is the abstract: This article examines the role of the jury in a post-Apprendi justice system. Apprendi...
Van Duffel & Yap on Distributive Justice & the Principle of Extreme Necessity in Canon & Civil Law
Posted on October 13, 2009Siegfried Van Duffel and Dennis Yap (National University of Singapore (NUS) and Princeton University - Department of Politics) has posted Distributive Justice Before the Eighteenth Century: The Right of Necessity on SSRN. Here is the abstract: Until recently, few people...
Guggenheim on Texas Polygamy
Posted on October 13, 2009Martin Guggenheim (New York University School of Law) has posted Texas Polygamy and Child Welfare (Houston Law Review, Vol. 46, No. 3, 2009) on SSRN. Here is the abstract: This article explains why the child welfare process was used in...
Schor on Marbury & Lochner
Posted on October 13, 2009Miguel Schor (Suffolk University Law School) has posed The Strange Cases of Marbury and Lochner in the Constitutional Imagination (Texas Law Review, Vol. 87, No. 7, 2009) on SSRN. Here is the abstract: Embedded deep in the constitutional imagination is...
Konefsky on the Charles River Bridge Case & Simon Greenleaf
Posted on October 13, 2009Alfred S Konefsky (University at Buffalo Law School, SUNY) has posted Simon Greenleaf, Boston Elites and the Social Meaning and Construction of the Charles River Bridge Case (TRANSFORMATIONS IN AMERICAN LAW: ESSAYS IN HONOR OF MORTON J. HOROWITZ, VOL...
Buzbee on Regulatory Preemption & Hard Look Judicial Review
Posted on October 13, 2009William W. Buzbee (Emory University School of Law) has posted Preemption Hard Look Review, Regulatory Interaction, and the Quest for Stewardship and Intergenerational Equity (George Washington Law Review, Vol. 77, No. 1521, 2009) on SSRN. Here is the abstract: Current...
Idleman on Conflicts Involving Regligious Communities
Posted on October 13, 2009Scott C. Idleman (Marquette University) has posted A Legal Perspective on Conflicts Involving Religious Communities on SSRN. Here is the abstract: Within any given state or society, numerous factors can influence both relations among religious communities and relations between these...
Strauss on the President & Agency Rulemaking
Posted on October 12, 2009Peter L. Strauss (Columbia Law School) has posted Legislation that Isn't - Attending to Rulemaking's Democracy Deficit (California Law Review, Forthcoming) on SSRN. Here is the abstract: Written in celebration of Philip Frickey?s many contributions to the legislation literature, this...
Redish, Julian, & Zyontz on Cy Pres Relief in Class Actions
Posted on October 12, 2009Martin H. Redish (Northwestern University - School of Law), Peter Julian (Northwestern University - School of Law), & Samantha Zyontz (Searle Civil Justice Institute) have posted Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and...
Heinze on Aristotle's Metaethics & Law
Posted on October 12, 2009Eric Heinze (Queen Mary University of London, School of Law) has posted The Metaethics of Law: Book One of Aristotle?s Nicomachean Ethics (International Journal of Law in Context, Vol. 5, No. 4, 2009) on SSRN. Here is the abstract: Traditional...
Walen & Wasserman on the Mechanics of Rights & the Trolley Problem
Posted on October 12, 2009Alec D. Walen and David Wasserman (Institute for Philosophy and Public Policy and Center for Ethics at Yeshiva University) have posted The Mechanics of Hohfeldian Rights, Featuring a Case Study of Judith Jarvis Thomson on the Trolley Problem on SSRN....
Rosenthal on the Freedom of Speech
Posted on October 12, 2009Lawrence Rosenthal (Chapman University - School of Law) has posted First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech on SSRN. Here is the abstract: Scholars have struggled to explain our sprawling First Amendment doctrine...
Legal Theory Lexicon: Virtue Jurisprudence
Posted on October 11, 2009Introduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the...
Segall on Judicial Activism & Judicial Responsibility
Posted on September 30, 2009Eric Segall (Georgia State University - College of Law) has posted Reconceptualizing the Judicial Activism Debate as Judicial Responsibility: A Tale of Two Justice Kennedys (Arizona State Law Journal, Vol. 41, 2009) on SSRN. Here is the abstract: The academic...
Eleftheriadis on the Universality of Rights
Posted on September 30, 2009Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted The Universality of Rights (Indian Journal of Constitutional Law, 2009) on SSRN. Here is the abstract: This essay argues that the universality claim is a claim concerning two different...
Kreit on Facial & As-Applied Challenges
Posted on September 30, 2009Alex Kreit (Thomas Jefferson School of Law) has posted Making Sense of Facial and As-Applied Challenges (William & Mary Bill of Rights Journal, Vol. 18, No. 3, Forthcoming) on SSRN. Here is the abstract: This article challenges the conventional understanding...
Seinfeld on Articles I & III on Enumeration
Posted on September 30, 2009Gil Seinfeld (University of Michigan Law School) has posted Article I, Article III, and the Limits of Enumeration (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract: Article I, § 8 and Article III, § 2 of the U.S....
John J. Chung (Roger Williams University
Posted on September 30, 2009John J. Chung (Roger Williams University - School of Law) has posted From Feudal Land Contracts to Financial Derivatives: The Treatment of Status Through Specific Relief (Review of Banking & Financial Law, 2009-10). Here is the abstract: This paper is...
Hessick on the Presumption of Constitutionality
Posted on September 30, 2009F. Andrew Hessick III (Arizona State University - Sandra Day O'Connor College of Law) has posted Rethinking the Presumption of Constitutionality (Notre Dame Law Review, Vol. 85, 2010) on SSRN. Here is the abstract: One of the judiciary?s self imposed...
O'Malley on Risk
Posted on September 29, 2009Pat O'Malley (University of Sydney - Faculty of Law) has posted Experiments in Risk and Justice (Theoretical Criminology, Vol. 12, No. 4., pp. 451-470, 2008) on SSRN. Here is the abstract: Risk has not been regarded positively in most social...
Treanor on Horowitz
Posted on September 29, 2009William Michael Treanor (Fordham University School of Law) has posted Morton Horwitz: Legal Historian as Lawyer and Historian (TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF PROFESSOR MORTON J. HORWITZ, pp. 319-326, Daniel W. Hamilton & Alfred L...
Chiao on Intention & Attempt in Criminal Law
Posted on September 29, 2009Vincent Chiao (Harvard Law School) has posted Intention and Attempt (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract: Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only...
Lipshaw on Leiter on Religion
Posted on September 29, 2009Jeffrey M. Lipshaw (Suffolk University Law School) has posted Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief on SSRN. Here is the abstract: This is a comment on a definition of religion...
Lewinsohn-Zamir on Outcome Assessment
Posted on September 29, 2009Daphna Lewinsohn-Zamir (Hebrew University - Faculty of Law) has posted Beyond the Bottom Line: The Complexity of Outcome Assessment on SSRN. Here is the abstract: No one denies the importance of outcomes. Whether the object of our evaluation is acts,...
Varela on Legal Method Patents & Professional Responsibility
Posted on September 29, 2009Stephanie L. Varela (University of Florida Levin College of Law) has posted Damned If You Do, Doomed If You Don't: Patenting Legal Methods and its Effect on Lawyers' Professional Responsibilities (Florida Law Review, Vol. 60, p. 1145, 2008) on SSRN.....
Christiansen on Constitutional Adjudication & Socio-Economic Injustice in South Africa
Posted on September 29, 2009Eric C. Christiansen (Golden Gate University School of Law) has posted Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative Lessons from South Africa on SSRN. Here is the abstract: Does inclusion of social welfare rights in the text of a...
Sterk on the Prudent Investor Doctrine in Trust Law
Posted on September 28, 2009Stewart E. Sterk (Yeshiva University - Cardozo Law School) has posted Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine? (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract: During the 1990s, modern portfolio theory provided the...
Chen on Constitutions & Values in China, Taiwan, and Hong Kong
Posted on September 28, 2009Albert H.Y. Chen (Faculty of Law, University of Hong Kong) has posted Constitutions and Values in Three Chinese Societies on SSRN. Here is the abstract: In the collection of essays by various scholars in which this essay will be published,...
Pech on the Rule of Law & EU Constitutionalism
Posted on September 28, 2009Laurent Pech (National University of Ireland, Galway - Faculty of Law) has posted The Rule of Law as a Constitutional Principle of the European Union on SSRN. Here is the abstract: The rule of law is one amongst a number...
Levinson, Cai, and Young on Implicit Racial Bias
Posted on September 28, 2009Justin D. Levinson, Huajian Cai and Danielle Young (University of Hawaii at Manoa - William S. Richardson School of Law , and University of Hawai`i at Manoa Dept. of Psychology) have posted Guilty by Implicit Racial Bias: The Guilty/Not Guilty...
Raymond on the Dignitary Interest in the Law of Self-Defense
Posted on September 28, 2009Margaret Raymond (University of Iowa - College of Law) has posted Looking for Trouble: Framing and the Dignitary Interest in the Law of Self-Defense on SSRN. Here is the abstract: This article addresses when an actor can be denied a...
Legal Theory Lexicon: Public and Private Goods
Posted on September 27, 2009Introduction One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public...
Legal Theory Bookworm
Posted on September 26, 2009The Legal Theory Bookworm recommends Judicial Review in an Age of Moral Pluralism by Ronald C. Den Otter. Here is a description: Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about...
Download of the Week
Posted on September 26, 2009The Download of the Week is Towards a Right Against Risking by John Oberdiek. Here is the abstract: Morality forbids treating people in certain ways, and one way that it does so is through the recognition of rights. Rights form...
Bandes on Alexander, Ferzan, & Morse on Culpability
Posted on September 25, 2009Susan A. Bandes (DePaul University - College of Law) has posted Is it Immoral to Punish the Heedless and Clueless? (Law and Philosophy, 2010) on SSRN. Here is the abstract: This essay, written for a symposium on the book Crime...
Land on IP & the Right to Participate in Culture
Posted on September 25, 2009Molly Beutz Land (New York Law School) has posted Intellectual Property Rights and the Right to Participate in Cultural Life on SSRN. Here is the abstract: Although many contend that human rights law is a justification for intellectual property rights,...
Murphy on the ICC & the Criminalization of Humanitarian Intervention
Posted on September 25, 2009Sean D. Murphy (George Washington University - Law School) has posted Criminalizing Humanitarian Intervention (Case Western Reserve Journal of International Law, Vol. 41, p. 341, 2009) on SSRN. Here is the abstract: The States Parties of the International Criminal Court...
Knake on Mossman & McKenzie on Women in the Legal Profession
Posted on September 25, 2009Renee Newman Knake (Michigan State University College of Law) has posted The Progress of Women in the Legal Profession (Pace Law Review, Vol. 29, No. 2, 2009) on SSRN. Here is the abstract: The number of female and male law...
Pope on Labor Rights & the Involuntary Servitude Clause
Posted on September 25, 2009James Gray Pope (Rutgers Law School - Newark) has posted Contract, Race and Freedom of Labor in the Constitutional Law of 'Involuntary Servitude' (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract: The Supreme Court has yet to adopt...
Goeree & Yariv on Jury Deliberations
Posted on September 25, 2009Jacob K. Goeree and Leeat Yariv (California Institute of Technology - Division of the Humanities and Social Sciences and California Institute of Technology - Division of the Humanities and Social Sciences) have posted An Experimental Study of Jury Deliberation on...
Land on Peer-Produced Human Rights Reporting
Posted on September 24, 2009Molly Beutz Land (New York Law School) has posted Peer Producing Human Rights (Alberta Law Review, Vol. 46, No. 4, 2009) on SSRN. Here is the abstract: The growth of collaborative technologies has spurred the development of projects such as...
Yoo on Intermediation on the Internet & Free Speech
Posted on September 24, 2009Christopher S. Yoo (University of Pennsylvania Law School) has posted Free Speech and the Myth of the Internet as an Unintermediated Experience (George Washington Law Review, Vol. 78, May, 2010) on SSRN. Here is the abstract: In recent years, a...
Langevoort on the SEC & Madoff
Posted on September 24, 2009Donald C. Langevoort (Georgetown University Law Center) has posted The SEC and the Madoff Scandal: Three Narratives in Search of a Story on SSRN. Here is the abstract: This essay, part of a symposium on narrative in corporate law, considers...
Scott & Martinke on Judicial Selecton & Judicial Choice
Posted on September 24, 2009Kevin M. Scott (Administrative Office of the U.S. Courts) & Wendy L. Martinek (State University of New York - Department of Political Science) have posted Judicial Selection and Judicial Choice on SSRN. Here is the abstract: The divisiveness of the...
Lee on Samuelson on Interfact Patents & Interoperability
Posted on September 24, 2009Peter Lee (University of California, Davis School of Law) has posted Innovating between and within Technological Paradigms: A Response to Samuelson (Minnesota Law Review Headnotes, Vol. 93, 2009) on SSRN. Here is the abstract: Are Interface Patents Impeding Interoperability,? this...
Pletcher on Flickr, Creative Commons, and Publicity Rights
Posted on September 24, 2009Christa Engel Pletcher (Florida State College of Law) has posted Are Publicity Rights Gone in a Flash?: Flickr, Creative Commons, and the Commercial Use of Personal Photographs (Florida State University Business Review, Forthcoming) on SSRN. Here is the abstract: Flickr...
Schauer on fMRI-Based Lie Detection
Posted on September 23, 2009Frederick Schauer (University of Virginia School of Law) has posted Can Bad Science Be Good Evidence?: Neuroscience-Based Lie Detection and the Mistaken Conflation of Legal and Scientific Norms (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract: As the...
Albert on Constitutional Design
Posted on September 23, 2009Richard Albert (Boston College - Law School) has posted Constitutional Handcuffs on SSRN. Here is the abstract: With the enduring tension pitting constitutionalism versus democracy as my backdrop, I endeavor in this paper to make three contributions to the scholarly...
Chesney on National Security Fact Deference
Posted on September 23, 2009Robert Chesney (University of Texas ? School of Law) has posted National Security Fact Deference (Virginia Law Review, vol. 95, no. 6, 2009) on SSRN. Here is the abstract: The executive branch often urges judges to defer to it regarding...
Bone on Ashcroft v. Iqbal
Posted on September 23, 2009Robert G. Bone (Boston University School of Law) has posted Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal (Notre Dame Law Review, Vol. 85, No. 4, 2010) on SSRN. Here is the abstract: This Essay critically examines...
Stras on the Decline in the Supreme Court's Plenary Docket
Posted on September 23, 2009David R. Stras (University of Minnesota Law School) has posted The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation (Constitutional Commentary, Forthcoming) on SSRN. Here is the abstract: More than a dozen hypotheses have been proposed to explain the startling...
Reinert on Success Rates in Bivens Litigation & Individual Liability
Posted on September 23, 2009Alex Reinert (Benjamin N. Cardozo School of Law -- Yeshiva University) has posted Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model (Stanford Law Review, Vol. 62, 2010) on SSRN. Here is the abstract: In...
Aynes on the Privileges & Immunities Clause
Posted on September 22, 2009Richard L. Aynes (The University of Akron School of Law) has posted Ink Blot or Not: The Meaning of Privileges and/or Immunities (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 5, 2009) on SSRN. Here is the abstract:...
Samahon on Impeachment as Judicial Selection
Posted on September 22, 2009Tuan Samahon (Villanova University - School of Law) has posted Impeachment as Judicial Selection? on SSRN. Here is the abstract: Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who commit to particular legal interpretations...
Ortiz on Minimizing Disagreement
Posted on September 22, 2009Daniel R. Ortiz (University of Virginia School of Law) has posted Nice Legal Studies on SSRN. Here is the abstract: Unlike contemporary politics, much of our recent legal theory urges us to ?make nice,? that is, to minimize social conflict...
Berger on Equal Protection & Federal Indian Law
Posted on September 22, 2009Bethany Berger (University of Connecticut School of Law) has posted Reconciling Equal Protection and Federal Indian Law (California Law Review, Forthcoming) on SSRN. Here is the abstract: In this essay for a festschrift in celebration of Philip Frickey and his...
Canes-Wrone, Clark, & Park on Judicial Retention Elections & Independence
Posted on September 22, 2009Brandice Canes-Wrone , Tom S. Clark and Jee-Kwang Park (Princeton University - Department of Politics , Emory University - Department of Political Science and Princeton University - Woodrow Wilson School of Public and International Affairs) have posted Judicial Independence and...
Caron on Murphy v. United States
Posted on September 22, 2009Paul L. Caron (University of Cincinnati - College of Law) has posted The Story of Murphy: A New Front in the War on the Income Tax on SSRN. Here is the abstract: This chapter from the second edition of Tax...
Reinstein on the Limits of Executive Power
Posted on September 22, 2009Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Limits of Executive Power (American University Law Review, Forthcoming) on SSRN. Here is the abstract: Justice Jackson?s concurring opinion in The Steel Seizure Case has taken...
Fellowship Announcment: Max Weber Programme for Postdoctoral Studies
Posted on September 21, 2009Dennis Patterson has started as Professor of Legal Theory and Philosophy of Law at the EUI: http://www.eui.eu/DepartmentsAndCentres/Law/People/Professors/CurrentProfessors/Patterson.aspx The EUI has a post doctoral program that invites applications from all countries...
McCann on American Needle v. NFL
Posted on September 21, 2009Michael McCann (Vermont Law School) has posted American Needle v. NFL: An Opportunity to Reshape Sports Law (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract: This Feature will explore American Needle v. NFL and its potential impact on...
Drassinower on Balance in Copyright Law
Posted on September 21, 2009Abraham Drassinower (University of Toronto - Faculty of Law) has posted From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law (Journal of Corporation Law, Vol. 34, No. 4, pp. 991-1007, 2009) on SSRN. Here is the...
Leiter on Toleration or Respect for Religion
Posted on September 21, 2009Brian Leiter (University of Chicago Law School) has posted Foundations of Religious Liberty: Toleration or Respect? on SSRN. Here is the abstract: Should we think of what I will refer to generically as ?the law of religious liberty? as grounded...
Oberdiek on a Right Against Risking
Posted on September 21, 2009John Oberdiek (Rutgers University School of Law, Camden) has posted Towards a Right Against Risking (Law and Philosophy, Vol. 28, 367-392, 2009) on SSRN. Here is the abstract: Morality forbids treating people in certain ways, and one way that it...
Parness on Equality Provisions in State Constitutions
Posted on September 21, 2009Jeffrey A. Parness (Northern Illinois University - College of Law) has posted American State Constitutional Equalities (Gonzaga Law Review, Vol. 45, No. 3, 2010) on SSRN. Here is the abstract: Many American state constitutions contain equality provisions...
Legal Theory Lexicon: Concepts and Conceptions
Posted on September 20, 2009Introduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice...
Legal Theory Bookworm
Posted on September 19, 2009The Legal Theory Bookworm recommends Philosophy, Politics, Democracy: Selected Essays by Joshua Cohen. Here is a description: Over the past twenty years, Joshua Cohen has explored the most controversial issues facing the American public: campaign finance and political equality, privacy...
Download of the Week
Posted on September 19, 2009The Download of the Week is The Political Economy of Youngstown by Edward T. Swaine. Here is the abstract: The time is ripe for a non-doctrinal assessment of Justice Jackson?s famous three-category framework for challenges to presidential action, elaborated in...
Cahill on on Ginsburg & Sexual Equality
Posted on September 18, 2009Courtney M. Cahill (Roger Williams University - School of Law) has posted Celebrating the Differences that Could Make a Difference: United States v. Virginia and a New Vision of Sexual Equality (Ohio State Law Journal, Forthcoming) on SSRN. Here is...
Swaine on the Political Economy of Youngstown
Posted on September 18, 2009Edward T. Swaine (George Washington University Law School) has posted The Political Economy of Youngstown (Southern California Law Review, Forthcoming ) on SSRN. Here is the abstract: The time is ripe for a non-doctrinal assessment of Justice Jackson?s famous three-category...
O'Malley on Fines
Posted on September 18, 2009Pat O'Malley (University of Sydney - Faculty of Law) has posted Theorizing Fines (Punishment and Society, Vol. 11, No. 1, pp. 67-83, 2009) on SSRN. Here is the abstract: Given their central place as a sanction in criminal justice, the...
Book Announcement: After Adam Smith by Milgate & Stimson
Posted on September 18, 2009After Adam Smith A Century of Transformation in Politics and Political Economy Murray Milgate & Shannon C. Stimson To read the entire book description or the introduction, please visit: http://press.princeton.edu/titles/9076.html Few issues are more central to our present predicaments than...
Schragger on Mobile Capital & Local Regulation
Posted on September 18, 2009Richard Schragger (University of Virginia - School of Law) has posted Mobile Capital, Local Economic Regulation, and the Democratic City (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract: This Article examines local efforts to regulate mobile capital...
Craig on EU Member State Autonomy & EU Competence
Posted on September 18, 2009Paul P. Craig (University of Oxford - Faculty of Law) has posted Competence and Member State Autonomy: Causality, Consequence and Legitimacy (THE EUROPEAN COURT OF JUSTICE AND THE AUTONOMY OF THE MEMBER STATES, Hans W. Micklitz and Bruno de Witte,...
Lyke on Lawrence & the 8th Amendment
Posted on September 17, 2009Sheldon Bernard Lyke (University of Chicago - Department of Sociology) has posted Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency (William & Mary Journal of Women and the Law, Vol. 15, No. 3, 2009) on...
Nimmer on Standard Setting Organizations & Markets
Posted on September 17, 2009Raymond T. Nimmer (University of Houston - Law Center) has posted Technical Standards Setting Organizations & Competition: A Case for Deference to Markets on SSRN. Here is the abstract: There exists a risk of standards-setting organizations (SSO's) becoming improper surrogates...
Conley on Metz on the Language of Law School
Posted on September 17, 2009John M. Conley (University of North Carolina at Chapel Hill - School of Law) has posted Can You Talk Like a Lawyer and Still Think Like a Human Being?: Mertz?s the Language of Law School (Law & Social Inquiry, Vol....
O'Malley on Neoliberalism & Criminology
Posted on September 17, 2009Pat O'Malley (University of Sydney - Faculty of Law) has posted Neoliberalism and Risk in Criminology (THE CRITICAL CRIMINOLOGY COMPANION, pp. 55-67, T. Anthony, C. Cunneen, eds., Federation Press, 2008) on SSRN. Here is the abstract: Beginning in the 1970s,...
Stein on Probability
Posted on September 17, 2009Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Probability and Incentives on SSRN. Here is the abstract: This Article challenges the mathematical probability system that underlies law and economics and behavioral analysis and argues that...
Farber on Frickey
Posted on September 17, 2009Daniel A. Farber (University of California, Berkeley - School of Law) has posted 'Practical Reasoning' and the Scholarship of Philip P. Frickey on SSRN. Here is the abstract: Phil Frickey has made important contributions to constitutional law, statutory interpretation, and...
Brescia on Financial Re-Regulation
Posted on September 17, 2009Ray Brescia (Albany Law School) has posted Trust in the Shadows: Law, Behavior and Financial Re-Regulation (Buffalo Law Review, Forthcoming) on SSRN. Here is the abstract: In the deep throes of the Great Depression, in an effort to restore faith...
Herz on Purposivism & Institutional Competence in Statutory Interpretation
Posted on September 16, 2009Michael Herz (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Purposivism and Institutional Competence in Statutory Interpretation (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract: Writers on legal interpretation have almost all either addressed...
Heyman on Investigating Corporate Malfeasance
Posted on September 16, 2009Susan Schwab Heyman (Benjamin N. Cardozo School of Law/Yeshiva University) has posted Bottom-Up: An Alternative Approach for Investigating Corporate Malfeasance on SSRN. Here is the abstract: At least since the Enron scandal, the government has focused intensive efforts on developing...
Scheicher on the Law & Economics of Cities
Posted on September 16, 2009David Schleicher (George Mason University - School of Law) has posted The City as a Law and Economic Subject (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract: Local government law has fallen behind the times. Over...
Mattei on Predatory Capitalism
Posted on September 16, 2009Ugo Mattei (University of California - Hastings College of Law) has posted Emergency-Based Predatory Capitalism: The Rule of Law, Alternative Dispute Resolution, and Development (CONTEMPORARY STATES OF EMERGENCY: THE POLITICS OF MILITARY AND HUMANITARIAN INTERVENTIONS, Didier Fassin & Mariella Pandolfi,...
Horwitz on Probationary Sentencing
Posted on September 16, 2009Andrew Horwitz (Roger Williams University - School of Law) has posted The Costs of Abusing Probationary Sentences: Over Incarceration and the Erosion of Due Process on SSRN. Here is the abstract: Something has gone terribly wrong in the American criminal...
Alfieri on Discovering Identity in Civil Procedure
Posted on September 16, 2009Anthony Victor Alfieri (University of Miami - School of Law) has posted Discovering Identity in Civil Procedure (Southern California Law Review, Vol. 83, 2010) on SSRN. Here is the abstract: This essay explores the story of Floride Norelus, an undocumented...
Rutherglen on the 13th Amendment, Congressional Power, & Civil Rights Politics
Posted on September 16, 2009George A. Rutherglen (University of Virginia School of Law) have posted The Thirteenth Amendment, the Power of Congress, and The Politics of Civil Rights on SSRN. Here is the abstract: This article charts a middle way in recent scholarship on...
Craig on Administrative Law in the Roberts Court
Posted on September 15, 2009Robin Kundis Craig (Florida State University - College of Law) has posted Administrative Law in the Roberts Court: The First Four Years on SSRN. Here is the abstract: Given Justice David Souter?s retirement in the summer of 2009, the four...
Bowman on the Supreme Court's Sentencing Jurisprudence
Posted on September 15, 2009Frank O. Bowman III (University of Missouri School of Law) has posted Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended (University of Chicago Law Review, Vol. 77, Forthcoming 2010) on SSRN....
Bailey on Tillman on Hamilton on Removal of Executive Officers
Posted on September 15, 2009Jeremy D. Bailey (Political Science, University of Houston) has posted The Traditional View of Hamilton?s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman on SSRN. Here is the abstract: In Federalist No. 77, Alexander Hamilton...
Barzon on Jerome Frank
Posted on September 15, 2009Charles L. Barzun (University of Virginia School of Law) has posted Jerome Frank and the Modern Mind on SSRN. Here is the abstract: Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn...
Rutledge on Delegation & Conflict of Laws
Posted on September 15, 2009Peter B. Rutledge (University of Georgia Law School) has posted Delegation and Conflicts (of Law) (George Mason Law Review, Forthcoming) on SSRN. Here is the abstract: The Supreme Court's recent decision in Medellin rekindled a long-standing debate over delegation, which...
Hasen on Liberals Losing in the Roberts Court
Posted on September 15, 2009Check out Rick Hasen's essay, "How Liberals Can Win by Losing at the Roberts Court," on Slate. Here is a taste: At the recent Supreme Court oral argument in the Citizens United case, about the constitutionality of limits on corporate...
Humbach on Sexting & the Freedom of Expression
Posted on September 15, 2009John A. Humbach (Pace University School of Law) has posted 'Sexting,' the First Amendment and Prosecuting Teens on SSRN. Here is the abstract: 'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to...
Wells on Langdell & Doctrine
Posted on September 14, 2009Catharine P. Wells (USC Gould School of Law) has posted Langdell and the Invention of Legal Doctrine on SSRN. Here is the abstract: This paper addresses two related questions. The first relates to Langdell and his development of a doctrinal...
Sadurski on Commutative, Distributive & Procedural Justice
Posted on September 14, 2009Wojciech Sadurski (University of Sydney-Faculty of Law) has posted Commutative, Distributive and Procedural Justice ? What Does it Mean, What Does it Matter? on SSRN. Here is the abstract: In this paper, I revisit an argument that two distinctions, traditionally...
Nelson on Virtual Property
Posted on September 14, 2009John William Nelson (Samford University - Cumberland School of Law) has posted The Virtual Property Problem: What Property Rights in Virtual Resources Might Look Like, How They Might Work, and Why They are a Bad Idea on SSRN. Here is...
Singh on Indian International Law
Posted on September 14, 2009Prabhakar Singh (University of Barcelona) has posted Indian International Law: From a Colonised Apologist to a Subaltern Protagonist on SSRN. Here is the abstract: Indian responses to international law have now seen three generations of scholarship. A decade into its...
Gross on Balancing Security & Liberty
Posted on September 14, 2009Oren Gross (University of Minnesota Law School) has posted Security Vs. Liberty: An Imbalanced Balancing on SSRN. Here is the abstract: The metaphor of balancing and the use of ?balancing tests? are dominant features in legal discourse. Since the terrorist...
Legal Theory Lexicon: Persons and Personhood
Posted on September 13, 2009Introduction Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal...
Legal Theory Bookworm
Posted on September 12, 2009The Legal Theory Bookworm recommends The Idea of Justice by Professor Amartya Sen. Here is a description: Social justice: an ideal, forever beyond our grasp; or one of many practical possibilities? More than a matter of intellectual discourse, the idea...
Download of the Week
Posted on September 12, 2009The Download of the Week is The Uneasy Case for Product Liability by Steven Shavell and A. Mitchell Polinsky. Here is the abstract: We explain in this Article that the benefits of product liability may well be outweighed by its...
Long on Demosprudence & Sheff v. O'Neill
Posted on September 11, 2009Justin R. Long (University of Connecticut School of Law) has posted Demosprudence, Interactive Federalism, and Twenty Years of Sheff V. O'Neill ( Connecticut Law Review, Forthcoming) on SSRN. Here is the abstract: Professor Lani Guinier and others have recently developed...
Ohlin on "The Torture Lawyers"
Posted on September 11, 2009Jens David Ohlin (Cornell Law School) has posted The Torture Lawyers (Harvard International Law Journal, Forthcoming) on SSRN. Here is the abstract: One of the longest shadows cast by the Bush Administration?s War on Terror involves the fate of the...
West on Autobiographical Speech & Informational Privacy
Posted on September 11, 2009Sonja West (University of Georgia School of Law) has posted The Story of Us: Resolving the Face-Off between Autobiographical Speech and Information Privacy on SSRN. Here is the abstract: Increasingly more ?ordinary? Americans are choosing to share their life experiences...
Akester on Empirical Assessment of Conflicts Between DRM & Free Expression
Posted on September 11, 2009Patricia Akester (University of Cambridge - Faculty of Law) has posted Technological Accommodation of Conflicts between Freedom of Expression and DRM: The First Empirical Assessment on SSRN. Here is the abstract: Copyright incentives and rewards to producers of works have...
van der Burg & Brom on State Neutrality
Posted on September 11, 2009Wibren van der Burg and Frans W.A. Brom (Erasmus University Rotterdam- School of Law) have posted In Defense of State Neutrality (?Eine Verteidigung der Staatlichen Neutralität?, in: K.P. Rippe (Hrsg.), Angewandte Ethik in der pluralistischen Gesellschaft, Freiburg, CH: Freiburger Universitätsverlag,...
Larios on Tinker v. Des Moines Independent Community School District
Posted on September 11, 2009Miguel E. Larios (The John Marshall Law School) has posted We Got No Class: Retiring Tinker v. Des Moines Independent Community School District on SSRN. Here is the abstract: The First Amendment to the U.S. Constitution prohibits Congress from enacting...
Woolley on Lawyers' Obligations to Foster Access to Justice
Posted on September 10, 2009Alice Woolley (University of Calgary) has posted Imperfect Duty: Lawyers' Obligation to Foster Access to Justice on SSRN. Here is the abstract: Access to justice is an integral component of the legal system. However, the question of upon whose shoulders...
Telman on Lovenheim v. Iroquois Brands
Posted on September 10, 2009Jeremy Telman (Valparaiso University - Law School) has posted Is the Quest for Corporate Responsibility a Wild Goose Chase? The Story of Lovenheim v. Iroquois Brands, Ltd. on SSRN. Here is the abstract: Lovenheim v. Iroquois Brands, Ltd. is not...
Benson on Pure Economic Loss
Posted on September 10, 2009Peter Benson (University of Toronto - Faculty of Law) has posted The Problem with Pure Economic Loss (South Carolina Law Review, Vol. 60, No. 4, 2009) on SSRN. Here is the abstract: For well over a century, it has been...
Tamayo on "Bitch"
Posted on September 10, 2009Yvonne A. Tamayo (Willamette University - College of Law) has posted 'Rhymes with Rich:' Power, Law, and the Bitch on SSRN. Here is the abstract: Examines legal and cultural meaning of term 'bitch' when used against women in public and...
Deva on Property Rights and Socialist Constitutions
Posted on September 10, 2009Surya Deva (City University of Hong Kong) has posted Does the Right to Property Create a Constitutional Tension in Socialist Constitutions? An Analysis with Reference to India and China (National University of Juridical Sciences Law Review, Vol. 1, No...
Strang on Originalism & Precedent
Posted on September 10, 2009Lee J. Strang (University of Toledo College of Law) has posted An Originalist Theory of Precedent: The Epistemic and Metaphysical Attitudes Toward Originalist Precedent on SSRN. Here is the abstract: In this Article, I show that originalism retains a robust...
Book Announcement: Democratic Authority by Estlund in Paperback
Posted on September 10, 2009Democratic Authority A Philosophical Framework David M. Estlund To read the entire book description or a sample chapter, please visit: http://press.princeton.edu/titles/8571.html Democracy is not naturally plausible. Why turn such important matters over to masses of people who have no expertise?...
Pojanowski on Deference to Agency Interpretations of Common Law
Posted on September 10, 2009Jeffrey Pojanowski (University of Virginia - School of Law) has posted Reason and Reasonableness in Review of Agency Decisions ( Northwestern University Law Review, Vol. 104, 2010) on SSRN. Here is the abstract: Long after the Erie Railroad v. Tompkins,...
Shavell & Polinsky on Product Liability
Posted on September 09, 2009Steven Shavell and A. Mitchell Polinsky (Harvard Law School and Stanford Law School) have posted The Uneasy Case for Product Liability on SSRN. Here is the abstract: We explain in this Article that the benefits of product liability may well...
Kornfeld on the International Joint Commission of the Boundaries Waters Treaty
Posted on September 09, 2009Itzchak E. Kornfeld (Hebrew University of Jerusalem - Faculty of Law) has posted Polycentrism and the International Joint Commission (Wayne Law Review, Vol. 54, p. 1695, 2009) on SSRN. Here is the abstract: Courts are called upon everyday to resolve....
Leader-Elliott on Duff on Criminal Law
Posted on September 09, 2009Ian D. Leader-Elliott (University of Adelaid) has posted A Critical Reading of R. A. Duff, Answering for Crime (Adelaide Law Review, Forthcoming) on SSRN. Here is the abstract: 'Answering for Crime' is an essay in rational reconstruction of the substantive...
Janger on Virtual Territory & Bankruptcy Harmonization
Posted on September 09, 2009Edward J. Janger (Brooklyn Law School) has posted Virtual Territoriality on SSRN. Here is the abstract: Current efforts to unify the laws of secured credit and bankruptcy are predicated on the belief that regularizing the law of debtor?s rights and...
Tebbe on Privatization & the First Amendment
Posted on September 09, 2009Nelson Tebbe (Brooklyn Law School) has posted Privatizing and Publicizing Speech (Northwestern University Law Review Collogquy, Vol. 104, p. 70, 2009) on SSRN. Here is the abstract: When and how should governments be permitted to use private-law mechanisms to manage...
Costello on the Irish Court of Admiralty in the Mid-Eighteenth Century
Posted on September 09, 2009Kevin Costello (University College Dublin (UCD) - School of Law) has posted The Court of Admiralty of Ireland, 1745-1756 (American Journal of Legal History) on SSRN. Here is the abstract: In the mid-eighteenth century the Irish Court of Admiralty formed...
Landau on Deference in Executive Detention Cases
Posted on September 08, 2009Joseph Benjamin Landau (Columbia Law School) has posted Muscular Procedure: Conditional Deference in the Executive Detention Cases (Washington Law Review, Vol. 84, Forthcoming) on SSRN. Here is the abstract: Although much of the prevailing scholarship surrounding the 9/11 decisions tends...
Raeder on Lininger on Giles
Posted on September 08, 2009Myrna Raeder (Southwestern University School of Law) has posted Being Heard after Giles: Comments on the Sound of Silence (Texas Law Review, Vol. 87, p. 105, 2009) on SSRN. Here is the abstract: This is a comment on Tom Lininger?s...
Gallagher on Bessen & Meurer on Patent Failure
Posted on September 08, 2009William T. Gallagher (Golden Gate University School of Law) has posted Book Review of Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk, by James Bessen and Michael J. Meurer (Princeton Univ. Press, 2008) on SSRN. Here is...
Bascuas on the Federal Sentencing Guidelines
Posted on September 08, 2009Ricardo J. Bascuas (University of Miami - School of Law) has posted The American Inquisition: Sentencing after the Federal Guidelines on SSRN. Here is the abstract: Despite the series of important Supreme Court sentencing decisions of the past ten years,...
Appell on Child-Centered Jurisprudence
Posted on September 08, 2009Annette Ruth Appell (Washington University School of Law in St. Louis) has posted The Pre-Political Child of Child-Centered Juriprusdence (Houston Law Review, Vol. 46, No. 3, 2009) on SSRN. Here is the abstract: Using age as a category of analysis,...
Keckler on Howard on Lawyers
Posted on September 08, 2009Charles N.W. Keckler (Dickinson School of Law, Penn State) has posted Lawyered Up on SSRN. Here is the abstract: This Book Review Essay uses the prism of a popular and much-discussed recent critique of law in America, Phillip K. Howard's...
Virelli on the Evolution Instruction & Administrative Law
Posted on September 07, 2009Louis J. Virelli III (Stetson University College of Law) has posted Administrative Evolution on SSRN. Here is the abstract: The debate over teaching evolution in public school science classes is rapidly evolving. Opponents of evolution instruction have recently introduced new...
Moffat on Fuller & Substantive Justice
Posted on September 07, 2009Robert C. Moffat has posted Searching for Substantive Justice: Lessons from Lon Fuller?s Natural Law (Iowa Journal of Gender, Race & Justice, Forthcoming) on SSRN. Here is the abstract: The goal of this essay is to provide some perspective in...
Inazu on the History of the Right of Association
Posted on September 07, 2009John D. Inazu (Duke University School of Law) has posted The Strange Origins of the Constitutional Right of Association (Tennessee Law Review, Forthcoming) on SSRN. Here is the abstract: Although much has been written about the freedom of association and...
Benson on the Normative Interpretation of the Misfeasance-Nonfeasance Distinction
Posted on September 07, 2009Peter Benson (University of Toronto - Faculty of Law) has posted Misfeasance as an Organizing Normative Idea in Private Law on SSRN. Here is the abstract: In tort, we say, there is liability for misfeasance but not nonfeasance. When courts...
Perlman on Model Rule of Professional Conduct 5.2(b)
Posted on September 07, 2009Andrew M. Perlman (Suffolk University Law School) has posted The Silliest Rule of Professional Conduct: Model Rule 5.2(b) (The Professional Lawyer, Volume 19, No. 3, p. 14, 2009) on SSRN. Here is the abstract: Rule 5.2(b) provides that a subordinate....
Legal Theory Lexicon: Rules, Standards, and Principles
Posted on September 06, 2009Introduction Early on in law school, law students begin to realize that legal norms are not all cut from the same cloth. Some rules provide "bright lines," others "fuzzy lines," and yet others, no lines at all. The "reasonable person"...
Legal Theory Bookworm
Posted on September 05, 2009The Legal Theory Bookworm recommends Creon's Ghost Law, Justice, and the Humanities by Joseph Tomain. Here is a description: his book examines the enduring problem of the relationship between man's law and a ?higher? law from the perspective of core....
Download of the Week
Posted on September 05, 2009The Download of the Week is Specific Performance and the Thirteenth Amendment by Nathan B. Oman. Here is the abstract: Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have...
Money on Citizenship Policy
Posted on September 04, 2009Jeannette Money (University of California, Davis) has posted Immigrants as Fellow Citizens? on SSRN. Here is the abstract: The paper proposes a theory of citizenship policy that incorporates politicians' incentives to maximize their returns generated by the differences between rights...
Knowles on Spooner on Antislavery Violence & the Constitutionality of Slavery
Posted on September 04, 2009Helen J. Knowles (State University of New York - SUNY at Oswego) has posted 'The Pen is Mightier than the Sword': Lysander Spooner?s Constitutional Response to Increasing Abolitionist Violence in the 1850's on SSRN. Here is the abstract: Like many...
Lehavi on Rules & Standards in Property Law
Posted on September 04, 2009Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Standards of Property on SSRN. Here is the abstract: Much scholarly attention has been paid recently to the optimal design of legal norms as constituting either clear-cut...
Ruan on Rule 68 Offers of Judgment & Failure to Pay Lawful Wage Class Actions
Posted on September 04, 2009Nantiya Ruan (University of Denver Sturm College of Law) has posted Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers on SSRN. Here is the abstract: In race and sex discrimination class actions, if...
Krakoff on Frickey on American Indian Law
Posted on September 04, 2009Sarah Krakoff (University of Colorado Law School) has posted The Last Indian Raid in Kansas: Context, Colonialism, and Philip P. Frickey's Contributions to American Indian Law (California Law Review, Forthcoming) on SSRN. Here is the abstract: To many, American Indian...
Pease on Lands Council v. McNair
Posted on September 04, 2009Craig M. Pease (Vermont Law School) has posted It's Owls All the Way Down (Environmental Forum, p.18, May 2009) on SSRN. Here is the abstract: In Lands Council v. McNair, the scientific question presented was whether Forest Service analysts employed....
Mishra on Conflicts of Interest Between Municipalities & Officials in Section 1983 Litigation
Posted on September 03, 2009Dina Mishra has posted When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation (Yale Law Journal, Vol. 119, 2009) on SSRN. Here is the abstract: In many cases, municipal...
Herstein on Nussbaum on Butler
Posted on September 03, 2009Ori J. Herstein (Columbia University) has posted Justifying Subversion: Why Nussbaum Got (the Better Interpretation of) Butler Wrong (19 Buffalo Journal of Gender, Law & Social Policy (forthcoming 2010)) on SSRN. Here is the abstract: Deconstructive and poststructuralist theories are...
Wright & Kobayashi on Antitrust, IP, & Standard Setting
Posted on September 03, 2009Joshua D. Wright (George Mason University - School of Law) & Bruce H. Kobayashi (George Mason University - School of Law) have posted Intellectual Property and Standard Setting (ABA Handbook on the Antitrust Aspects of Standards Setting, 2010 ) on...
Margulies on Avoidance Doctrines in National Security Cases
Posted on September 03, 2009Peter Margulies (Roger Williams University School of Law) has posted The Wages of Playing for Time: Avoidance Doctrines and Interpretive Method in National Security and Foreign Relations Cases on SSRN Here is the abstract: Courts often say that they practice...
Eyckmans & Kverndokk on Tradeable Pollution Permits & Moral concerns
Posted on September 03, 2009Johan Eyckmans and Snorre Kverndokk (Catholic University of Leuven (KUL) - Center for Economic Studies and Ragnar Frisch Centre for Economic Research) have posted Moral Concerns on Tradable Pollution Permits in International Environmental Agreements on SSRN...
Schwartz on Material Adverse Change Clauses
Posted on September 03, 2009Andrew A. Schwartz (University of Colorado Law School) has posted A 'Standard Clause Analysis' of the Frustration Doctrine and the Material Adverse Change Clause on SSRN. Here is the abstract: In the darkest depths of a corporate merger agreement lies...
Lash on Originalism & the 14th Amendment
Posted on September 03, 2009Check out Kurt Lash's post, Originalism and the Fourteenth Amendment on Prawfs. Here is a taste: Two distinctions are key to understanding what is sometimes known as the New Originalism. First, the approach assumes that, at some point, historical information...
Halliday & Scott on Empirical Legal Research re Administrative Justice
Posted on September 03, 2009Simon Halliday and Colin Scott (University of Strathclyde, Glasgow and University College Dublin (UCD) - School of Law ) have posted Administrative Justice (The Oxford Handbook of Empirical Legal Research, Peter Cane, Herbert Kritzer, eds., Oxford, Oxford University Press, 2010)...
Petherbridge on Patent Law Uniformity & the Federal Circuit
Posted on September 03, 2009Lee Petherbridge (Loyola Law School Los Angeles) has posted Patent Law Uniformity? (Harvard Journal Law & Technology, Vol. 22, No. 2, p. 421, Spring 2009) on SSRN. Here is the abstract: Following the difficult economic conditions of the 1970s the...
Oman on Specific Performance & Involuntary Servitude
Posted on September 02, 2009Nathan B. Oman (William & Mary Law School) has posted Specific Performance and the Thirteenth Amendment (Minnesota Law Review, Vol. 93, p. 2020, 2009) on SSRN. Here is the abstract: Black-letter law declares that a contract to perform personal services...
Gilbert on Empathy & Sotomayor's Immigration Decisions
Posted on September 02, 2009Lauren Gilbert (St. Thomas University School of Law) has posted The 26th Mile: Empathy and the Immigration Decisions of Justice Sotomayor on SSRN. Here is the abstract: At the behest of members of the Hispanic National Bar Association (HNBA'), this...
Spamann on Quantative Research & Comparative Law
Posted on September 02, 2009Holger Spamann (Harvard University - Harvard Law School) has posted Large Sample, Quantitative Research Designs for Comparative Law? (American Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract: A substantial body of comparative legal scholarship considers statements applicable...
Crawford on Tax Lessons of the Astor Trial
Posted on September 02, 2009Bridget J. Crawford (Pace University School of Law) has posted Tax Lessons from the Astor Trial (Tax Notes, Vol. 166, No. 9, 2009) on SSRN. Here is the abstract: This article examines the changes that philanthropist Brooke Russell Astor made...
Boon on the Law of Occupation
Posted on September 02, 2009Kristen Boon (Seton Hall University - School of Law) has posted The Future of the Law of Occupation (Kristen E. Boon, THE FUTURE OF THE LAW OF OCCUPATION, Canadian Yearbook of International Law, 2009) on SSRN. Here is the abstract:...
Garda on the White Interest in Integration
Posted on September 02, 2009Robert A. Garda, Jr. (Loyola University of New Orleans College of Law) has posted The White Interest in School Integration on SSRN. Here is the abstract: Scholarship concerning desegregation, affirmative action and voluntary integration is primarily, if not exclusively, focused...
Edwards on Narrative & Legal Authority
Posted on September 01, 2009Linda H. Edwards (William S. Boyd School of Law, UNLV) has posted Once Upon a Time in Law: Myth, Metaphor, and Authority on SSRN. Here is the abstract: We have long accepted the role of narrative in fact statements and...
Pettys on Fritz on Popular Sovereignty
Posted on September 01, 2009Todd E. Pettys (University of Iowa - College of Law) has posted The Vitality of the American Sovereign (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract: In his book American Sovereigns: The People and America?s Constitutional Tradition Before...
Aolain on Gender & Transitional Justice
Posted on September 01, 2009Fionnuala D. Ni Aolain (Transitional Justice Institute (University of Ulster)) has posted Gendered Under-Enforcement in the Transitional Justice Context on SSRN. Here is the abstract: It is generally accepted that the gender dimensions of transition have, until relatively recently, been...
Fadel on An-Na'im on Islam & the Secular State
Posted on September 01, 2009Mohammad Fadel (University of Toronto - Faculty of Law) has posted Islamic Politics and Secular Politics: Can They Co-Exist? (Journal of Law and Religion, Vol. 25, No. 1, 2009) on SSRN. Here is the abstract: Professor Abdullahi An-Na'im's new book,...
Risch on the Rule of Law & Virtual Worlds
Posted on September 01, 2009Michael Risch (West Virginia University College of Law) has posted Virtual Rule of Law (West Virginia Law Review, Vol. 112, No. 1, 2009) on SSRN. Here is the abstract: This article, which follows a presentation at the West Virginia Law...
Bryant on Faigman on Constitutional Fictions
Posted on August 31, 2009Christopher Bryant (University of Cincinnati - College of Law) has posted The Empirical Judiciary (Constitutional Commentary, Vol. 26, 2009) on SSRN. Here is the abstract: This essay reviews David L. Faigman?s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford...
Bayazitova & Shivdasani on TARP
Posted on August 31, 2009Dinara Bayazitova and Anil Shivdasani (University of North Carolina and University of North Carolina) have posted Assessing TARP on SSRN. Here is the abstract: We show that capital infusions under the Troubled Asset Relief Program (TARP) were provided to banks...
Chesterman & Fisher on Outsourcing of Public Services
Posted on August 31, 2009Simon Chesterman and Angelina Fisher (New York University - School of Law, Singapore Programme and New York University - School of Law) have posted Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Introduction) (PRIVATE SECURITY, PUBLIC...
Pardo on Walton on Witness Testimony Evidence
Posted on August 31, 2009Michael S. Pardo (University of Alabama School of Law) has posted Review - 'Witness Testimony Evidence: Argumentation, Artificial Intelligence, and Law' by Douglas Walton (Notre Dame Philosophical Reviews 2008) on SSRN. Here is the abstract: This review essay discusses Douglas...
Cali & Wyss on Democratic Compliance with Human Rights Judgments
Posted on August 31, 2009Basak Cali & Alice Wyss (University College London , University College London and University College London) have posted Why Do Democracies Comply with Human Rights Judgments? A Comparative Analysis of the UK, Ireland and Germany on SSRN. Here is the...
Legal Theory Lexicon: Social Welfare Functions
Posted on August 30, 2009Introduction One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare...
Salim on Legal Transplants in Post-Colonial States
Posted on August 29, 2009Mohammad Rizal Salim (The University of Nottingham Malaysia campus) has posted Are Legal Transplants Impossible? (Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract: The Malaysian case Soo Boon Siong @ Saw Boon Siong v Saw Fatt Seong...
Legal Theory Bookworm
Posted on August 29, 2009The Legal Theory Bookworm recommends The Unbounded Home: Property Values Beyond Property Lines by Lee Anne Fennell. Here is a description: The Unbounded Home grapples with a core metropolitan reality -- that the value and meaning of a home extend...
Download of the Week
Posted on August 29, 2009The Download of the Week is Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause by Mitchell N. Berman. Here is the abstract: How should we settle on a theory of constitutional interpretation? Take...
Katz on Amar on Bush v. Gore
Posted on August 28, 2009Ellen D. Katz (University of Michigan Law School) has posted From Bush v. Gore to NAMUDNO: A Response to Professor Amar (Florida Law Review, Forthcoming, U of Michigan Public Law Working) on SSRN. Here is the abstract: In his Dunwoody...
Pardo on Empire
Posted on August 28, 2009Michael S. Pardo (University of Alabama School of Law) has posted Empire (Alabama Law Review, Vol. 60, pp. 1201-1208, 2009) on SSRN. Here is the abstract: This essay explores the concept of empire and the problems with delineating its scope...
Sherman on the Class Action Fairness Act
Posted on August 28, 2009Edward F. Sherman (Tulane University Law School) has posted The Class Action Fairness Act and the Federalization of Class Actions (Federal Rules Decisions, Vol. 238, p. 504, 2007) on SSRN. Here is the abstract: The Class Action Fairness Act of...
Armstrong on Statutory Termination of Copyright Transfer & Open Access
Posted on August 28, 2009Timothy K. Armstrong (University of Cincinnati College of Law) has posted Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public on SSRN. Here is the abstract: Federal law limits the free alienability of copyright...
Johnson on the Nomination and Confirmation of Sonia Sotomayor
Posted on August 28, 2009Kevin R. Johnson (University of California, Davis - School of Law) has posted An Essay on the Nomination and Confirmation of the First Latina Justice on the U.S. Supreme Court: The 'High-Tech Lynching' of a 'Wise Latina'? on SSRN. Here...
Duhl on Conscious Ambiguity in Contract Drafting
Posted on August 28, 2009Gregory M. Duhl (William Mitchell College of Law) has posted Conscious Ambiguity: Slaying Cerberus in the Interpretation of Contractual Inconsistencies (University of Pittsburgh Law Review, Vol. 71, No. XX, 2009) on SSRN. Here is the abstract: In United Rentals, Inc...
Berman on Reflective Equilibrium & Constitutional Interpretation
Posted on August 27, 2009Mitchell N. Berman (University of Texas School of Law) has posted Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause on SSRN. Here is the abstract: How should we settle on a theory of...
Cronin on the Visual Artists Rights Act & Conceptual Art
Posted on August 27, 2009Charles Cronin (ISP/Yale Law School) has posted Dead on the Vine: Living and Conceptual Art and Vara on SSRN. Here is the abstract: The Visual Artists Rights Act of 1990 (VARA), arriving in the wake of U.S. adherence to the...
Conference Announcement: Dworkin's Justice for Hedgehogs at BU
Posted on August 27, 2009Justice for Hedgehogs: A Conference on Ronald Dworkin?s Forthcoming Book Boston University School of Law September 25-26, 2009 (>>Download schedule and brochure (pdf format)) ?The fox knows many things, but the hedgehog knows one big thing.? - Archilochus Description: Boston...
Brooks on the Moral Sentiments & Justifcation of Punishment
Posted on August 27, 2009Thom Brooks (Newcastle University - Newcastle Law School) has posted Moral Sentiments and the Justification of Punishment on SSRN. Here is the abstract: What is the relationship between our moral sentiments and the justification of punishment? One position is that...
Shachar & Hirschl on Legal Pluralism, Religious Accomodation, and Citizenship
Posted on August 27, 2009Ayelet Shachar and Ran Hirschl (University of Toronto - Faculty of Law and University of Toronto - Faculty of Law) have posted The New Wall of Separation: Permitting Diversity, Restricting Competition (Cardozo Law Review, Vol. 30, pp. 2535-2560, 2009) on...
Inazu on Charitable Solicitation & the First Amendment
Posted on August 27, 2009John D. Inazu (Duke University School of Law) has posted Making Sense of Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law (Marquette Law Review, Vol. 92, No. 3, pp. 551-589, 2009) on SSRN. Here is the abstract: The Supreme...
Sinden on Revenue-Neutral Cap and Trade
Posted on August 26, 2009Amy Sinden (Temple University - James E. Beasley School of Law) has posted Revenue-Neutral Cap and Trade (Environmental Law Reporter, Forthcoming) on SSRN. Here is the abstract: Designing climate change regulation presents a dilemma. Because 32 to 40 percent of...
Cherry & Wong on "Clawbacks"
Posted on August 26, 2009Miriam A. Cherry and Jarrod Wong (University of the Pacific (UOP) - McGeorge School of Law) have posted Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes (Minnesota Law Review, Vol. 94, 2009) on SSRN...
Markie on Political Obligation & Particularity
Posted on August 26, 2009P. J. Markie has posted Political Obligation and the Particularity Problem (Ratio 22 (3):322-337) on PhilPapers. Here is the abstract: Natural duty theorists of political obligation try to base a moral duty to obey the law on some natural duty,...
Goldstein on the Balance of Equities & Statutory Injunctions
Posted on August 26, 2009Jared A. Goldstein (Roger Williams University - School of Law) has posted Equitable Balancing in the Age of Statutes on SSRN. Here is the abstract: For the past several decades, the Supreme Court has held that the decision whether to...
Miller on Judging in Bad Faith
Posted on August 26, 2009Eric J. Miller (Saint Louis University - School of Law) has posted Judging in Bad Faith on SSRN. Here is the abstract: Must judges apply the law 'sincerely' or 'in good faith?' H.L.A Hart famously argued that, if legal officials...
Welcome to the Blogosphere . . .
Posted on August 26, 2009. . . to Intellectual Competence and the Death Penalty by Kevin McGrew.
Hanna on Coercive Control & Abused Women
Posted on August 26, 2009Cheryl Hanna (Vermont Law School) has posted The Paradox of Progress: Translating Evan Stark's Coercive Control into Legal Doctrine for Abused Women (Violence Against Women, Forthcoming) on SSRN. Here is the abstract: This essay examines Evan Stark's model of coercive...
Fletcher on the Solicitor General in Indian Law Cases
Posted on August 25, 2009Matthew L. M. Fletcher (Michigan State University College of Law) has posted The Tenth Justice Lost in Indian Country on SSRN. Here is the abstract: This short paper prepared for the 2009 Federal Bar Association?s Annual Meeting offers preliminary results...
Hochschild on Expansion of the Franchise
Posted on August 25, 2009Jennifer Hochschild (Harvard University) has posted If Democratic Theory Calls for Informed Voters, Why is it Democratic to Expand the Franchise? on SSRN. Here is the abstract: Three uncontroversial points add up to a paradox: 1) Almost every democratic theorist...
Sloane on Reisman on International Law
Posted on August 25, 2009Robert D. Sloane (Boston University - School of Law) has posted More than What Courts Do: Jurisprudence, Decision, and Dignity - In Brief Encounters and Global Affairs (Yale Journal of International Law, Vol. 34, pp. 517-524, 2009) on SSRN. Here...
Fox & Stephenson on Judicial Review and Democratic Failure
Posted on August 25, 2009Justin Fox and Matthew Stephenson (Yale University and Harvard University - Harvard Law School) have posted Judicial Review and Democratic Failure on SSRN. Here is the abstract: Abstract: We use an agency model to analyze the impact of judicial review...
Hafemeister & Spinos on a Fiduciary Duty of Physicians to Disclose Emergent Medical Risks
Posted on August 25, 2009Thomas L. Hafemeister and Selina Spinos (University of Virginia School of Law) have posted Lean on Me: A Physician?s Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient (Washington University Law Review, Vol. 86, No. 5, 2009) on...
Duncan on the Expressive Language of the Criminal Law
Posted on August 25, 2009Martha Grace Duncan (Emory University - School of Law) has posted Beauty in the Dark of Night; The Pleasures of Form in Criminal Law (Emory Law Journal, Vol. 59, 2010) on SSRN. Here is the abstract: After learning that the...
Madden on Appellate & Judicial Review in Canada
Posted on August 24, 2009Mike Madden (Dalhousie University) has posted Conquering the Common Law Hydra: A Consolidated Guide to Standards of Appellate and Judicial Review on SSRN. Here is the abstract: Just as Hercules eventually conquered the Hydra by using a firebrand to cauterize...
Fennell on the Unbounded Home
Posted on August 24, 2009Lee Anne Fennell (University of Chicago Law School) has posted The Unbounded Home: Property Values Beyond Property Lines (Excerpts) (THE UNBOUNDED HOME: PROPERTY VALUES BEYOND PROPERTY LINES, Forthcoming) on SSRN. Here is the abstract: The Unbounded Home grapples with a...
Elhauge on the Google Books Settlement
Posted on August 24, 2009Einer Elhauge (Harvard University - Harvard Law School) has posted Why the Google Books Settlement is Procompetitive on SSRN. Here is the abstract: Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken...
Gluzman on Universal Jurisdiction
Posted on August 24, 2009Helena Gluzman (University of Toronto) has posted On Universal Jurisdiction - Birth, Life and a Near-Death Experience? (LAW & GLOBALIZATION VDM Publishing, 2009) on SSRN. Here is the abstract: This paper investigates the topic of universal jurisdiction, ie the supranational...
Prize Announcement: Christopher Baldy Prizes in Law & Social Policy
Posted on August 24, 2009THE CHRISTOPHER BALDY PRIZES AT THE UNIVERSITY AT BUFFALO LAW SCHOOL The Baldy Center for Law and Social Policy at the University at Buffalo Law School, The State University of New York, is pleased to announce the establishment of three...
Cahn & Carbone on Restrictions on Contraception
Posted on August 24, 2009Naomi Cahn and June Carbone (George Washington University - Law School and University of Missouri at Kansas City School of Law) have posted Contraception: Securing Feminism?s Promise on SSRN. Here is the abstract: This paper traces the history of attempts...
Hoyos on Constitutional Conventions & Popular Sovereignty
Posted on August 24, 2009Roman J. Hoyos (Duke University School of Law) has posted From an 'Offspring of Revolution' to an 'Offspring of Law:' The Invention of a Law of Constitutional Conventions and the Transformation of American Democracy on SSRN. Here is the abstract:...
Legal Theory Lexicon: Balancing Tests
Posted on August 23, 2009Introduction Balancing tests are ubiquitous in American law. From the Due Process Clause to the Freedom of Speech and from the federal joinder rules to personal jurisdiction, U.S. law makes the outcome of legal disputes dependent on the balancing of....
Legal Theory Bookworm
Posted on August 22, 2009The Legal Theory Bookworm recommends Preference Change: Approaches from philosophy, economics and psychology, edited by Till Grüne-Yanoff & Sven Ove Hansson. Here is a description: The fact that preferences change is a pressing but unresolved problem for philosophy and the...
Download of the Week
Posted on August 22, 2009Kurt T. Lash (Loyola Law School Los Angeles) has posted The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art on SSRN. Here is the abstract: Historical accounts of the Privileges...
March on Purposivism in Islamic Law
Posted on August 21, 2009Andrew F. March (Yale University) has posted Islamic Legal Theory, Secularism and Religious Pluralism: Is Modern Religious Freedom Sufficient for the Shari'a 'Purpose [Maqsid]' of 'Preserving Religion [Hifz Al-Din]?' on SSRN. Here is the abstract: Perhaps the most popular trend...
Gardner on Voter Dignity & Constitutional Rights in the Democratic Process
Posted on August 21, 2009James A. Gardner (University at Buffalo Law School, SUNY) has posted The Dignity of Voters - A Dissent (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract: Since the waning days of the Burger Court, the federal...
Templin on Marriage Contracts in Art
Posted on August 21, 2009Benjamin A. Templin (Thomas Jefferson School of Law) has posted The Marriage Contract in Fine Art (Northern Illinois University Law Review, Vol. 30, No. 3, 2009) on SSRN. Here is the abstract: This paper studies the depiction of the marriage...
Hasnas on Corporate Criminal Liability
Posted on August 21, 2009John Hasnas (Georgetown University) has posted The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract: This article argues that there is no justification for corporate criminal...
Snow on the First Amendment, Fair Use, & Summary Judgment
Posted on August 21, 2009Ned Snow (University of Arkansas at Fayetteville - School of Law) has posted Fair Use, Summary Judgment, and the Constitution on SSRN. Here is the abstract: Summary judgment has become commonplace to decide issues of fair use in copyright cases....
Kolber on Empirical Desert
Posted on August 21, 2009Adam J. Kolber (University of San Diego School of Law) has posted How to Improve Empirical Desert (Brooklyn Law Review, Symposium: 'Is Morality Universal and Should the Law Care?, 2010) on SSRN. Here is the abstract: According to advocates of...
Porat & Stein on Liability for Future Harm
Posted on August 21, 2009Ariel Porat and Alex Stein (Tel Aviv University and Yeshiva University - Benjamin N. Cardozo School of Law) have posted Liability for Future Harm (PERSPECTIVES ON CAUSATION, Richard S. Goldberg, ed., Hart Publishing, 2010) on SSRN. Here is the abstract:...
Beiner on Bayle, Spinoza, and Rousseau
Posted on August 20, 2009Ronald Beiner (University of Toronto at Mississauga) has posted Bayle Between Spinoza and Rousseau on SSRN. Here is the abstract: A commentary on Pierre Bayle's 'Pensees diverses,' aiming to clarify how Bayle mediates between Spinoza and Rousseau.
Law & Zaring on Supreme Court Citations to Legislative History
Posted on August 20, 2009David S. Law (Washington University School of Law in St. Louis; Washington University, St. Louis - Department of Political Science) & David T. Zaring (University of Pennsylvania - Legal Studies Department) have posted Why Supreme Court Justices Cite Legislative History:...
Wasserman on United States v. Klein
Posted on August 20, 2009Howard M. Wasserman (Florida International University - College of Law) has posted The Irrepressible Myth of Klein on SSRN. Here is the abstract: This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on...
Long on Certification from Federal to State Courts
Posted on August 20, 2009Justin R. Long (University of Connecticut School of Law) has posted Against Certification (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract: Certification is the process whereby federal courts, confronted by an open question of state law in...
Walen on the Morality of Preventive Detention for Terrorism
Posted on August 20, 2009Alec D. Walen (Institute for Philosophy and Public Policy) has posted The Morality of Preventive Detention for Suspected Terrorists; Possibilities and Limits for a Liberal Society on SSRN. Here is the abstract: The basic liberal commitment to respecting the liberty...
Mossoff on IP & the Birth of the Administrative State
Posted on August 20, 2009Adam Mossoff (George Mason University - School of Law) has posted The Use and Abuse of IP at the Birth of the Administrative State (University of Pennsylvania Law Review, Vol. 157, No. 6, 2009) on SSRN. Here is the abstract:...
Lash on the Origins of the Privileges and Immunities Clause
Posted on August 19, 2009Kurt T. Lash (Loyola Law School Los Angeles) has posted The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art on SSRN. Here is the abstract: Historical accounts of the Privileges...
Pauli on Broadcast Freedom & Genocide Prevention
Posted on August 19, 2009Carol Pauli (Loyola University New Orleans - School of Law) has posted Killing the Microphone: When Broadcast Freedom Should Yield to Genocide Prevention (Alabama Law Review, Forthcoming) on SSRN. Here is the abstract: When powerful radio broadcasts exhort listeners to...
Denning & Reynolds on District of Columbia v. Heller in the Lower Courts
Posted on August 19, 2009Brannon P. Denning and Glenn Harlan Reynolds (Cumberland School of Law and University of Tennessee College of Law) have posted Heller High Water(Mark?) Lower Courts and the New Right to Keep and Bear Arms (Hastings Law Journal, Vol. 60, p....
Choi & Pritchard on the Impact of Tellabs v. Makor Issues & Rights
Posted on August 19, 2009Stephen J. Choi and Adam C. Pritchard (New York University - School of Law and University of Michigan Law School) have posted The Supreme Court?s Impact on Securities Class Actions: An Empirical Assessment of Tellabs on SSRN. Here is the...
Levin on Interstate Conflicts Over Same Sex Legal Relationships
Posted on August 19, 2009Hillel Y. Levin (University of Georgia Law School) has posted Resolving Interstate Conflicts Over Marriage, Marriage-Like, and Marriage-Lite Relationships on SSRN. Here is the abstract: Only six states currently permit same-sex couples to wed. However, several states that balk at...
Burleson on International Human Rights Law & Recognition of Gay and Lesbian Families
Posted on August 18, 2009Elizabeth Burleson (USD School of Law) has posted International Human Rights Law, Co-Parent Adoption, and the Recognition of Gay and Lesbian Families on SSRN. Here is the abstract: Children would benefit substantially if governments legally recognized same sex marriages and...
Fennell & Roin on Resident's Stakes in Their Homes
Posted on August 18, 2009Lee Anne Fennell and Julie Roin (University of Chicago Law School and University of Chicago Law School) have posted Controlling Residential Stakes (University of Chicago Law Review, Vol. 77, No. 1, 2010) on SSRN. Here is the abstract: Local communities...
Hurt on "Windfalls"
Posted on August 18, 2009Christine Hurt (University of Illinois College of Law) has posted The Windfall Myth on SSRN. Here is the abstract: Currently, decrying others? profits as windfalls is popular among journalists, policy makers, law makers, industry participants, and the public at large...
Martinico on European Constitutional Law
Posted on August 18, 2009Giuseppe Martinico (Scuola Superiore Sant'Anna) has posted From the Constitution for Europe to the Reform Treaty: A Literature Survey on European Constitutional Law (Perspectives on Federalism, Vol. 1, Issue 1, pp. 13-41, Summer 2009) on SSRN. Here is the abstract:...
Saxer on Banishing Sex Offenders
Posted on August 18, 2009Shelley Ross Saxer (Pepperdine University - School of Law) has posted Banishment of Sex Offenders: Liberty, Protectionism, Justice, and Alternatives (Washington University Law Review, Vol.. 86, p. 1397, 2009) on SSRN. Here is the abstract: Although most sex offenses are...
Miron & Tetelbaum on the Effects of the Federal Uniform Drinking Age Act
Posted on August 18, 2009Jeffrey A. Miron and Elina Tetelbaum (Harvard University - Department of Economics and Yale University - Law School) have posted Did the Federal Drinking Age Law Save Lives? (Regulation, Vol. 32, No. 1, pp. 12-15, Spring 2009) on SSRN. Here...
Legal Theory Lexicon: Procedural Justice
Posted on August 17, 2009Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic...
Yung on the War on Sex Offenders
Posted on August 17, 2009Corey Rayburn Yung (The John Marshall Law School) has posted The Emerging Criminal War on Sex Offenders on SSRN. Here is the abstract: This article addresses four central questions. First, what is the difference between normal law enforcement policy and...
Fineman on Gender Equality
Posted on August 17, 2009Martha Albertson Fineman (Emory University - School of Law) has posted Equality: Still Illusive after All These Years (Emory Public Law Research 09-62, SOCIAL CITIZENSHIP AND GENDER, Joanna Grossman & Linda McClain, eds., Cambridge University Press, Forthcoming) on SSRN...
Andreen on Water Pollution Control & Delegated Federalism
Posted on August 17, 2009William L. Andreen (University of Alabama School of Law) has posted Delegated Federalism Versus Devolution: Some Insights from the History of Water Pollution Control (PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM?S CORE QUESTION, William W...
Conference Announcement: LatCrit XIV at American University
Posted on August 17, 2009The full preliminary conference program schedule for LatCrit XIV and the LatCrit/SALT New Faculty Development Workshop, hosted by American University Washington College of Law Oct. 1-4, has been released. It is here: www.tinyurl.com/LatCritXIV-program Hotel and conference registration materials are here:...
Ohm on Anonymization & Privacy
Posted on August 17, 2009Paul Ohm (University of Colorado Law School) has posted Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization on SSRN. Here is the abstract: Computer scientists have recently undermined our faith in the privacy-protecting power of anonymization, the...
Samaha on Randomization in Adjudication
Posted on August 17, 2009Adam Samaha (University of Chicago - Law School) has posted Randomization in Adjudication (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract: Flipping a coin to decide a case is among the most serious forms of judicial...
Strauss on Modernization & Judicial Review
Posted on August 17, 2009David A. Strauss (University of Chicago Law School) has posted The Modernizing Mission of Judicial Review on SSRN. Here is the abstract: Constitutional interpretation usually looks to the past--to an old text, to history, to precedent, to tradition ? in...
Pinard on Collateral Consequences of Criminal Convictions
Posted on August 15, 2009Michael Pinard (University of Maryland - School of Law) has posted Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity on SSRN. Here is the abstract: This article explores the racial dimensions of the various collateral consequences that...
Legal Theory Bookworm
Posted on August 15, 2009The Legal Theory Bookworm recommends Made with Words: Hobbes on Language, Mind, and Politics by Philip Pettit. Here is a description: Hobbes's extreme political views have commanded so much attention that they have eclipsed his work on language and mind,...
Download of the Week
Posted on August 15, 2009The Download of the Week is Judicial Character (and Does it Matter) by Paul Horwitz. Here is the abstract: This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard A. Posner's How Judges Think, H...
Burch on Weinstein on Complex Litigation
Posted on August 14, 2009Elizabeth Chamblee Burch (Florida State University - College of Law) has posted A New Way Forward: A Response to Judge Weinstein (Cardozo De Novo, Vol. 2009, p. 168, 2009) on SSRN. Here is the abstract: This short essay responds to...
van der Burg on Bioethics & the Law
Posted on August 14, 2009Wibren van der Burg (Erasmus University Rotterdam- School of Law) has posted Bioethics and Law (OXFORD COMPANION TO BIOETHICS, Second Edition, Forthcoming) on SSRN. Here is the abstract: In this paper, I begin with discussing the problem of defining concepts...
Cohen on Precedent-Based Voting Paradoxes
Posted on August 14, 2009David S. Cohen (Drexel University - Earle Mack School of Law) has posted The Precedent-Based Voting Paradox on SSRN. Here is the abstract: A voting paradox arises when the outcome of a case is the opposite of the resolution of...
Smith on the Establishment Clause
Posted on August 14, 2009Steven Douglas Smith (University of San Diego School of Law) has posted The Establishment Clause and the 'Problem of the Church' on SSRN. Here is the abstract: This essay, presented at a conference on Law and Religion at Princeton in...
Simon on IP for Public Biobanks
Posted on August 14, 2009Brenda M. Simon (Stanford Law School) has posted How to Get a Fair Share: IP Policies for Publicly Supported Biobanks (Stanford Journal of Law, Science & Policy, Forthcoming) on SSRN. Here is the abstract: To realize the benefits of personalized...
Cushman on Legal Change & Securities Law
Posted on August 13, 2009Barry Cushman (University of Virginia School of Law) has posted The Securities Laws and the Mechanics of Legal Change (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract: This essay, prepared for the Virginia Law Review symposium marking the...
Woolhandler & Collins on Tarble's Case
Posted on August 13, 2009Ann Woolhandler and Michael G. Collins (University of Virginia - School of Law and University of Virginia School of Law) have posted The Story of Tarble's Case: State Habeas and Federal Detention (FEDERAL COURTS STORIES, Vicki C. Jackson & Judith...
Nachbar on the Rule of Law
Posted on August 13, 2009Thomas B. Nachbar (University of Virginia School of Law) has posted Defining the Rule of Law Problem (The Rule of Law Handbook: A Practitioner's Guide, Katherine Gorove & Captain Thomas B. Nachbar, eds., Center for Law and Military Operations, 2008)....
Black on Reputational Damges in Securities Litigation
Posted on August 13, 2009Barbara Black (University of Cincinnati - College of Law) has posted Reputational Damages in Securities Litigation (Journal of Corporation Law, Forthcoming) on SSRN. Here is the abstract: This short paper, originating in remarks made at the Institute for Law and...
Melnick on Judicial Power in the Civil Rights State
Posted on August 13, 2009R. Shep Melnick (Boston College) has posted Judicial Power in the Civil Rights State: an Empirical Investigation on SSRN. Here is the abstract: This paper examines the role courts and agencies play in enforcing civil rights statutes. It argues (1)...
Peerenboom on Sequencing & Development
Posted on August 13, 2009Randall Peerenboom (La Trobe University, Faculty of Law and Management) has posted Rule of Law, Democracy and the Sequencing Debate: Lessons from China and Vietnam on SSRN. Here is the abstract: Sequencing has recently become a bad word in development...
Saxer on the Religious Land Use & institutionalized Persons Act, Land Use Regulation, and Building Codes
Posted on August 13, 2009Shelley Ross Saxer (Pepperdine University - School of Law) has posted Assessing RLUIPA's Application to Building Codes and Aesthetic Land Use Regulation (Albany Government Law Review, Vol. 2, 2009) on SSRN. Here is the abstract: This article presents the author?s...
McClain & Grossman on Women's Equal Citizenship
Posted on August 12, 2009Linda C. McClain and Joanna L. Grossman (Boston University - School of Law and Hofstra University - School of Law) have posted Gender Equality: Dimensions of Women's Equal Citizenship (GENDER EQUALITY: DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP, Linda C...
McDonald on Campaign Finance Regulation & Emotion
Posted on August 12, 2009Barry McDonald (Pepperdine University - School of Law) has posted Campaign Finance Regulation and the Marketplace of Emotions (Pepperdine Law Review, Vol. 36, 2009) on SSRN. Here is the abstract: This essay examines the validity, in light of new empirical...
Woolhandler & Collins on Holmes & Federal Question Jurisdiction
Posted on August 12, 2009Ann Woolhandler and Michael G. Collins (University of Virginia - School of Law and University of Virginia School of Law) have posted Federal Question Jurisdiction and Justice Holmes (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract: mith...
White on Intellectual History & the Founding
Posted on August 12, 2009G. Edward White (University of Virginia School of Law) has posted Revisiting the Ideas of the Founding (University of Cincinnati Law Review, Vol. 77, June 2009) on SSRN. Here is the abstract: When the ideas of the founding period of...
Taussig on Good Faith in Class Actions
Posted on August 12, 2009Eran B. Taussig (University of Pennsylvania Law School) has posted Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Doctrine in Class Action Proceedings (St. John's Law Review , Vol. 84, No. 1, 2010) on SSRN. Here is the...
Henderson on Credit Derivates & Insurance
Posted on August 12, 2009M. Todd Henderson (University of Chicago - Law School) has posted Credit Derivatives Are Not 'Insurance' on SSRN. Here is the abstract: According to the conventional wisdom, credit derivative contracts are a form of insurance. This view is held by...
O'Hear on Luna on Restorative Justice
Posted on August 11, 2009Michael M. O'Hear (Marquette University Law School) has posted Restorative Justice: Dangers of the Big Tent (CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds., 2009) on SSRN. Here is the abstract: This comment responds to Erik Luna's essay "In...
Simon, Stenstrom, & Read on a Partisanship & Prosecutorial Decision-Making Experiment
Posted on August 11, 2009Dan Simon, Doug Stenstrom and Stephen J. Read (USC Gould School of Law, USC Department of Psychology , University of Southern California and University of Southern California - Department of Psychology) have posted Partisanship and Prosecutorial Decision Making: An Experiment...
Mitchell on Retroactive Amelioration of Punishment
Posted on August 11, 2009S. David Mitchell (University of Missouri) has posted In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration on SSRN. Here is the abstract: The legislative decision to amend a statute and reduce a sentence but...
Perry on Murray on the Right to Moral Freedom
Posted on August 11, 2009Michael J. Perry (Emory University School of Law) has posted Religious Freedom and Beyond: The Right to Moral Freedom on SSRN. Here is the abstract: At the Second Vatican Council (1962-65), the celebrated American Jesuit John Courtney Murray played a...
Delacroix on Commitment and Legal & Moral Normativity
Posted on August 11, 2009Sylvie Delacroix (University College London - Faculty of Laws) has posted You'd Better Be Committed: Legal Norms and Normativity on SSRN. Here is the abstract: There are many ways in which one may come to be committed to something. Commitment...
Katz on Adverse Possession & Morality
Posted on August 11, 2009Larissa M. Katz (Queen's University - Faculty of Law) has posted The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law (McGill Law Review, Forthcoming) on SSRN. Here is the abstract: On what grounds can we justify the...
Horwitz on Judicial Character
Posted on August 10, 2009Paul Horwitz (University of Alabama School of Law) has posted Judicial Character (and Does it Matter) (Constitutional Commentary (forthcoming)) on SSRN. Here is the abstract: This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard...
De Coninck & Du Laing on Evolutionary Functionalism & Comparative Law
Posted on August 10, 2009Julie De Coninck and Bart Du Laing (Catholic University of Leuven (KUL) - Faculty of Law and Ghent University - Department of Legal Theory and Legal History) have posted Comparative Law, Behavioural Economics and Contemporary Evolutionary Functionalism on SSRN...
Williams & George on Panel on Multidistrict Litigation Tranfer Orders
Posted on August 10, 2009Margaret S Williams and Tracey E. George (Federal Judicial Center and Vanderbilt University - School of Law) have posted Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation on SSRN. Here is the abstract: This paper provides the preliminary...
Buxbaum on Territoriality & Legislative Authority
Posted on August 10, 2009Hannah L. Buxbaum (Indiana University School of Law-Bloomington) has posted Territory, Territoriality, and the Resolution of Jurisdictional Conflict (American Journal of Comparative Law, Vol. 57, No. 2, pp. 631-676, 2009, Indiana Legal Studies Research Paper No...
Benesh, Steigerwalt, & Scherer on Public Perceptions of Lower Federal Courts
Posted on August 10, 2009Sara C. Benesh , Amy Steigerwalt and Nancy Scherer (University of Wisconsin - Milwaukee, Georgia State University and Wellesley College - Political Science) have posted Public Perceptions of the Lower Federal Courts on SSRN. Here is the abstract: The lower...
Legal Theory Lexicon: Intention
Posted on August 09, 2009Introduction Was it intentional? Did he intend to kill? What were the original intentions of the framers of the United States Constitution? "Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of...
Legal Theory Bookwrom
Posted on August 08, 2009The Legal Theory Bookworm recommends The Development of Ethics by Terence Irwin. There are three volumes: Volume I: rom Socrates to the Reformation Terence Irwin presents a historical and critical study of the development of moral philosophy over two thousand...
Download of the Week
Posted on August 08, 2009The Download of the Week is Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation by Ward Farnsworth, Dustin F. Guzior, and Anup Malani. Here is the abstract: Most scholarship on statutory interpretation discusses what courts should do with ambiguous...
Collett on Judicial Review of Constitutional Amendments
Posted on August 07, 2009Teresa Stanton Collett (University of St. Thomas School of Law) has posted Judicial Independence and Accountability in an Age of Unconstitutional Constitutional Amendments on SSRN. Here is the abstract: Selection of American judges is one of the battle fields in...
Chandler on Technology & Equality
Posted on August 07, 2009Jennifer A. Chandler (University of Ottawa - Faculty of Law - Common Law Section) has posted Technological Self-Defense and Equality on SSRN. Here is the abstract: This article seeks to clarify the relationship between extra-legal self-help, technology and equality...
Symeonides on a New Restatement of Conflicts
Posted on August 07, 2009Symeon C. Symeonides (Willamette University - College of Law) has posted A New Conflicts Restatement: Why Not? (Journal of Private International Law, Vol. 5, 2009) on SSRN. Here is the abstract: The Second Conflicts Restatement, the drafting of which began...
Baines on Feminist Judges
Posted on August 07, 2009Beverley Baines (Queen's University - Faculty of Law) has posted Must Feminist Judges Self-Identify as Feminist? (GENDER AND JUDGING, Ulrike Schultz and Gisela Shaw, eds. Hart Publishing, Forthcoming) on SSRN. Here is the abstract: Feminist legal scholars want judges to...
Imwinkelreid on the Implied Obligation of Good Faith in Contract
Posted on August 07, 2009Edward J. Imwinkelreid (University of California, Davis - School of Law) has posted The Implied Obligation of Good Faith in Contract Law: Is it Time to Write its Obituary? (Texas Tech Law Review, Forthcoming) on SSRN. Here is the abstract:...
Badawi on Relational Governance & Contract Damages
Posted on August 07, 2009Adam B. Badawi (University of Chicago - Law School) has posted Relational Governance and Contract Damages: Evidence from Franchising on SSRN. Here is the abstract: The literature on contract theory expects parties to use incentive mechanisms that minimize the costs...
Kostritsky on Kraus & Scott on Contract Terms & Purposes
Posted on August 06, 2009Juliet P. Kostritsky (Case Western Reserve University - School of Law) has posted The Means/Ends Dilemma in Contract Interpretation: A Response to Professors Kraus and Scott: How the Intractability of Express Language Affects Interpretive Authority and Legal Interventions in Contracts...
Lavranos on Competing Jurisdictions of International Courts & Tribunals
Posted on August 06, 2009Nikos Lavranos (European University Institute (EUI)) has posted On the Need to Regulate Competing Jurisdictions between International Courts and Tribunals on SSRN. Here is the abstract: Competing jurisdiction is a relatively new but increasingly important phenomenon in international law...
Bastmeijer & van Hengel on Protecting Antarctica
Posted on August 06, 2009Kees Bastmeijer and Steven van Hengel (Tilburg University) have posted The Role of the Protected Area Concept in Protecting the World?s Largest Natural Reserve: Antarctica on SSRN. Here is the abstract: Should the entire Antarctic continent and the surrounding islands...
Bertram on Cohen
Posted on August 06, 2009Chris Bertram offers an appreciation of Jerry Cohen on Crooked Timber. A taste: Jerry had and set really high standards in philosophy. In his published work and in professional contexts, he always presented his arguments with honesty, rigour, insight and...
Hage on Legal Truth & Conceptions of Law
Posted on August 06, 2009Jaap Hage (University of Maastricht - Faculty of Law) has posted Two Conceptions of Law and Their Implications for Legal Truth on SSRN. Here is the abstract: The questions whether legal judgements are true or false and what makes them...
Grimmelmann on the Ethics of Copyright
Posted on August 06, 2009James Grimmelmann (New York Law School) has posted The Ethical Visions of Copyright Law (77 Fordham Law Review 2005 (2009)) on SSRN. Here is the abstract: This symposium essay explores the imagined ethics of copyright: the ethical stories that people...
Book Announcement: The Therapy of Desire by Nussbaum in Paperback
Posted on August 06, 2009Here is the announcement: The Therapy of Desire: Theory and Practice in Hellenistic Ethics Martha C. Nussbaum To read the entire book description, please visit: http://press.princeton.edu/titles/8894.html The Epicureans, Skeptics, and Stoics practiced philosophy not as a detached intellectual discipline, but...
Burk & Lemley on Industry Variation & Patent Law
Posted on August 06, 2009Dan L. Burk and Mark A. Lemley (University of California, Irvine Law School and Stanford Law School) have posted Courts and the Patent System (Regulation, Vol. 32, No. 2, pp. 18-23, Summer 2009) on SSRN. Here is the abstract: Innovation...
Frischmann on "Patent Pull"
Posted on August 06, 2009Brett M. Frischmann (Loyola University of Chicago - Law School) has posted The Pull of Patents (Fordham Law Review, Vol. 77, No. 5, p. 2143, 2008) on SSRN. Here is the abstract: This essay makes two related contributions. First, it...
DuVivier on Wind Rights Severance
Posted on August 05, 2009K.K. DuVivier (University of Denver Sturm College of Law) has posted Animal, Vegetable, Mineral - Wind? The Severed Wind Power Rights Conundrum on SSRN. Here is the abstract: U.S. wind power capacity increased fifty percent in 2008, making wind one...
Duong on Southeast Asian Women in Law & the Legal Academy
Posted on August 05, 2009Wendy Duong (University of Denver Sturm College of Law) has posted From Puccini?s Madam Butterfly to the Statue of the Awaiting Wife in North Vietnam: Where is Portia in the Vietnamese American Experience? on SSRN. Here is the abstract: Using...
Batchelder on Savings Incentives
Posted on August 05, 2009Lily L. Batchelder (New York University School of Law) has posted Savings Incentives with Insurance Objectives: A Bankrupt Approach? on SSRN. Here is the abstract: This article argues that existing savings incentives with insurance objectives don?t work, and there is...
Gerald Cohen: 1941 ? 5 August 2009
Posted on August 05, 2009I am saddened to report that Gerald (Jerry) has passed away. Here is a brief excerpt from the Wikipedia entry: Gerald Allan "Jerry" Cohen (1941 ? 5 August 2009) was a Marxist political philosopher, formerly the Chichele Professor of Social...
Park on Jury Trials in Korea
Posted on August 05, 2009Ryan Park (Harvard University - Harvard Law School) has posted The Globalization of the Jury Trial: Lessons and Insights from Korea (American Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract: Recent years have witnessed the widespread diffusion...
Book Announcement: Religion & the Constitution by Greenawalt
Posted on August 05, 2009Kent Greenawalt's Religion and the Constitution is now available in paperback. Here is the announcement: Religion and the Constitution Volume I: Free Exercise and Fairness Kent Greenawalt One of Choice's Outstanding Academic Titles for 2006 To read the entire book...
Beardslee, Nanda, Wilkins, & Coates on Corporate Strategies for Purchasing Legal Services
Posted on August 05, 2009Michele DeStefano Beardslee, Ashish Nanda, David B. Wilkins, and John C. Coates IV (University of Miami, School of Law, Harvard Law School, Harvard University - Harvard Law School and Harvard Law School) have posted Hiring Teams from Rivals: Theory and...
Kaswan on Decentralizing Cap & Trade
Posted on August 05, 2009Alice Kaswan (University of San Francisco - School of Law) has posted Decentralizing Cap-and-Trade? The Question of State Stringency (San Diego Journal of Climate & Energy Law, Vol. 1, 2009) on SSRN. Here is the abstract: A cap-and-trade program is...
Heller on Prosecutors in International Criminal Law
Posted on August 04, 2009Kevin Jon Heller (Melbourne Law School) has posted Completion Strategies and the Office of the Prosecutor on SSRN. Here is the abstract: With the exception of the ICC, which is intended to be a permanent institution, all of the past...
Dreyfuss on Emerging Economies & IP Norms
Posted on August 04, 2009Rochelle Dreyfuss (New York University - School of Law) has posted The Role of India, China, Brazil and Other Emerging Economies in Establishing Access Norms for Intellectual Property and Intellectual Property Lawmaking on SSRN. Here is the abstract: This paper...
Steinman on Pleading
Posted on August 04, 2009Adam Steinman (University of Cincinnati - College of Law) has posted The Pleading Problem on SSRN. Here is the abstract: Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v....
Ristroph on State Intention & the Constitutionality of Punishment
Posted on August 04, 2009Alice Ristroph (Seton Hall University - School of Law) has posted State Intentions and the Law of Punishment (Journal of Criminal Law & Criminology, vol. 98, No. 4, pp. 1353-1406, Summer 2008) on SSRN. Here is the abstract: Forget dogs:...
Papke on Criminalization of the Underclass
Posted on August 04, 2009David Ray Papke (Marquette University - Law School) has posted Law, Legal Institutions, and the Criminalization of the Underclass on SSRN. Here is the abstract: The contemporary underclass is defined not by race but rather by its weak or nonexistent....
Kar on Leiter on Naturalized Jurisprudence
Posted on August 03, 2009Robin Bradley Kar (University of Illinois College of Law) has posted On the Prospects of a Naturalized Jurisprudence: Review of Brian Leiter, Naturalizing Jurisprudence (Notre Dame Philosophical Review (2009)) on SSRN. Here is the abstract: Brian Leiter is one of...
Leckey on Roncarelli v. Duplessis
Posted on August 03, 2009Robert Leckey (McGill University - Faculty of Law) has posted Complexifying Roncarelli?s Rule of Law on SSRN. Here is the abstract: On its 50th anniversary, this paper argues for revising the accepted reading of Roncarelli v. Duplessis. Accounts by which...
Farnsworth, Guzior, and Malani on Legal Interpretation
Posted on August 03, 2009Ward Farnsworth, Dustin F. Guzior, and Anup Malani (Boston University School of Law, and University of Chicago - Law School) have posted Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation (Forthcoming, The Journal of Legal Analysis) on SSRN...
Gilbert on Community Norms & Immigrant Integration
Posted on August 03, 2009Lauren Gilbert (St. Thomas University School of Law) has posted Citizenship, Civic Virtue and Immigrant Integration: The Enduring Power of Community-Based Norms (Yale Law & Policy Review, Vol. 27, pp. 335-397, Spring 2009) on SSRN. Here is the abstract: This...
Stout on Trust Behavior & Securities Markets
Posted on August 03, 2009Lynn A. Stout (University of California, Los Angeles - School of Law) has posted Trust Behavior: The Essential Foundation of Securities Markets on SSRN. Here is the abstract: Evidence is accumulating that in making investment decisions, many investors do not...
Gedicks on Group Rights
Posted on August 03, 2009Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted The Recurring Paradox of Groups in the Liberal State (Utah Law Review, Forthcoming) on SSRN. Here is the abstract: The question of groups for liberal theory...
Legal Theory Lexicon: Speech Acts
Posted on August 02, 2009Introduction Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic philosophy. One of Austin's core insights is reflected in the title of...
Legal Theory Bookworm
Posted on August 01, 2009The Legal Theory Bookworm recommends Who Knew?: Responsibility Without Awareness by George Sher. Here is a description: To be responsible for their acts, agents must both perform those acts voluntarily and in some sense know what they are doing. Of...
Download of the Week
Posted on August 01, 2009The Download of the Week is Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases by Dan M. Kahan. Here is the abstract: This paper uses the theory of cultural cognition to examine the debate over...
Leeming & Tolhurst on Standing
Posted on July 31, 2009Mark Leeming and Greg Tolhurst (University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) have posted 'When You Got Nothing, You Got Nothing to Lose': Assignments of Choses of Action and Standing in the...
McGuinness on Paulsen on International Law & the Constitution
Posted on July 31, 2009Margaret E. McGuinness (University of Missouri School of Law) has posted Old W(H)ine, Old Bottles: A Reply to Professor Paulsen (Yale Law Journal Online, Vol. 119) on SSRN. Here is the abstract: This essay reply to Professor Michael Stokes Paulsen,...
Gura on Wilkinson on Heller
Posted on July 31, 2009Alan Gura (Gura & Possessky, P.L.L.C.) has posted Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson (UCLA Law Review, Vol. 56, p. 1129, 2009) on SSRN. Here is the abstract: Judge J. Harvie Wilkinson...
Nickel & Reidy on the Philosphical Foundations of Human Rights
Posted on July 31, 2009James Nickel and David A. Reidy, J.D., Ph.D. (Arizona State University - College of Law and University of Tennessee - Department of Philosophy) have posted Philosophical Foundations of Human Rights on SSRN. Here is the abstract: In this draft of...
Risinger on Evidentiary Reform
Posted on July 31, 2009D. Michael Risinger (Seton Hall University School of Law) has posted Inquiry, Relevance, Rules of Exclusion, and Evidentiary Reform (A Contribution to a Festschrift for Margaret A. Berger) (Brooklyn Law Review , Forthcoming) on SSRN. Here is the abstract: Federal...
Wolitz on the Right to Clear One's Name
Posted on July 31, 2009David Wolitz (Georgetown University Law Center) has posted The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One's Name (Brigham Young University Law Review, Forthcoming, Georgetown Public Law Research) on SSRN. Here is the abstract: In...
Kahan on Cultural Cognition & Acquaintance Rape
Posted on July 30, 2009Dan M. Kahan (Yale University - Law School) has posted Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases on SSRN. Here is the abstract: This paper uses the theory of cultural cognition to examine the...
Brunnee on International Environmental Law & the Stockholm Declaration
Posted on July 30, 2009Jutta Brunnee (University of Toronto, Faculty of Law) has posted The Stockholm Declaration and the Structure and Processes of International Environmental Law (THE FUTURE OF OCEAN REGIME BUILDING: ESSAYS IN TRIBUTE TO DOUGLAS M. JOHNSTON, Aldo Chircop, Ted MecDorman, eds...
Mashaw on Public Law & Public Choice
Posted on July 30, 2009Jerry Louis Mashaw (Yale Law School) has posted Public Law and Public Choice: Critique and Rapprochement (RESEARCH HANDBOOK ON LAW AND PUBLIC CHOICE, Daniel A. Farber, Anne Joseph O'Connell, eds., Edward Elgar, 2009) on SSRN. Here is the abstract: Public...
Hovenkamp on the Obama Administration & the Sherman Act
Posted on July 30, 2009Herbert J. Hovenkamp (University of Iowa - College of Law) has posted The Obama Administration and Section Two of the Sherman Act on SSRN. Here is the abstract: During the administration of President George W. Bush, the Antitrust Division was...
Haque on Killing Civilians
Posted on July 30, 2009Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Killing Civilians on SSRN. Here is the abstract: There is a gap between the international humanitarian law of Geneva and the international criminal law...
Zamir & Medina on on Terrorism & Constrained Economic Analysis
Posted on July 30, 2009Eyal Zamir and Barak Medina (Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law ) have posted Law, Economics, and Morality: Constrained Economic Analysis of the Fight Against Terrorism (LAW, ECONOMICS AND...
Mak on Long-Term Contractual Relationships & Fundamental Rights in European Case Law
Posted on July 30, 2009Chantal Mak (University of Amsterdam - Centre for the Study of European Contract Law) has posted The Lion, the Fox and the Workplace: Fundamental Rights and the Politics of Long-Term Contractual Relationships on SSRN. Here is the abstract: This paper...
Foster on Coursen on Environmental Justice & Equal Protection
Posted on July 29, 2009Sheila Foster (Fordham University - School of Law) has posted Environmental Justice and the Constitution (Environmental Law Reporter, Vol. 39, No. 10347, 2009) on SSRN. Here is the abstract: In a recent essay in ELR, David Coursen queries whether environmental...
Hirsch on Globalization & Employees
Posted on July 29, 2009Jeffrey M. Hirsch (University of Tennessee College of Law) has posted Making Globalism Work for Employees (Saint Louis University Law Journal, Forthcoming) on SSRN. Here is the abstract: The rise of globalism has allowed businesses to expand their chains of...
Weiss on the Post-Partisan Presidency
Posted on July 29, 2009David C. Weiss (University of Michigan at Ann Arbor) has posted In Defense of the Post-Partisan President: Toward the Boundary between 'Partisan' Advantage and 'Political' Choice on SSRN. Here is the abstract: This Essay examines what it means, if anything,...
Burleson on Same Sex Marriage
Posted on July 29, 2009Elizabeth Burleson (USD School of Law) has posted From Nondiscrimination to Civil Marriage on SSRN. Here is the abstract: As William Faulkner explained, we must be free not because we claim freedom, but because we practice it. This article analyzes...
Mattei & Morpurgo on Globalization, the Rule of Law, and Plunder
Posted on July 29, 2009Ugo Mattei and Marco de Morpurgo (University of California - Hastings College of Law) has posted Global Law and Plunder: The Dark Side of the Rule of Law on SSRN. Here is the abstract: The ?rule of law? has traditionally...
Sellers on Classical Influences on the U.S. Constitution
Posted on July 29, 2009Mortimer Newlin Stead Sellers (University of Baltimore - School of Law) has posted Classical Influences on the American Founding Fathers (THE CLASSICAL TRADITION, Anthony Grafton, Glenn Most, Salvatore Settis, (eds.), Harvard, 2009) on SSRN. Here is the abstract: The American...
Beale on Juvenile Justice Reform & Race
Posted on July 28, 2009Sara Sun Beale (Duke University - School of Law) has posted You?ve Come a Long Way, Baby: Two Waves of Juvenile Justice Reforms as Seen from Jena, Louisiana (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 44, No. 2,...
Magliocca on Bagehot & the U.S. Constitution
Posted on July 28, 2009Gerard N. Magliocca (Indiana University School of Law - Indianapolis) has posted Walter Bagehot and the American Constitution on SSRN. Here is the abstract: This Article examines Walter Bagehot's classic book on the English Constitution and applies his analysis to...
Ford on Failure to Respond to Natural Disaster
Posted on July 28, 2009Stuart Ford (The John Marshall Law School) has posted Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis on SSRN...
Reidy on Human Rights & Toleration
Posted on July 28, 2009David A. Reidy, J.D., Ph.D. (University of Tennessee - Department of Philosophy) has posted Human Rights and Liberal Toleration on SSRN. Here is the abstract: In this paper, I respond to Jim Nickel's criticisms of John Rawls's conception of human...
Jain on the Efficiency of Neglience
Posted on July 28, 2009Satish K. Jain (Jawaharlal Nehru University) has posted On the Efficiency of Negligence Rule on SSRN. Here is the abstract: In the law and economics literature there are three different versions of negligence rule which have been discussed. These three...
Lowenstein on Good Faith & Business Associations
Posted on July 27, 2009Mark Loewenstein (University of Colorado Law School) has posted The Diverging Meaning of Good Faith (Delaware Journal of Corporate Law (DJCL), Vol. 34, No. 2, 2009) on SSRN. Here is the abstract: This article explores the meaning of "good faith"...
Florestal on Race, Class, & Culture in Contracts
Posted on July 27, 2009Marjorie Florestal (University of the Pacific (UOP) - McGeorge School of Law) has posted Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts (Michigan Journal of Race and Law, Vol. 14, Issue 1, Fall 2008) on SSRN....
Crawford on Taxation, Pregnancy, & Privacy
Posted on July 27, 2009Bridget J. Crawford (Pace University School of Law) has posted Taxation, Pregnancy and Privacy (William & Mary Journal of Women and the Law, Forthcoming) on SSRN. Here is the abstract: This Article frames a discussion of surrogacy within the context....
Beale on U.S. Attorneys
Posted on July 27, 2009Sara Sun Beale (Duke University - School of Law) has posted Rethinking the Identity and Role of United States Attorneys (Ohio State Journal of Criminal Law, Vol. 6, No. 2, pp. 369-439, 2009) on SSRN. Here is the abstract: This...
Sag on the Google Book Settlement
Posted on July 27, 2009Matthew Sag (DePaul University - College of Law) has posted The Google Book Settlement and the Fair Use Counterfactual on SSRN. Here is the abstract: This Article compares the Settlement to the most likely outcome of the litigation the settlement...
Michaels on Economics of Choice of Law
Posted on July 27, 2009Ralf Michaels (Duke University - School of Law) has posted Economics of Law as Choice of Law (Law and Contemporary Problems, Vol. 71, No. 3, pp. 73-104, 2008) on SSRN. Here is the abstract: If economics is about choice, then...
Legal Theory Lexicon: Causation
Posted on July 26, 2009Introduction Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles,...
Legal Theory Bookworm
Posted on July 25, 2009The Legal Theory Bookworm recommends Social Conventions: From Language to Law by Andrei Marmor. Here is a description: Social conventions are those arbitrary rules and norms governing the countless behaviors all of us engage in every day without necessarily thinking...
Download of the Week
Posted on July 25, 2009The Download of the Week is Responsibility & the Negligence Standard by Joseph Raz. Here is the abstract: The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for...
Bainbridge on Shareholder Activism
Posted on July 24, 2009Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Shareholder Activism in the Obama Era on SSRN. Here is the abstract: The financial crisis of 2008 and the ascendancy of the Democratic Party in Washington...
Spalding on Anti-Bribery Legislation
Posted on July 24, 2009Andrew Brady Spalding (University of Mumbai) has posted Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions against Emerging Markets on SSRN. Here is the abstract: Although the purpose of international anti-bribery legislation, particularly the U...
George on the States Secrets Privilege
Posted on July 24, 2009Beth George (New York University School of Law) has posted Addressing the Incentives Problem of the State Secrets Privilege (New York University Law Review, Vol. 84, December 2009) on SSRN. Here is the abstract: Over fifty years ago, in Reynolds...
Sellers on Classical Influences on the French Revolution
Posted on July 24, 2009Mortimer Newlin Stead Sellers (University of Baltimore - School of Law) has posted Classical Influences on the Law and Politics of the French Revolution (THE CLASSICAL TRADITION, Anthony Grafton, Glenn Most, Salvatore Settis, (eds.), Harvard, 2009) on SSRN...
Lakoff on Metaphor & Neuroscience
Posted on July 24, 2009George Lakoff (University of California, Berkeley) has posted The Neural Theory of Metaphor on SSRN. Here is the abstract: The neural revolution is changing our understanding of the brain and the mind in radical ways, and that is no less...
Mashaw on Due Process of Governance
Posted on July 24, 2009Jerry Louis Mashaw (Yale Law School) has posted Due Process of Governance: Terror, the Rule of Law, and the Limits of Institutional Design (Governance: An International Journal of Policy, Administration, and Institutions, Vol. 22, No. 3, pp. 355-370, July 2009)...
Lawson on the Emergency Economic Stabilization Act & the Constitution
Posted on July 24, 2009Gary Lawson (Boston University School of Law) has posted Burying the Constitution Under a Tarp (Harvard Journal of Law and Public Policy, Vol. 33, Forthcoming 2010) on SSRN. Here is the abstract: The Emergency Economic Stabilization Act of 2008, a.k.a...
Risinger on Alllen & Laudan on Deadly Dilemmas
Posted on July 23, 2009D. Michael Risinger (Seton Hall University School of Law) has posted Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract: In a recent article in the Texas...
Raz on Responsibility & Negligence
Posted on July 23, 2009Joseph Raz (Columbia Law School and Oxford University) has posted Responsibility & the Negligence Standard on SSRN. Here is the abstract: The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation...
Herlihy on Appellate Review of Patent Cliam Construction
Posted on July 23, 2009Eileen M. Herlihy (New England Law) has posted Appellate Review of Patent Claim Construction: Should the Federal Circuit Be its Own Lexicographer In Matters Related to The Seventh Amendment? (Michigan Telecommunications and Technology Law Review, Vol...
Arthur on the Core of Antitrust Doctrine
Posted on July 23, 2009Thomas C. Arthur (Emory University School of Law) has posted The Core of Antitrust and the Slow Death of Dr. Miles (SMU Law Review, Vol. 62, 2009) on SSRN. Here is the abstract: In 1911 the Supreme Court held in...
Boyce on Obscenity in the U.S. & Canada
Posted on July 23, 2009Bret Boyce (University of Detroit Mercy - School of Law) has posted Obscenity and Community Standards (Yale Journal of International Law, Vol. 33, p. 299, 2008) on SSRN. Here is the abstract: In this article, I present a comparative study...
Dawood on the Antidomination Model
Posted on July 22, 2009Yasmin Dawood (Faculty of Law, University of Toronto) has posted The Antidomination Model and the Judicial Oversight of Democracy (Georgetown Law Journal, Vol. 96, No. 5, pp. 1411-1485, June 2008) on SSRN. Here is the abstract: The judicial oversight of...
Barnett on the Constitution & Libertarianism
Posted on July 22, 2009Randy E. Barnett (Georgetown University Law Center) has posted Is the Constitution Libertarian? (Cato Supreme Court Review, 2008-2009) on SSRN. Here is the abstract: Ever since Justice Holmes famously asserted that ?the Constitution does not enact Mr...
Van Alstyne on Marriage in the Supreme Court's Abortion Decisions
Posted on July 22, 2009William W. Van Alstyne (William & Mary Law School) has posted The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court: Altered States in Constitutional Law (William & Mary Bill of Rights Journal, Vol. 18, 2009) on...
Brown on Justice Marshall
Posted on July 22, 2009Rebecca L. Brown (USC Gould School of Law) has posted Deep and Wide: Justice Marshall's Contributions to Constitutional Law (Howard Law Journal, Vol. 52, 2009) on SSRN. Here is the abstract: This essay, a contribution to a symposium marking the...
Hume on State Supreme Courts & Same-Sex Marriage Amendments
Posted on July 22, 2009Robert J. Hume (Fordham University) has posted Understanding the Impact of State Supreme Courts: An Event History Analysis of Same-Sex Marriage Amendments on SSRN. Here is the abstract: This paper assesses the impact of state supreme courts on controversial public...
Fincham on Lex Originis & Illicit Cultural Property
Posted on July 22, 2009Derek Fincham (Loyola University New Orleans College of Law) has posted How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property (Columbia Journal of Law and the Arts, Vol. 32, p. 111, 2008) on SSRN. Here...
Zick on Constitutional Displacement
Posted on July 21, 2009Timothy Zick (William & Mary Law School) has posted Constitutional Displacement (Washington University Law Review, Vol. 86, No. 3, 2009) on SSRN. Here is the abstract: This Article examines the intersection between territory and constitutional liberty...
Yung on Judicial Activism
Posted on July 21, 2009Corey Rayburn Yung (The John Marshall Law School) has posted Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals on SSRN. Here is the abstract: Existing empirical scholarship about judicial activism has...
Zellmer on Preemption
Posted on July 21, 2009Sandra B. Zellmer (University of Nebraska at Lincoln - College of Law) has posted Preemption by Stealth (Houston Law Review, Vol. 45, p. 1569, 2009) on SSRN. Here is the abstract: The Supreme Court's recent preemption decisions give lip service...
Hasen on Constitutional Avoidance
Posted on July 21, 2009Richard L. Hasen (Loyola Law School - Los Angeles) has posted Constitutional Avoidance and Anti-Avoidance at the Roberts Court on SSRN. Here is the abstract: At the (apparent but not real) end of the October 2008 Supreme Court term, the...
Boyce on Originalism and the Fourteenth Amendment
Posted on July 21, 2009Bret Boyce (University of Detroit Mercy - School of Law) has posted Originalism and the Fourteenth Amendment on SSRN. Here is the abstract: In recent years, constitutional scholars have deployed originalist arguments both to attack and to defend the vast...
Farganis on Reasoning & Supreme Court Legitimacy
Posted on July 21, 2009Dion Farganis (Bowling Green State University) has posted Does Reasoning Matter? The Impact of Opinion Content on Supreme Court Legitimacy on SSRN. Here is the abstract: Is Supreme Court legitimacy affected by the way justices explain their decisions to the...
Owens & Black on Policy Preferences of Circuit Judges
Posted on July 20, 2009Ryan J Owens (Harvard University) & Ryan C. Black (Washington University, St. Louis - Department of Political Science; Washington University, St. Louis - Center for Empirical Research in the Law) have posted Estimating the Policy Preferences of United States Courts...
Chiang on Levels of Abstraction in Patent Law
Posted on July 20, 2009Tun-Jen Chiang (George Mason University School of Law) has posted The Levels of Abstraction Problem in Patent Law on SSRN. Here is the abstract: The concept of ?invention? is fundamental to patent law. What the patentee creates as the invention,...
Van Alstyne on Religion in the Workplace
Posted on July 20, 2009William W. Van Alstyne (William & Mary Law School) has posted Religion in the Workplace: A Report on the Layers of Relevant Law in the United States (Comparative Labor Law & Policy Journal, Vol. 30, No. 3, 2009) on SSRN....
Bernstein on Implied Reverse Preemption
Posted on July 20, 2009Anita Bernstein (Brooklyn Law School) has posted Implied Reverse Preemption (Brooklyn Law Review , Vol. 74, No. 3, 2009) on SSRN. Here is the abstract: When they apply the doctrine of preemption, courts refuse to hear claims for personal injury...
Craig on European Community Directives for Private Parties
Posted on July 20, 2009Paul P. Craig (University of Oxford - Faculty of Law) has posted The Legal Effect of Directives: Policy, Rules and Exceptions (European Law Review, Vol. 34, No. 3, p. 349, 2009) on SSRN. Here is the abstract: This article reconsiders...
Corley, Sommer, and Ward on Plurality Decisions in the Supreme Court
Posted on July 20, 2009Pamela C. Corley, Udi Sommer and Artemus Ward (Vanderbilt University , University at Albany: SUNY and Northern Illinois University) have posted Extreme Dissensus: Explaining Plurality Decisions on the United States Supreme Court on SSRN. Here is the abstract: Plurality decisions...
Legal Theory Lexicon: Originalism
Posted on July 19, 2009Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a loosely-knit family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the...
Milanovic on Evolutionary Treaty Interpretation
Posted on July 18, 2009Check out The ICJ and Evolutionary Treaty Interpretation by Marko Milanovic on EJIL:Talk!. Here is a taste: [T]o sum up: because the contracting parties used a generic term, commerce, and created a perpetual regime, the meaning of the term ?commerce?...
Legal Theory Bookworm
Posted on July 18, 2009The Legal Theory Bookworm recommends We Shall Overcome: A History of Civil Rights and the Law by Alexander Tsesis. Here is a description: Tsesis, a professor of law and author of The Thirteenth Amendment and American Freedom, offers an ambitious...
Download of the Week
Posted on July 18, 2009The Download of the Week is Distinguishing Judges: An Empirical Ranking of Judicial Quality in the U.S. Court of Appeals by Robert Anderson IV. Here is the abstract: This article presents an empirical quality ranking of 383 federal appellate judges...
Bandes on Empathy & the Rule of Law
Posted on July 17, 2009Susan A. Bandes (DePaul University - College of Law) has posted Empathetic Judging and the Rule of Law (Cardozo Law Review, p. 133, 2009) on SSRN. Here is the abstract: This short essay addresses the contention that empathy in judging...
Lain on Evolving Standards & Majoritarianism
Posted on July 17, 2009Corinna Lain (University of Richmond - School of Law) has posted The Unexceptionalism of Evolving Standards (UCLA Law Review, Vol. 57, No. 2, Forthcoming) on SSRN. Here is the abstract: Conventional wisdom is that outside the Eighth Amendment context, the...
Shomade & Hartley on Network Analysis of Trial Courts
Posted on July 17, 2009Salmon A. shomade and Roger E. Hartley (University of New Orleans and University of Arizona, School of Government and Public Policy) have posted Exploring the Application of Network Analysis to the Study of Trial Courts on SSRN. Here is the...
Alexander on New Governance & Housing Reform
Posted on July 17, 2009Lisa T. Alexander (University of Wisconsin Law School) has posted Stakeholder Participation in New Governance: Lessons from Chicago's Public Housing Reform Experiment (Georgetown Journal on Poverty Law Policy, Vol. XVI, No. 1, 2009) on SSRN. Here is the abstract: The...
Kapan on Property Division & Household Bargaining
Posted on July 17, 2009Tumer Kapan (Department of Economics, Columbia University) has posted Property Division Laws: The Effects on Labor Supply and Household Bargaining on SSRN. Here is the abstract: This paper provides a framework for analyzing the impact of a change in property...
Armstrong on Self-Determination & Moral Arbitrariness
Posted on July 17, 2009Chris Armstrong (University of Southampton - Faculty of Law, Arts and Social Sciences) has posted National Self-Determination, Global Equality and Moral Arbitrariness (Journal of Political Philosophy, Forthcoming) on SSRN. Here is the abstract: Within the debate over global distributive justice,...
Givati on Advance Tax Rulings
Posted on July 16, 2009Yehonatan Givati (Harvard University - Harvard Law School) has posted Resolving Legal Uncertainty: The Unfulfilled Promise of Advance Tax Rulings (Virginia Tax Review, Forthcoming) on SSRN. Here is the abstract: Advance tax rulings allow taxpayers to achieve certainty about the...
McCann on Sotomayor's Sports Law Decisions
Posted on July 16, 2009Michael McCann (Vermont Law School) has posted Judge Sonia Sotomayor and the Relationship between Leagues and Players: Insights and Implications (Connecticut Law Review, Forthcoming) on SSRN. Here is the abstract: This essay examines two of Judge Sotomayor?s most notable opinions,...
Post on Law & Politics
Posted on July 16, 2009Robert Post (Yale Law School) has posted Theorizing Disagreement: Re-Conceiving the Relationship between Law and Politics (California Law Review, Forthcoming) on SSRN. Here is the abstract: The article theorizes disagreement in law and politics. It argues that politics is a...
Main on Substance and Procedure
Posted on July 16, 2009Thomas O. Main (University of the Pacific (UOP) - McGeorge School of Law) has posted The Procedural Foundation of Substantive Law (Washington University Law Review, Vol. 87, 2009) on SSRN. Here is the abstract: The substance-procedure dichotomy is a popular...
Abrams on the Oregon Initiative Process
Posted on July 16, 2009Paula L. Abrams (Lewis & Clark Law School) has posted The Majority Will: A Case Study of Misinformation, Manipulation, and the Oregon Initiative Process (Oregon Law Review, Forthcoming) on SSRN. Here is the abstract: The controversy over the use of...
Wells & Snedeker on Engquist v. Oregon Department of Agriculture
Posted on July 16, 2009Michael Lewis Wells and Alice Snedeker (University of Georgia Law School) have posted State-Created Property and Due Process of Law: Filling the Void Left by Engquist V. Oregon Department of Agriculture (Georgia Law Review, Forthcoming) on SSRN. Here is the...
Wells on Scott v. Harris
Posted on July 15, 2009Michael Lewis Wells (University of Georgia Law School) has posted Scott V. Harris and the Role of the Jury in Constitutional Litigation (Review of Litigation, Forthcoming) on SSRN. Here is the abstract: Suits brought under 42 U.S.C. section 1983 to...
Logue on Coordinating Tort & Regulation
Posted on July 15, 2009Kyle D. Logue (University of Michigan Law School) has posted Coordinating Sanctions in Torts on SSRN. Here is the abstract: This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means...
Lobel on Prolonged Solitary Confinement
Posted on July 15, 2009Jules Lobel (University of Pittsburgh - School of Law) has posted Prolonged Solitary Confinement and the Constitution (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 115, 2008) on SSRN. Here is the abstract: This Article will address whether...
Adams on a Right to Housing
Posted on July 15, 2009Kristen Adams (Stetson University College of Law) has posted Do We Need a Right to Housing? (Nevada Law Journal, Vol. 9, No. 2, 2009) on SSRN. Here is the abstract: One need only listen to the political debates these days...
Michaels on Global Legal Pluralism
Posted on July 15, 2009Ralf Michaels (Duke University - School of Law) has posted Global Legal Pluralism (Annual Review of Law & Social Science, Vol. 5, 2009) on SSRN. Here is the abstract: Some challenges of legal globalization closely resemble those formulated earlier for...
Pardo & Patterson on Minds, Brains, & Norms
Posted on July 15, 2009Michael S. Pardo and Dennis Patterson (University of Alabama School of Law and Rutgers University School of Law, Camden) have posted Minds, Brains, and Norms (Neuroethics, Forthcoming) on SSRN. Here is the abstract: Arguments for the importance of neuroscience reach...
Wall on Human Rights
Posted on July 15, 2009Illan Rua Wall (Oxford Brookes University - Department of Law) has posted On Pain and The Sense of Human Rights (Australian Feminist Law Journal, Vol. 29, 2008) on SSRN. Here is the abstract: Human rights law inscribes a relation between...
Robertson on Blind Expertise
Posted on July 14, 2009Christopher T. Robertson (Harvard University - Harvard Law School) has posted Blind Expertise (New York University Law Review, Vol. 85, 2010) on SSRN. Here is the abstract: America spends hundreds of billions of dollars on its system of civil litigation,...
Anderson on Ranking Federal Appellate Judges
Posted on July 14, 2009Robert Anderson IV (Pepperdine University School of Law) has posted Distinguishing Judges: An Empirical Ranking of Judicial Quality in the U.S. Court of Appeals on SSRN. Here is the abstract: This article presents an empirical quality ranking of 383 federal...
Dickey on a Mediation Exclusionary Rule
Posted on July 14, 2009Michael Patrick Dickey (Charleston School of Law) has posted ADR Gone Wild: Is it Time for a Federal Mediation Exclusionary Rule? on SSRN. Here is the abstract: Most people have heard of the video series ?Girls Gone Wild.? What remains...
Duxbury on Lord Wright
Posted on July 14, 2009Neil Duxbury (London School of Economics - Law Department) has posted Lord Wright and Innovative Traditionalism on SSRN. Here is the abstract: This study presents the mid-twentieth century English lord of appeal, Lord Wright, as an innovative traditionalist judge...
Mello & Zeiler on Empirical Health Law Scholarship
Posted on July 14, 2009Michelle M. Mello and Kathryn Zeiler (Harvard University - Department of Health Policy & Management and Georgetown University Law Center) have posted Empirical Health Law Scholarship: The State of the Field (Georgetown Law Journal, Vol. 96, p. 649, 2008) on...
Avi-Yonah on Corporate & International Tax Reform
Posted on July 14, 2009Reuven S. Avi-Yonah (University of Michigan - Law School) has posted Corporate and International Tax Reform: Long-, Medium-, and Short Term Proposals on SSRN. Here is the abstract: The current controversy surrounding President Obama?s international tax proposals seems like an...
Boon on "Jus Post Bellum"
Posted on July 13, 2009Kristen E. Boon (Seton Hall University - School of Law) has posted Obligations of the New Occupier: The Contours of a Jus Post Bellum (Loyola of Los Angeles International and Comparative Law Review, Vol. 31, No. 2, 2008) on SSRN....
Lang on Global Services Trade
Posted on July 13, 2009Andrew T. F. Lang (London School of Economics) has posted Legal Regimes and Regimes of Knowledge: Governing Global Services Trade on SSRN. Here is the abstract: The starting point of this paper is that if we want to understand the...
Culhane on Justifying Marriage
Posted on July 13, 2009John G. Culhane (Widener University - Delaware Campus) has posted Marriage Equality? First, Justify Marriage (If You Can) (Drexel Law Review, Vol. 1, No. 2) on SSRN. Here is the abstract: With recent positive developments in Connecticut, Vermont, Iowa, and...
Engle on the History of the Principle of Porportionality
Posted on July 13, 2009Eric Engle (Harvard University - Harvard Law School and Universität Bremen) has posted The History of the General Principle of Proportionality: An Overview on SSRN. Here is the abstract: Proposes a brief history of the concept of proportionality in law...
Perlin & Dlugacz on International Human Rights Law & Correctional Conditions
Posted on July 13, 2009Michael L. Perlin & Henry A. Dlugacz (New York Law School, New York Medical College - Graduate School of Health Sciences and New York Law School) have posted 'It's Doom Alone that Counts:' Can International Human Rights Law Be an...
Legal Theory Lexicon: Justice
Posted on July 12, 2009Introduction The connection between law and justice is a deep one. We have "Halls of Justice," "Justices of the Supreme Court," and "the administration of justice." We know that "justice" is one of the central concepts of legal theory, but...
Legal Theory Bookworm
Posted on July 11, 2009The Legal Theory Bookworm recommends The Constitution in 2020, edited by Jack Balkin and Reva Siegel. Here is a description: The Constitution in 2020 is a powerful blueprint for implementing a more progressive vision of constitutional law in the years...
Download of the Week
Posted on July 11, 2009The Download of the Week is System Effects and the Constitution by Adrian Vermeule. Here is the abstract: A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. The...
Guiora on Religious Extremism
Posted on July 10, 2009Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Religious Extremism: A Fundamental Danger (South Texas Law Review, Vol. 50, No. 743, 2009) on SSRN. Here is the abstract: Terrorism constitutes one of the gravest...
Kritzer on Empirical Legal Research Prior to WWII
Posted on July 10, 2009Herbert M. Kritzer (University of Minnesota Law School) has posted The (Nearly) Forgotten Early Empirical Legal Research on SSRN. Here is the abstract: The modern empirical legal studies movement has well-known antecedents in the law and society and law and...
Shaffer on Business Shaping Law
Posted on July 10, 2009Gregory Shaffer (University of Minnesota - Twin Cities - School of Law) has posted How Business Shapes Law: A Socio-Legal Framework (Connecticut Law Review, Forthcoming) on SSRN. Here is the abstract: Much legal scholarship addresses law in terms of norms...
Joh on Undercover Police Paticipation in Crime
Posted on July 10, 2009Elizabeth E. Joh (U.C. Davis School of Law) has posted Breaking the Law to Enforce it: Undercover Police Participation in Crime (Stanford Law Review, Vol. 62) on SSRN. Here is the abstract: In Breaking the Law to Enforce It: Undercover...
Marcus on Trans-Substantivity
Posted on July 10, 2009David Marcus (University of Arizona - James E. Rogers College of Law) has posted The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure (DePaul Law Review, Vol. 59, 2010) on SSRN. Here is the abstract: The trans-substantivity principle...
Rowe on Trade Secrets & Free Speech
Posted on July 10, 2009Elizabeth A. Rowe (University of Florida - Fredric G. Levin College of Law) has posted Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs? (Boston College Law Review, 2009) on SSRN. Here is the abstract: Trade...
Fortney on Empirical Research on the Legal Profession
Posted on July 09, 2009Susan Saab Fortney (Texas Tech University School of Law) has posted Taking Empirical Research Seriously (Georgetown Journal of Legal Ethics, Vol. 22, 2009) on SSRN. Here is the abstract: This essay considers how empirical research on the legal profession can...
Shaffer & Pollack on Hard & Soft Law in Internatonal Governance
Posted on July 09, 2009Gregory Shaffer and Mark A. Pollack (University of Minnesota - Twin Cities - School of Law and Temple University - Department of Political Science) have posted Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance (Minnesota Law Review,...
McAffee on Treanor on Amar on the Ninth Amendment
Posted on July 09, 2009Thomas McAffee (William S. Boyd School of Law, UNLV) has posted Taking History Seriously: Reflections on a Critique of Amar's Treatment of the Ninth Amendment in His Work on the Bill of Rights on SSRN. Here is the abstract: Dean...
Barkow on Prosecutors as Corporate Regulators
Posted on July 09, 2009Rachel E. Barkow (New York University - School of Law) has posted The Prosecutor as Regulatory Agency (PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT, Anthony Barkow & Rachel Barkow, eds., NYU Press, Forthcoming) on SSRN...
Leiter on Nietzche on Freedom of the Will
Posted on July 09, 2009Brian Leiter (University of Chicago Law School) has posted Nietzsche's Philosophy of Action (Blackwell Companion to Philosophy of Action, 2010) on SSRN. Here is the abstract: Nietzsche holds that people lack freedom of the will in any sense that would...
Vermeule on System Effects & the Constitution
Posted on July 09, 2009Adrian Vermeule (Harvard University - Harvard Law School) has posted Foreword: System Effects and the Constitution (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract: A system effect arises when the properties of an aggregate differ from the properties...
Dagan on Inclusion & Exclusion in Property Law
Posted on July 08, 2009Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted Exclusion and Inclusion in Property on SSRN. Here is the abstract: Exclusion is in vogue in property discourse: the right to exclude is often considered property?s most defining....
Denton on the Recess Appointents Clause
Posted on July 08, 2009Blake Denton (Government of the United States of America - 11th Circuit) has posted While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause? (Catholic University Law Review, Vol. 58, No. 751, 2009) on...
Gedicks on Originalism & Substantive Due Process
Posted on July 08, 2009Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted Originalist Roots of Substantive Due Process: Higher-Law Constitutionalism and the Fifth Amendment (BYU Clark Memorandum, Forthcoming) on SSRN. Here is the abstract: The notion of ?substantive?...
Rosenthal on Mizner on Probable Cause
Posted on July 08, 2009Lawrence Rosenthal (Chapman University - School of Law) has posted Probability, Probable Cause, and the Law of Unintended Consequences (Texas Law Review, Vol. 87, p. 63, 2009) on SSRN. Here is the abstract: This brief essay responds to Max Mizner's...
Chiodo on R. v. Big M Drug Mart Ltd
Posted on July 08, 2009Suzie Chiodo (University of Western Ontario Faculty of Law) has posted Big M, Little Freedom: Accommodating Religion in a Secular Society on SSRN. Here is the abstract: By seeing religion as an aspect of life instead of a framework of...
Traum on Habeas & Equitable Tolling
Posted on July 08, 2009Anne R. Traum (William S. Boyd School of Law, UNLV) has posted Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas Corpus (Maryland Law Review, Vol. 68, No. 3, 2009) on SSRN. Here is the abstract: This...
Kuo on Global Administrative Law & Global Constitutionalism
Posted on July 07, 2009Ming-Sung Kuo (Max Planck Institute for Comparative Public Law and International Law) has posted Between Fragmentation and Unity: The Uneasy Relationship between Global Administrative Law and Global Constitutionalism (San Diego International Law Journal, Vol...
Innes & Mitra on an Honesty Experiment
Posted on July 07, 2009Robert Innes and Arnab Mitra (University of Arizona - Department of Agricultural and Resource Economics and University of Arizona, Department of Economics) have posted Is Dishonesty Contagious? An Experiment on SSRN. Here is the abstract: When an individual believes that...
Haile on Sin Taxes
Posted on July 07, 2009Andrew J Haile (Elon University School of Law) has posted Sin Taxes: When the State Becomes the Sinner on SSRN. Here is the abstract: To fill budget gaps, several state legislatures have proposed increasing existing taxes on tobacco and alcohol...
Humbach on Free Will
Posted on July 07, 2009John A. Humbach (Pace University School of Law) has posted Free Will Ideology: Experiments, Evolution and Virtue Ethics on SSRN. Here is the abstract: Free will could never have evolved in a world of ordinary biological forces. There is, moreover,...
Kritzer on the Costs of Civil Justice
Posted on July 07, 2009Herbert M. Kritzer (University of Minnesota Law School) has posted Fee Regimes and the Cost of Civil Justice (Civil Justice Quarterly, Vol. 28, 2009) on SSRN. Here is the abstract: The problem of costs in civil justice processes is an...
Hanna on Domestic Abuse
Posted on July 07, 2009Cheryl Hanna (Vermont) has posted Behind the Castle Walls: Balancing Privacy and Security in Domestic Abuse Cases (Thomas Jefferson Law Review, Forthcoming) on SSRN. Here is the abstract: In this paper, adapted from the Ruth Bader Ginsburg keynote lecture at...
Kuo on Everson and Eisner on European Constitituionalism
Posted on July 07, 2009Ming-Sung Kuo (Max Planck Institute for Comparative Public Law and International Law) has posted From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails (Oxford Journal of Legal Studies, Vol. 29, 2009) on SSRN...
Kornhauser on Gender & Capital Gains Taxation
Posted on July 06, 2009Marjorie E. Kornhauser (Arizona State University - College of Law) has posted Gender and Capital Gains Taxation on SSRN. Here is the abstract: Most countries grant capital gains preferential treatment under their income tax laws by either excluding them from...
Giesen on Wrongful Birth, Wrongful Life, and Comparative Law
Posted on July 06, 2009Ivo Giesen (Utrecht University) has posted Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems (Tydskrif vir Heedendaagse Romeins-Hollandse Reg (THRHR), Vol. 72, p.257, 2009) on SSRN. Here is the abstract: In analysing ?wrongful birth?...
Flatt & Collins on Environmental Enforcement
Posted on July 06, 2009Victor Byers Flatt and Paul M. Collins Jr. (UNC Chapel Hill School of Law and University of North Texax) have posted Environmental Enforcement in Dire Straits - 'There is No Protection for Nothing and No Data for Free' (Notre Dame...
Albert on Presidentialism & Parliamentarism
Posted on July 06, 2009Richard Albert (Boston College - Law School) has posted The Fusion of Presidentialism and Parliamentarism (American Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract: No question of constitutional design is more intensely debated than whether emerging democracies...
Griffin on the Wrong Person Defense
Posted on July 06, 2009Lissa Griffin (Pace University School of Law) has posted Avoiding Wrongful Convictions: Re-Examining the 'Wrong-Person' Defense (Seton Hall Law Review, Vol. 39, 2009) on SSRN. Here is the abstract: This Article reviews the history of the right to present a...
Legal Theory Lexicon: The Rule of Law
Posted on July 05, 2009Introduction This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory. What is...
Legal Theory Bookworm
Posted on July 04, 2009The Legal Theory Bookworm recommends A Failure of Capitalism: The Crisis of '08 and the Descent into Depression by Richard A. Posner. Here is a description: The financial and economic crisis that began in 2008 is the most alarming of...
Download of the Week
Posted on July 04, 2009Catherine Fisk and Deborah C. Malamud (University of California, Irvine Law School and New York University - School of Law) have posted The NLRB in Administrative Law Exile: Problems with its Structure and Function and Suggestions for Reform (Duke Law...
Frieden on Net Neutrality & Freedom of Speech
Posted on July 03, 2009Rob Frieden (Pennsylvania State University - College of Communications) has posted Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits on SSRN. Here is the abstract: Much of the...
Engle on Rights & Law
Posted on July 03, 2009Eric Engle (Harvard University - Harvard Law School and Universität Bremen) has posted Taking the Right Seriously: Hohfeldian Semiotics and Rights Discourse on SSRN. Here is the abstract: A key characteristic of contemporary legal thought is "rights discourse"...
Macklem on Recent Books on Cultural Rights
Posted on July 03, 2009Patrick Macklem (University of Toronto - Faculty of Law) has posted The Law and Politics of International Cultural Rights: A Review Essay of Elsa Stamatopoulou, Cultural Rights in International Law and Francesco Francioni and Martin Scheinin (eds.), Cultural Human Rights...
Mantouvalou on the N. v. United Kingdom
Posted on July 03, 2009Virginia Mantouvalou (University of Leicester - Faculty of Law) has posted N v UK: No Duty to Rescue the Nearby Needy? on SSRN. Here is the abstract: This article discusses the deportation of a seriously ill foreign national to her...
Albert on the Nonwithstanding Clause in the Canadian Constitution
Posted on July 03, 2009Richard Albert (Boston College - Law School) has posted Advisory Review: The Reincarnation of the Notwithstanding Clause (Alberta Law Review, Vol. 45, No. 4, 2008) on SSRN. Here is the abstract: The Notwithstanding Clause is the cornerstone of our Canadian...
Lister on Reciprocity & Justice as Fairness
Posted on July 03, 2009Andrew D. Lister (Queen's University) has posted Justice and Reciprocity on SSRN. Here is the abstract: This paper addresses the question of when and why duties are conditional on compliance on the part of others, by examining the role of...
Linton on Judges, Transitional Justice, & the Rule of Law
Posted on July 03, 2009Suzannah Linton (University of Hong Kong - Faculty of Law) has posted The Role of Judges in Dealing with the Legacies of the Past (The Global Community YILJ, Vol. 9, 2009) on SSRN. Here is the abstract: This paper examines...
Cummings & Rhode on Public Interest Litigation
Posted on July 02, 2009Scott Cummings and Deborah Rhode (University of California, Los Angeles - School of Law and Stanford Law School) have posted Public Interest Litigation: Insights from Theory and Practice (Fordham Urban Law Journal, Vol. XXXVI, 2009) on SSRN. Here is the...
Huntington on Happiness & Family Law
Posted on July 02, 2009Clare Huntington (University of Colorado Law School) has posted Happy Families? Translating Positive Psychology into Family Law (Virginia Journal of Social Policy and the Law, 2009) on SSRN. Here is the abstract: Despite the well-documented finding in the field of...
Finkelman on Brown v. Board of Education
Posted on July 02, 2009Paul Finkelman (Albany Law School - Government Law Center) has posted The Centrality of Brown (CHOOSING EQUALITY: ESSAYS AND NARRATIVES ON THE DESEGREGATION EXPERIENCE, Robert L. Hayman, Jr., Leland Ware, eds., pp. 224-245, The Pennsylvania State University Press, 2009) on...
Ertman on Zelizer on Intimacy & Money
Posted on July 02, 2009Martha M. Ertman (University of Maryland Law School) has posted For Both Love and Money: Viviana Zelizer's 'The Purchase of Intimacy' (Law & Social Inquiry, Vol. 34, 2009) on SSRN. Here is the abstract: Viviana Zelizer's latest book, The Purchase...
Paschal on Congressional Power to Change Constitutional Law
Posted on July 02, 2009Richard A. Paschal (George Mason University Law School) has posted Congressional Power to Change Constitutional Law: Three Lacunae (University of Cincinnati Law Review, Vol. 77, p. 1053, 2009) on SSRN. Here is the abstract: One of the most basic principles...
Poirier on Stigma & the Civil Union/Marriage Distinction
Posted on July 01, 2009Marc R. Poirier (Seton Hall University - School of Law) has posted Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage' Distinction (Connecticut Law Review, Vol. 41, 2009) on SSRN. Here is the abstract: The Connecticut marriage equality case, Kerrigan v...
Simon on Surveillance & Virtual Worlds
Posted on July 01, 2009Bart Simon (Department of Sociology and Anthropology, Concordia University) has posted Playing with the Databased Self: Perfect Surveillance in the Age of Virtual Worlds on SSRN. Here is the abstract: It?s a typical day in the operations center at Blizzard...
Raphael Cohen-Almagor (University
Posted on July 01, 2009Raphael Cohen-Almagor (University of Hull) has posted Regulating Hate and Racial Speech in Israel (Cardozo Journal of International and Comparative Law, Vol. 17, pp. 101-110, 2009) on SSRN. Here is the abstract: Israel is a Jewish democracy. It is founded...
White on Judicial Reform in Mongolia
Posted on July 01, 2009Brent T. White (University of Arizona - James E. Rogers College of Law) has posted Rotten to the Core: Project Capture and the Failure of Judicial Reform in Mongolia (East Asia Law Review, 2009) on SSRN. Here is the abstract:...
Cortez on Cross-Border Health Care
Posted on July 01, 2009Nathan Cortez (Southern Methodist University - Dedman School of Law) has posted Recalibrating the Legal Risks of Cross-Border Health Care (Yale Journal of Health Policy, Law, and Ethics, Vol. 10, No. 1, 2010) on SSRN. Here is the abstract: The...
Ikemoto on Stem Cell Research
Posted on July 01, 2009Lisa C. Ikemoto (UC Davis) has posted Eggs as Capital: Human Egg Procurement in the Fertility Industry and the Stem Cell Research Enterprise (Signs: Journal of Women in Culture and Society, Vol. 34, p. 763, 2009) on SSRN. Here is...
Brennan on Natural Law & Smith's "Law's Quandary"
Posted on June 30, 2009Patrick McKinley Brennan (Villanova University School of Law) has posted The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys (Georgetown Journal of Law & Public Policy, Forthcoming)...
Bellin on Adverse Comment on Silence
Posted on June 30, 2009Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Recasting the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence on SSRN. Here is the abstract: The landmark case of Griffin v. California holds that...
Monahan, Walker, & Mitchell on Social Framework Evidence
Posted on June 30, 2009John Monahan , Laurens Walker and Gregory Mitchell (University of Virginia - School of Law , University of Virginia - School of Law and University of Virginia School of Law) hve posted The Limits of Social Framework Evidence on SSRN....
Book Announcement & Romano on Cost-Benefit Analysis of US Participation in International Courts
Posted on June 30, 2009Cesare P.R. Romano (Loyola Law School Los Angeles) has posted The Sword and the Scales: The United States and International Courts and Tribunals on SSRN. Here is the abstract: The Sword and the Scales is the first in-depth and comprehensive...
Green on Judicial Activism
Posted on June 30, 2009Craig Green (Temple University - James E. Beasley School of Law) has posted An Intellectual History of Judicial Activism (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract: Over the past six decades, the term "judicial activism" has become...
Markel & Polsky on Taxing Punitive Damages
Posted on June 30, 2009Dan Markel and Gregg D. Polsky (Florida State University College of Law and Florida State University - College of Law) have posted Taxing Punitive Damages on SSRN. Here is the abstract: This Article addresses two basic and important questions given...
Fisk & Malamud on the NLRB
Posted on June 29, 2009Catherine Fisk and Deborah C. Malamud (University of California, Irvine Law School and New York University - School of Law) have posted The NLRB in Administrative Law Exile: Problems with its Structure and Function and Suggestions for Reform (Duke Law...
Katz on Anticommons
Posted on June 29, 2009Larissa M. Katz (Queen's University - Faculty of Law) has posted Red Tape and Gridlock (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN. Here is the abstract: This paper concerns the role of property theory in explaining why so...
Finkelman on School Vouchers & Religious Liberty
Posted on June 29, 2009Paul Finkelman (Albany Law School - Government Law Center) has posted School Vouchers, Thomas Jefferson, Roger Williams, and Protecting the Faithful: Warnings from the Eighteenth Century and the Seventeenth Century on the Danger of Establishments to Religious Communities (Brigham Young...
Rotunda on the Spending Clause
Posted on June 29, 2009Kyndra K. Rotunda (Chapman University School of Law) has posted The Spending Clause (ENCYCLOPEDIA OF THE SUPREME COURT, David S. Tanenhaus, ed., Vol. 4, p. 436, MacMillan Reference USA, 2008) on SSRN. Here is the abstract: This article discusses and....
Surden on Privacy
Posted on June 29, 2009Harry Surden (University of Colorado Law School) has posted Structural Rights in Privacy on SSRN. Here is the abstract: This Essay challenges the view that privacy interests are protected primarily by law. Instead, I argue that much of society's privacy...
McGuinness on Missouri v. Holland
Posted on June 29, 2009Margaret E. McGuinness (University of Missouri School of Law) has posted Federalism and Horizontality in International Human Rights (Missouri Law Review, Vol. 73, p. 1265, 2008) on SSRN. Here is the abstract: This commentary to the 2008 Missouri Law Symposium,...
Legal Theory Lexicon: Positive & Normative Legal Theory
Posted on June 28, 2009Introduction One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest...
Legal Theory Bookworm
Posted on June 27, 2009The Legal Theory Bookworm recommends Intergenerational Justice, Edited by Axel Gosseries and Lukas H. Meyer. Here is a description: Is it fair to leave the next generation a public debt? Is it defensible to impose legal rules on them through...
Download of the Week
Posted on June 27, 2009The Download of the Week is The Substantive Principle of Equal Treatment (Legal Theory, Vol. 15, 2009) by Patrick Shin. Here is the abstract: This paper attempts to identify a principle of equal treatment that gives specific structure to our...
Finkelman on the Emancipation Proclamation
Posted on June 26, 2009Paul Finkelman (Albany Law School - Government Law Center) has posted Lincoln, Emancipation, and the Limits of Constitutional Change (Supreme Court Review, 2008) on SSRN. Here is the abstract: This article examines the policy behind President Lincoln?s Emancipation Proclamation...
Joslin on Full Faith & Credit & Interestate Recognition of Parentage
Posted on June 26, 2009Courtney G. Joslin (UC Davis School of Law) has posted Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond (Ohio State Law Journal, Vol. 70, No. 563, 2009) on SSRN. Here is the abstract: In...
Johnson on Racial Profiling
Posted on June 26, 2009Kevin R. Johnson (University of California, Davis - School of Law) has posted How Racial Profiling in America Became the 'Law of the Land': United States v. Brignoni-Ponce and Whren v. United States and the Need for Rebellious Lawyering (Georgetown...
Anderson on Influence
Posted on June 26, 2009Heidi Reamer Anderson (Florida Coastal School of Law) has posted Allocating Influence (Utah Law Review, Forthcoming) on SSRN. Here is the abstract: Influence peddlers, influence seekers, and government officials have a long and fascinating history. Centuries ago, those in need...
Cohen on Guzman on Rational Choice & International Law
Posted on June 26, 2009Harlan Grant Cohen (University of Georgia School of Law) has posted Can International Law Work? A Constructivist Expansion (Berkeley Journal of International Law (BJIL), Vol. 27, 2009) on SSRN. Here is the abstract: An increasing number of scholars have begun...
Cohen on "Operation Cast Lead" & Proportionality
Posted on June 26, 2009Amichai Cohen (Ono Academic College - Law School) has posted The Principle of Proportionality in the Context of Operation Cast Lead: Institutional Perspectives (Rutgers Law Record, Vol. 35, 2009) on SSRN. Here is the abstract: The round of fighting between...
Rotunda on Guantanamo & the Geneva Convention
Posted on June 26, 2009Kyndra K. Rotunda (Chapman University School of Law) has posted Applying Geneva Convention Principles to Guantanamo Bay (University of Richmond Law Review, Vol. 43, No. 3, p. 1067, 2009) on SSRN. Here is the abstract: This article analyzes and discusses...
Waldron on the Decline of Natural Right
Posted on June 25, 2009Jeremy Waldron (New York University - School of Law) has posted The Decline of Natural Right on SSRN. Here is the abstract: What happened to the doctrine of natural right in the nineteenth century? We know that it flourished in...
Moriarty on Neuroimaging & Truth
Posted on June 25, 2009Jane Campbell Moriarty (University of Akron School of Law) has posted Visions of Deception: Neuroimages and the Search for Truth (Akron Law Review, Vol. 42, p. 739, 2009) on SSRN. Here is the abstract: The historical use of science in...
Fadel on Political Liberalism, Islamic Family Law, and Arbitration
Posted on June 25, 2009Mohammad Fadel (University of Toronto - Faculty of Law) has posted Political Liberalism, Islamic Family Law and Family Law Pluralism: Lessons from New York on Family Law Arbitration (MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL...
Gedicks on Nontangible Harms & the Establishment Clause
Posted on June 25, 2009Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted Atmospheric Harms in Constitutional Law (Maryland Law Review, November 2009) on SSRN. Here is the abstract: Prepared for the University of Maryland Constitutional Law Workshop, this...
Kuo on Michelman on Constitutional Legitimacy
Posted on June 25, 2009Ming-Sung Kuo (Max Planck Institute for Comparative Public Law and International Law) has posted Cutting the Gordian Knot of Legitimacy Theory? An Anatomy of Frank Michelman?s Presentist Critique of Constitutional Authorship (International Journal of Constitutional Law, Vol...
Originalism Here & There
Posted on June 25, 2009Originalism popped up hither and yon yesterday: In the New York Times, Rammesh Ponnuru opined: Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body...
Book Announcement: Citizens, Courts, and Confirmations by Gibson & Caldeira
Posted on June 25, 2009Citizens, Courts, and Confirmations Positivity Theory and the Judgments of the American People James L. Gibson & Gregory A. Caldeira To read the entire book description or the introduction, please visit: http://press.princeton.edu/titles/8940.html In recent years the American public has witnessed...
Job Announcement: VAP at Rutgers-Camden for 2009-10
Posted on June 24, 2009Visiting Assistant Professor Rutgers-Camden Law Rutgers-Camden Law seeks one or two Visiting Assistant Professors for the 2009-2010 Academic Year. Applications for one or two VAP positions are invited from law school graduates, as well as Ph.D. recipients or candidates in...
Welcome to the Blogosphere . . .
Posted on June 24, 2009. . . to Computational Legal Studies, an important blog with unique content. Check out Institutional Rules, Strategic Behavior, Agenda Control & Inferences ? Explaining Chief Justice Roberts Anomalous Decision in NAMUNDO. And be sure to check out this post...
Zietlow on Goluboff on Equality & Civil Rights
Posted on June 24, 2009Rebecca E. Zietlow (University of Toledo - College of Law) has posted Belonging and Empowerment: A New 'Civil Rights' Paradigm Based on Lessons from the Past (Constitutional Commentary, Vol 25, p. 353, 2009) on SSRN. Here is the abstract: Despite...
Kuo on Global Tax Competitition & Constitutional Democracy
Posted on June 24, 2009Ming-Sung Kuo (Max Planck Institute for Comparative Public Law and International Law) has posted (Dis)Embodiments of Constitutional Authorship: Global Tax Competition and the Crisis of Constitutional Democracy (George Washington International Law Review, Vol...
Albert on Nonconstitutional Amendments
Posted on June 24, 2009Richard Albert (Boston College - Law School) has posted Nonconstitutional Amendments (Canadian Journal of Law & Jurisprudence, Vol. 22, p. 5, 2009) on SSRN. Here is the abstract: The constitutional text in a constitutional democracy does not necessarily constrain constitutional...
Dillard on the Children's Rights Convention
Posted on June 24, 2009Carter Dillard (Loyola University New Orleans) has posted Prospective Parents and the Children's Rights Convention (American University International Law Review, Forthcoming) on SSRN. Here is the abstract: This Article addresses the novel question of whether states parties can successfully implement...
Kuklin on Evolutionary Biology & Morality
Posted on June 24, 2009Bailey H. Kuklin (Brooklyn Law School) has posted The Natures of Universal Moralities (Brooklyn Law Review, Forthcoming) on SSRN. Here is the abstract: One of the abiding lessons from postmodernism is that reason does not go all the way down....
McGuinness on Counterterrorism, Presidential Power, and Internationalism
Posted on June 24, 2009Margaret E. McGuinness (University of Missouri School of Law) has posted The President, Congress and the Security Council: Counterterrorism and the Use of Force Through the Internationalist Lens (Willamette Law Review, Vol. 45, p. 417, 2009) on SSRN. Here is...
Calabresi & Terrell on the Number of States & Federalism
Posted on June 23, 2009Steven G. Calabresi and Nicholas K. Terrell (Northwestern University - School of Law and Northwestern University School of Law) have posted The Number of States and the Economics of American Federalism (Northwestern Law & Econ Research Paper No. 09-08) on...
Raban on Vague Legal Standards
Posted on June 23, 2009Ofer Raban (University of Oregon - School of Law) has posted The Fallacy of Legal Certainty: Why Vague Legal Standards May Be Better for Capitalism, Liberalism, and Democracy on SSRN. Here is the abstract: It is said that clear and...
Katz on Abuse of Right & Property Theory
Posted on June 23, 2009Larissa M. Katz (Queen's University - Faculty of Law) has posted A Jurisdictional Principle of Abuse of Right on SSRN. Here is the abstract: A principle of abuse of right means that an owner?s reasons for action, and not just...
Voigt on Measuring the Rule of Law
Posted on June 23, 2009Stefan Voigt (University of Marburg - Faculty of Economics and Business Administration) has posted How to Measure the Rule of Law on SSRN. Here is the abstract: I argue that the rule of law consists of many dimensions and that...
Wendel on Bruff, Goldsmith, Mayer, & Sands on the Torture Memos
Posted on June 23, 2009W. Bradley Wendel (Cornell Law School) has posted The Torture Memos and the Demands of Legality on SSRN. Here is the abstract: This review essay considers five recent books concerning the role of governmetn lawyers in the Bush Administration's war...
Zamir & Medina on Private & Public Morality
Posted on June 23, 2009Eyal Zamir and Barak Medina (Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law) have posted Private and Public Morality (LAW, ECONOMICS AND MORALITY, Oxford University Press, Forthcoming) on SSRN. Here is...
Poirier on Same Sex Marriage & Gender as Performance
Posted on June 22, 2009Marc R. Poirier (Seton Hall University - School of Law) has posted Gender, Place, Discursive Space: Where is Same-Sex Marriage? (Florida International University Law Review, Vol. 3, No. 2, p. 307, 2008) on SSRN. Here is the abstract: Performances of....
Bommarito, Katz, & Zelner on Network Representations of Supreme Court Decisions
Posted on June 22, 2009Michael James Bommarito II , Daniel Martin Katz and Jon Zelner (University of Michigan at Ann Arbor - Center for Study of Complex Systems , University of Michigan - Department of Political Science and University of Michigan at Ann Arbor...
Hasen on NAMUDNO
Posted on June 22, 2009Check out Rick Hasen's Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked for analysis of the surprising decision that rests on "constitutional avoidance" grounds.
Shin on Equal Treatment
Posted on June 22, 2009Patrick Shin (Suffolk University Law School) has posted The Substantive Principle of Equal Treatment (Legal Theory, Vol. 15, 2009) on SSRN. Here is the abstract: This paper attempts to identify a principle of equal treatment that gives specific structure to...
Pardy on Markets, Ecosystems, and Legal Instrumentalism
Posted on June 22, 2009Bruce Pardy (Queen's University - Faculty of Law) has posted The Hand is Invisible, Nature Knows Best, and Justice is Blind: Markets, Ecosystems, Legal Instrumentalism, and the Natural Law of Systems (Tulsa Law Review, Vol. 44, pps. 67-92, 2009) on...
Calo on White on Living Speech
Posted on June 22, 2009Zachary R. Calo (Valparaiso University School of Law) has posted Law, Language and Love: James Boyd White?s Living Speech: Resisting the Empire of Force (Journal of Law, Philosophy and Culture, Forthcoming) on SSRN. Here is the abstract: A review essay...
Lerner & Lund on District of Columbia v. Heller
Posted on June 22, 2009Craig S. Lerner and Nelson Lund (George Mason University - School of Law and George Mason University School of Law) have posted Heller and Nonlethal Weapons (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract: Two important opinions in....
Legal Theory Lexicon: Transparency
Posted on June 21, 2009Introduction Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good...
Legal Theory Bookworm
Posted on June 21, 2009The Legal Theory Bookworm recommends How Do You Know?: The Economics of Ordinary Knowledge by Russell Hardin. Here is a description: How do ordinary people come to know or believe what they do? We need an account of this process...
Download of the Week
Posted on June 21, 2009The Download of the Week is Rawlsian Affirmative Action by Robert S. Taylor. Here is an except from the introduction: What implications does Rawls?s justice as fairness have for affirmative?action policies? Surprisingly, Rawls never addressed this issue in his writings?apart...
Ibrahim on Debt as Venture Capital
Posted on June 19, 2009Darian M. Ibrahim (University of Wisconsin Law School) has posted Debt as Venture Capital on SSRN. Here is the abstract: Venture debt, or loans to rapid-growth start-ups, is a puzzle. How are start-ups with no track records, positive cash flows,...
Dillard on Valuing Having Childre
Posted on June 19, 2009Carter Dillard (Loyola University New Orleans) has posted Valuing Having Children (Journal of Law & Family Studies, Forthcoming) on SSRN. Here is the abstract: Are there objective values on which to base the claim of a right to procreate? Can...
Siegel on the Judicial Role
Posted on June 19, 2009Andrew M. Siegel (Seattle University School of Law) has posted Notes Towards an Alternate Vision of the Judicial Role (Seattle University Law Review, Vol. 32, p. 511, 2009) on SSRN. Here is the abstract: As many scholars and critics have...
Kochan on Property, Public Choice, and the Permitting Process
Posted on June 19, 2009Donald J. Kochan (Chapman University - School of Law) has posted Ripe Standing Vines and the Jurisprudential Tasting of Matured Legal Wines: Property and Public Choice in the Permitting Process (BYU Journal of Public Law, Vol. 24, No. 1, 2009)...
Lipshaw on the Financial Crisis, Complexity & Epistemology
Posted on June 19, 2009Jeffrey M. Lipshaw (Suffolk University Law School) has posted The Epistemology of the Financial Crisis: Complexity, Causation, Law, and Judgment on SSRN. Here is the abstract: The focus on complexity as a problem of the financial meltdown of 2008-09 suggests...
Tsai on Langston Hughes's Poetry as Popular Constitutionalism
Posted on June 19, 2009Robert L. Tsai (American University - Washington College of Law) has posted Langston Hughes: The Ethics of Melancholy Citizenship on SSRN. Here is the abstract: As a body of work, the poetry of Langston Hughes presents a vision of how...
Darmer on the Bybee-Yoo Memorandum
Posted on June 18, 2009M. Katherine B. Darmer (Chapman University - School of Law) has posted Civil Liberties Lost, Waterboarding and the Legacy of the Bybee-Yoo 'Torture-Power' Memorandum: Reflections from an Erstwhile Bush Administration Apologist on SSRN. Here is the abstract: This symposium piece...
Goeschl & Swanson on Diffusion of Technology & IP Regimes
Posted on June 18, 2009Timo Goeschl and Timothy M. Swanson (Department of Economics, University of Heidelberg and University College London - Department of Economics and Faculty of Law) have posted The Distributive Impact of Global Intellectual Property Regimes: An Empirical Assessment of Diffusion and...
Yen on Third Party Copyright Liability & Freedom of Speech
Posted on June 18, 2009Alfred C. Yen (Boston College - Law School) has posted A First Amendment Perspective on the Construction of Third Party Copyright Liability (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract: This Essay offers preliminary thoughts about the...
Ku, Sun, & Fan on Empirical Study of Copyright
Posted on June 18, 2009Raymond Shih Ray Ku, Jiayang Sun and Yiying Fan (Case Western Reserve University - School of Law , Case Western Reserve University - Department of Statistics and Case Western Reserve University - Department of Statistics) have posted Does Copyright Law...
Conley, Broome, & Krawiec on Diversity on Corporate Boards
Posted on June 18, 2009John M. Conley , Lissa L. Broome and Kimberly D. Krawiec (University of North Carolina at Chapel Hill - School of Law , University of North Carolina at Chapel Hill - School of Law and Duke University) have posted Narratives...
Anderson on Parentage & Assisted Reproductive Technology
Posted on June 18, 2009Linda S. Anderson (Stetson University College of Law) has posted Adding Players to the Game: Parentage Determinations When Assisted Reproductive Technology is Used to Create Families (Arkansas Law Review, Vol. 62, No. 1, p. 29, 2009) on SSRN. Here is...
Lynk on Labor Law & Inequality
Posted on June 17, 2009Michael S. Lynk (University of Western Ontario) has posted 'Labour Law and the New Inequality' on SSRN. Here is the abstract: Rising economic inequality in Canada and the Western world has become an unspoken but influential political theme over the...
Addis on Deiberative Democracy in Fractured Societies
Posted on June 17, 2009Adeno Addis (Tulane University - School of Law) has posted Deliberative Democracy in Severely Fractured Societies (Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2009) on SSRN. Here is the abstract: The world is full of boundaries. Whatever...
Taylor on Rawlsian Affirmative Action
Posted on June 17, 2009Robert S. Taylor has posted Rawlsian Affirmative Action (Ethics 119 (April 2009): 476?506) on the Chicago Journals Website (subscription required, many library have access). Here is the access: What implications does Rawls?s justice as fairness have for affirmative?action policies? Surprisingly,...
Burke & McCouch on Arthur Anderson v. Carlisle
Posted on June 17, 2009Karen C. Burke and Grayson M.P. McCouch (University of San Diego School of Law and University of San Diego School of Law) have posted Carlisle: A 'Hollow Victory' on SSRN. Here is the abstract: Arthur Andersen LLP v. Carlisle is...
Harris on Accountability-Based Policing
Posted on June 17, 2009David A. Harris (University of Pittsburgh - School of Law) has posted How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule (Ohio State Journal of Criminal Law, Vol. 7, 2009) on SSRN. Here is the...
Chander on Bainbridge on Chander on Non-Controlling Shareholders
Posted on June 16, 2009Anupam Chander (University of California, Davis - School of Law) has posted Corporate Law's Distributive Design (Yale Law Journal Pocket Part, Forthcoming) on SSRN. Here is the abstract: I respond to Steve Bainbridge?s critique of my 2005 Yale Law Journal...
Riker on Democratic Peace & Decent Societies
Posted on June 16, 2009Walter Riker (University of West Georgia) has posted The Democratic Peace is Not Democratic:On Behalf of Rawls' Decent Societies (Political Studies, June 2008) on SSRN. Here is the abstract: The democratic peace is secured not simply (if at all) through...
Green on Theft by Omission
Posted on June 16, 2009Stuart P. Green (Rutgers Law School-Newark) has posted Theft by Omission (ESSAYS IN CRIMINAL LAW IN HONOUR OF SIR GERALD GORDON, Edinburgh University Press, 2010) on SSRN. Here is the abstract: Other things being equal, should the law regard a...
Prado & Trebilcock on the Institutions, Path Dependence, & Development
Posted on June 16, 2009Mariana Mota Prado and Michael J. Trebilcock (University of Toronto - Faculty of Law and University of Toronto - Faculty of Law) have posted Path Dependence, Development, and the Dynamics of Institutional Reform (University of Toronto Law Journal, 2009) on...
McAward on the 13th Amendment Enforcement Power
Posted on June 16, 2009Jennifer Mason McAward (Notre Dame Law School) has posted The Scope of Congress?s Thirteenth Amendment Enforcement Power after City of Boerne v. Flores on SSRN. Here is the abstract: In Jones v. Alfred H. Mayer Co., the Supreme Court carved...
Starr on Student Speech & Civic Culture
Posted on June 16, 2009Kenneth W. Starr (Pepperdine University - School of Law) has posted From Fraser to Frederick: Bong Hits and the Decline of Civic Culture (UC Davis Law Review, Vol. 42, 2009) on SSRN. Here is the abstract: Student speech in public...
van Harten on European Law Precedents of National Courts
Posted on June 15, 2009Herman van Harten (University of Amsterdam - Faculty of Law) has posted National European Law Precedents on SSRN. Here is the abstract: Although EU law doctrine stresses the vital importance of national courts in the EU judicial system, it is...
Epstein, Landes, & Posner on Supreme Court Questioning Patterns
Posted on June 15, 2009Lee Epstein, William M. Landes and Richard A. Posner (Northwestern University - School of Law, University of Chicago Law School and University of Chicago Law School) have posted Inferring the Winning Party in the Supreme Court from the Pattern of...
Trakman on Contract Law in Cyberspace
Posted on June 15, 2009Leon Trakman (University of New South Wales - Faculty of Law) has posted The Boundaries of Contract Law in Cyberspace (Revue de droit des Affaires Internationales (RDAI) / International Business Law Journal / (IBLJ), No. 2, 2009) on SSRN. Here...
Dawson on Soft Law in the EU
Posted on June 15, 2009Mark Dawson (European University Institute) has posted Soft Law and the Rule of Law in the European Union: Revision or Redundancy? on SSRN. Here is the abstract: The increasing use in the EU of soft law norms has created an...
Sachs on Transnational Law & Chemical Regulaton
Posted on June 15, 2009Noah Sachs (University of Richmond School of Law) has posted Jumping the Pond: Transnational Law and the Future of Chemical Regulation (Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract: Just as domestic pollution can cause transnational externalities, domestic...
Lui on the Foundatoins of American Copyright Law
Posted on June 15, 2009Lydia Si-Ngaw Lui (William Mitchell College of Law) has posted Foundations of Modern American Copyright (Intellectual Property Research Series, Vol. 1, No. 2) on SSRN. Here is the abstract: "The progress of copyright law does not take place by revolutions,...
Legal Theory Lexicon: Fact and Value
Posted on June 14, 2009Introduction Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact/value distinction. Of course, the relationship between fact and value...
Legal Theory Bookworm
Posted on June 13, 2009The Legal Theory Bookworm recommends The Yale Biographical Dictionary of American Law edited by Roger K. Newman. Here is a description: This book is the first to gather in a single volume concise biographies of the most eminent men and...
Download of the Week
Posted on June 13, 2009The Download of the Week is Divide and Conquer by Eric A. Posner, Kathryn E. Spier and Adrian Vermeule. Here is the abstract: The maxim ?divide and conquer? (divide et impera) is invoked frequently in law, history, and politics, but...
Shaman on Originalism
Posted on June 12, 2009Jeffrey M. Shaman (DePaul University - College of Law) has posted The End of Originalism on SSRN. Here is the abstract: Much has been written about originalism - the idea that the Constitution should be interpreted according to its original...
Aolain on Feminist Theory & Internatonal Human Rights
Posted on June 12, 2009Fionnuala D. Ni Aolain (University of Ulster at Jordanstown - Transitional Justice Institute) has posted Learning the Lessons: What Feminist Legal Theory Teaches International Human Rights Law and Practice on SSRN. Here is the abstract: In the contemporary international moment,...
Dodek on Judicial Participation in Public Policy Processes
Posted on June 12, 2009Adam M. Dodek (University of Ottawa - Faculty of Law) has posted Judicial Independence as a Public Policy Instrument on SSRN. Here is the abstract: The participation of judges in commissions of inquiry has been an important part of the...
Winn on Globalization & Information Technology Standard
Posted on June 12, 2009Jane K. Winn (University of Washington - School of Law) has posted Globalization and Standards: The Logic of Two-Level Games (I/S: Journal of Law and Policy for the Information Society, 2009) on SSRN. Here is the abstract: The emergence of...
Alexander, Penalver, Singer, & Underkuffler on Progressive Property
Posted on June 12, 2009Gregory S. Alexander, Eduardo M. Penalver, Joseph William Singer and Laura Underkuffler (Cornell Law School, Cornell Law School, Harvard Law School and Duke University - School of Law) have posted A Statement of Progressive Property (Cornell Law Review, Vol...
Zumbansen on Legal Sociology
Posted on June 12, 2009Peer Zumbansen (York University - Osgoode Hall Law School) has posted Law?s Knowledge and Law?s Effectiveness: Reflections from Legal Sociology and Legal Theory on SSRN. Here is the abstract: Legal sociology is in a crisis ? or so it is...
Rai on the PTO
Posted on June 11, 2009Arti K. Rai (Duke University School of Law) has posted Growing Pains in the Administrative State: The Patent Office's Troubled Quest for Managerial Control (University of Pennsylvania Law Review, Vol. 157, 2009) on SSRN. Here is the abstract: In the....
Jensen on an AIG Bonus Tax
Posted on June 11, 2009Erik M. Jensen (Case Western Reserve University - School of Law) has posted Would a Tax on AIG Bonus Recipients Really Be a Tax? (Tax Notes, Vol. 123, p. 1033, 2009) on SSRN. Here is the abstract: The proposals seem...
Grove on Standing & Nondelegation
Posted on June 11, 2009Tara Leigh Grove (Florida State University - College of Law) has posted Standing as an Article II Nondelegation Doctrine (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 4, 2009) on SSRN. Here is the abstract: In this Article,....
Sellers on Cicero & Modern Legal Thought
Posted on June 11, 2009Mortimer Newlin Stead Sellers (University of Baltimore - School of Law) has posted The Influence on Marcus Tullius Cicero on Modern Legal and Political Ideas (Ciceroniana, the Atti of Colloquium Tullianum Anni, MMVIII) on SSRN. Here is the abstract: Marcus...
Hadfield on Models & Comparative Law
Posted on June 11, 2009Gillian Hadfield (USC Law School and Department of Economics) has posted The Strategy of Methodology: The Virtues of Being Reductionist for Comparative Law (University of Toronto Law Journal, Vol. 59, p. 223, 2009) on SSRN. Here is the abstract: This...
Gardner on Persuasion & Election Law
Posted on June 11, 2009James A. Gardner (University at Buffalo Law School, SUNY) has posted What are Campaigns for? The Role of Persuasion in Electoral Law and Politics on SSRN. Here is the abstract: Election campaigns ought to be serious occasions in the life...
Redding on Proposition 8
Posted on June 11, 2009Jeff Redding (Saint Louis University School of Law) has posted Proposition 8 and the Future of American Same-Sex Marriage Activism (Nexus, Vol. 14, p. 113, 2009) on SSRN. Here is the abstract: This short Essay represents an attempt to encourage...
Garvey on Mistake of Fact
Posted on June 10, 2009Stephen P. Garvey (Cornell Law School) has posted When Should a Mistake of Fact Excuse (Texas Tech Law Review, 2009) on SSRN. Here is the abstract: This symposium contribution advances two claims. First, a mistake (or ignorance) of fact should...
Starger on the Forms of Legal Argument
Posted on June 10, 2009Colin P. Starger (New York University - School of Law) has posted The DNA of an Argument: A Case Study in Legal Logos (Journal of Criminal Law and Criminology, Winter 2009) on SSRN. Here is the abstract: This article develops...
Schuster on In re Bilski
Posted on June 10, 2009W. Michael Schuster II (Vinson & Elkins LLP) has posted Predictability and Patentable Processes: The Federal Circuit's in Re Bilski Decision and Its Effect on the Incentive to Invent (Columbia Science and Technology Law Review, Forthcoming) on SSRN. Here is...
Kesan & Shah on "Running Code" Requirements & Open Standards Policies
Posted on June 10, 2009Jay P. Kesan and Rajiv C. Shah (University of Illinois - College of Law and University of Illinois at Chicago - Department of Communication) have posted Running Code as Part of an Open Standards Policy on SSRN. Here is the...
Menell on Indirect Copyright Liability & Innovation
Posted on June 10, 2009Peter S. Menell (University of California, Berkeley - School of Law) has posted Indirect Copyright Liability and Technological Innovation on SSRN. Here is the abstract: Over the past decade, numerous scholars and commentators have asserted that the indirect copyright liability...
Anderson on Targeted Killings
Posted on June 09, 2009Kenneth Anderson (Washington College of Law, American University) has posted Targeted Killing in U.S. Counterterrorism Strategy and Law on SSRN. Here is the abstract: Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an...
Greene on District of Columbia v. Heller
Posted on June 09, 2009Jamal Greene (Columbia University - Law School) has posted Heller High Water? The Future of Originalism (Harvard Law & Policy Review, Volume 3) on SSRN. Here is the abstract: This Article considers the future of originalism in the wake of...
McDonald on Glazer on Discrimination in Obscenity Law
Posted on June 09, 2009Barry McDonald (Pepperdine University - School of Law) has posted If Obscenity Were to Discriminate (Northwestern University Law Review, Vol. 103, 2009) on SSRN. Here is the abstract: This essay develops the author's criticisms of Professor Elizabeth Glazer's thoughtful essay,...
Posner, Spier, and Vermeule on "Divide and Conquer"
Posted on June 09, 2009Eric A. Posner, Kathryn E. Spier and Adrian Vermeule (University of Chicago - Law School , Harvard University - Harvard Law School and Harvard University - Harvard Law Schoool) have posted Divide and Conquer on SSRN. Here is the abstract:...
Addis on Univesal Jurisdiction & International Community
Posted on June 09, 2009Adeno Addis (Tulane University - School of Law) has posted Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction (Human Rights Quarterly, Vol. 31, pp. 129-162, 2009) on SSRN. Here is the abstract: The assertion of prescriptive and adjudicative...
Ward on Antiquities, Forests, and the Phenomenology of Value
Posted on June 09, 2009Tony Ward (University of Hull - School of Law) has posted Antiquities, Forests and Simmel's Sociology of Value (ARCHAEOLOGY AND CRIMINOLOGY: STUDIES IN LOOTED ANTIQUITIES, Simon Mackenzie and Penny Green, eds., Oxford Hart, 2009) on SSRN. Here is the abstract:...
Leonard on Dred Scott
Posted on June 08, 2009Gerald Leonard (Boston University School of Law) has posted Law and Politics Reconsidered: A New Constitutional History of Dred Scott (Law and Social Inquiry, Vol. 34, No. 3, 2009) on SSRN. Here is the abstract: This essay synthesizes recent writing....
Grove on "Vertical Maximalism"
Posted on June 08, 2009Tara Leigh Grove (Florida State University - College of Law) has posted The Structural Case for Vertical Maximalism (Cornell Law Review, Vol. 95, 2009) on SSRN. Here is the abstract: Many prominent jurists and scholars, including those with outlooks as...
Legal Theory Lexicon: Content Rules and Decision Rules
Posted on June 08, 2009Introduction Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law...
Dane on Beale
Posted on June 08, 2009Perry Dane (Rutgers School of Law - Camden) has posted Joseph Henry Beale, Jr. (THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW, pp. 31-32, Roger K. Newman, ed., Yale University Press, 2009) on SSRN. Here is the abstract: his short entry...
Strandburg on the International Intellectual Property Regime
Posted on June 08, 2009Katherine J. Strandburg (DePaul University - College of Law) has posted Accommodating User Innovation in the International Intellectual Property Regime: A Global Administrative Law Approach (Acta Juridica, 2009) on SSRN. Here is the abstract: In this symposium article, I argue...
McJohn on Bilski
Posted on June 08, 2009Stephen M. McJohn (Suffolk University Law School) has posted Scary Patents (Northwestern Journal of Technology and Intellectual Property, Vol. 7, 2009) on SSRN. Here is the abstract: The Federal Circuit, in In re Bilski, announced a new test for patentable...
Visiting Faculty List at "The Faculty Lounge"
Posted on June 08, 2009The Faculty Lounge is putting together a list of next year's visitors: follow this link.
Afsharipour on Corporate Governance in India
Posted on June 08, 2009Afra Afsharipour (UC Davis School of Law) has posted Corporate Governance Convergence: Lessons from the Indian Experience (Northwestern Journal of International Law & Business, Vol. 29, No. 2, 2009) on SSRN. Here is the abstract: Over the past two decades,...
Legal Theory Bookworm
Posted on June 06, 2009The Legal Theory Bookworm recommends The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty by Helen J. Knowles. Here is a description: At the ideological center of the Supreme Court sits Anthony M. Kennedy, whose pivotal role on...
Download of the Week
Posted on June 06, 2009The Download of the Week is The Constitutional Power to Interpret International Law by Michael Stokes Paulsen. Here is the abstract: What is the force of international law as a matter of U.S. law 'Who determines that force' This Essay...
Eisenberg, Heise, Waters, and Wells on Empirical Study of Punitive Damages
Posted on June 05, 2009Theodore Eisenberg, Michael Heise, Nicole L. Waters and Martin T. Wells (Cornell University - School of Law, Cornell Law School, National Center for State Courts and Cornell University - School of Law) have posted The Decision to Award Punitive Damages:...
Alderman on the Proposed Arbitration Fairness Act
Posted on June 05, 2009Richard M. Alderman (University of Houston Law Center) has posted Why We Really Need the Arbitration Fairness Act: It's All About Separation of Powers (Journal of Consumer & Commercial Law, Vol. 12, p. 151, 2009) on SSRN. Here is the...
McClain on Guinier on Demosprudence & Dissent
Posted on June 05, 2009Linda C. McClain (Boston University - School of Law) has posted Supreme Court Justices, Empathy, and Social Change: A Comment on Lani Guinier's Demosprudence Through Dissent (Boston University Law Review, Vol. 89, pp. 589-604, 2009) on SSRN. Here is the...
Knop, Michaels, & Riles on a Conflicts Approach to International Law in Domestic Courts
Posted on June 05, 2009Karen Knop, Ralf Michaels, and Annelise Riles (Faculty of Law, University of Toronto , Duke University - School of Law and Cornell University - School of Law) have posted International Law in Domestic Courts: A Conflict of Laws Approach (American...
Chander on Cyber Trade
Posted on June 05, 2009Anupam Chander (University of California, Davis - School of Law) has posted Trade 2.0 (Yale Journal of International Law) on SSRN. Here is the abstract: Where the last century saw the dismantling of barriers to trade in goods, the new...
Vinelli on Taxing Sugar-Based Drinks
Posted on June 05, 2009Ryan Vinelli (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Sugar Taxes Aren?t Sweet: The Case Against Pigouvian Taxes on Sugar-Based Drinks on SSRN. Here is the abstract: Everyday there is a new call by politicians and...
Ratner on International Law & Ethics
Posted on June 04, 2009Steven R. Ratner (University of Michigan at Ann Arbor - Law School) has posted Bringing Ethical Inquiry into International Law (Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Brill, 2010)) on SSRN. Here is...
Gerber, Huber, Ha, Dowling, and Doherty on Personality & Ideology
Posted on June 04, 2009Alan Gerber , Gregory Huber , Shang E. Ha , Conor Dowling and David Doherty (Yale University - Department of Political Science) have posted Personality Traits and the Dimensions of Political Ideology on SSRN. Here is the abstract: We use...
Sharkey on Agency Forcing & Federalism
Posted on June 04, 2009Catherine M. Sharkey (New York University - School of Law) has posted Federalism Accountability: 'Agency-Forcing' Measures (Duke Law Journal, Vol. 58, 2009) on SSRN. Here is the abstract: This Article takes as its starting point the ?agency reference model? for...
Csardi, Tobochnik, Erdi, Zalanyi, & Strandburg on Patent Citation Networks
Posted on June 04, 2009Gabor Csardi, Jan Tobochnik, Peter Erdi, Laszlo Zalanyi and Katherine J. Strandburg (Hungarian Academy of Sciences , Kalamazoo College , Hungarian Academy of Sciences , Hungarian Academy of Sciences and DePaul University - College of Law) have posted Patent Citation...
Markel on Indeterminate Sentencing
Posted on June 04, 2009Dan Markel (Florida State University College of Law) has posted Luck or Law? The Constitutional Case Against Indeterminate Sentencing on SSRN. Here is the abstract: In the majority of states indeterminate sentencing schemes prevail -- under which the decision for...
Bebchuk & Spamann on Regulating Banker's Pay
Posted on June 04, 2009Lucian A. Bebchuk and Holger Spamann (Harvard University - Harvard Law School and Harvard University - Harvard Law School) have posted Regulating Bankers? Pay on SSRN. Here is the abstract: This paper contributes to understanding the role of executive compensation...
Goodman on Spectrum Auctions
Posted on June 03, 2009Ellen P. Goodman (Rutgers University - Law School) has posted Spectrum Auctions and the Public Interest (Journal of Telecommunications and High Technology Law, Vol. 7, 2009) on SSRN. Here is the abstract: Last year, the Federal Communications Commission held its...
Torrance & Tomlinson on Patents & Innovation
Posted on June 03, 2009Andrew W. Torrance and Bill Tomlinson (University of Kansas - School of Law and University of California, Irvine) have posted Patents and the Regress of Useful Arts (Columbia Science and Technology Law Review, Vol. 10, 2009) on SSRN. Here is...
Stein on Nussbaum on Human Capabilities & Equality
Posted on June 03, 2009Mark S. Stein (Harvard Law School, Petrie-Flom Center) has posted Nussbaum: A Utilitarian Critique (Boston College Law Review, Vol. 50, No. 2, pp. 489-531, 2009) on SSRN. Here is the abstract: In this essay, I offer a utilitarian perspective on...
Paulsen on International Law & the Constitution
Posted on June 03, 2009Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Constitutional Power to Interpret International Law (Yale Law Journal, 2009) on SSRN. Here is the abstract: What is the force of international law as a matter of...
Hasen on Amar on Bush v. Gore
Posted on June 03, 2009Richard L. Hasen (Loyola Law School - Los Angeles) has posted Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar on SSRN. Here is the abstract: This brief essay responds to Professor Akhil Amar's Dunwoody Lecture at...
Edgar on the High-Low Policy Distinction in Austrailian Administratie Law
Posted on June 03, 2009Andrew Edgar (Faculty of Law University of Sydney) has posted Tribunals and Administrative Policies: Does the High or Low Policy Distinction Help? (Australian Journal of Administrative Law, Vol. 16, pp. 143-156, 2009) on SSRN. Here is the abstract: The Australian...
Vitarelli on the Constitutional Avoidance Canon
Posted on June 03, 2009Anthony Vitarelli (Yale University - Law School) has posted Constitutional Avoidance Step Zero (Yale Law Journal, Vol. 119, 2009) on SSRN. Here is the abstract: When construing ambiguous statutes, judges prefer interpretations that do not require the determination of a...
Cupp on Animal Rights
Posted on June 02, 2009Richard L. Cupp Jr. (Pepperdine University School of Law) has posted Moving Beyond Animal Rights: A Legal/Contractualist Critique (San Diego Law Review, Vol. 46, 2009) on SSRN. Here is the abstract: Since important legal victories against racial discrimination and other...
Kwall on Human Dignity, Freedom of Speech, and the Right of Publicity
Posted on June 02, 2009Roberta Rosenthal Kwall (DePaul University - College of Law) has posted A Perspective on Human Dignity, the First Amendment and the Right of Publicity (Boston College Law Review, Vol. 51, 2010) on SSRN. Here is the abstract: The right of...
Avi-Yonah on a Federal VAT
Posted on June 02, 2009Reuven S. Avi-Yonah (University of Michigan - Law School) has posted Structuring a US Federal VAT on SSRN. Here is the abstract: On 18 and 19 February 2009, the American Tax Policy Institute (ATPI) sponsored a conference in Washington, DC,...
Smits on Normative Legal Theory
Posted on June 02, 2009Jan M. Smits (Tilburg University - Tilburg Institute of Comparative and Transnational Law (TICOM)) has posted Redefining Normative Legal Science: Towards an Argumentative Discipline (METHODS OF HUMAN RIGHTS RESEARCH, F. Coomans, F. Grünfeld, M. Kamminga, eds...
Ribstein on Partnership Governance of Large Firms
Posted on June 02, 2009Larry E. Ribstein (University of Illinois College of Law) has posted Partnership Governance of Large Firms (University of Chicago Law Review, Vol. 76, p. 289, 2009) on SSRN. Here is the abstract: This Article examines private-equity firms as an example...
Poscher on Alexy on the Principle Theory
Posted on June 02, 2009Ralf Poscher (Ruhr-Universität Bochum, Germany) has posted The Principle Theory: How Many Theories and What is Their Merit? (INSTITUTIONALIZING REASON. PERSPECTIVES ON THE LEGAL PHILOSOPHY OF ROBERT ALEXY, M. Klatt, ed., New York: Oxford University Press, Forthcoming) on SSRN...
Thomas on Frivolous Cases
Posted on June 02, 2009Suja A. Thomas (University of Illinois College of Law) has posted Frivolous Cases (DePaul Law Review, Forthcoming) on SSRN. Here is the abstract: The problem of "frivolous cases" is invoked in a variety of contexts. Although the term is used...
Allen on the Umpire Analogy
Posted on June 01, 2009Michael Patrick Allen (Stetson University - College of Law) has posted A Limited Defense of (at Least Some of) the Umpire Analogy (Seattle University Law Review, Vol. 32, 2009) on SSRN. Here is the abstract: This Essay is part of...
Orgad on Culture & Citizenship
Posted on June 01, 2009Liav Orgad (Interdisciplinary Center Herzliyah) has posted Illiberal Liberalism: Cultural Restrictions on Migration and Access to Citizenship in Europe (American Journal of Comparative Law, Vol. 58, No. 1, 2009) on SSRN. Here is the abstract: This article addresses a simple...
Feldman & Perez on Legal Norms, Moral Perceptions, and Civic Enforcement
Posted on June 01, 2009Yuval Feldman and Oren Perez (Bar-Ilan University - Faculty of Law and Bar-Ilan University - Faculty of Law) have posted How Law Changes the Environmental Mind: An Experimental Study of the Effect of Legal Norms on Moral Perceptions and Civic...