VOLUME 160, ISSUE 7 JUNE 2012
Governance Property
Is property a black box? Is it best understood in terms of the relationship between owners and nonowners, without regard to the internal dynamics of property stakeholders? Exclusion theorists of property think that the concept of property properly concerns only the… Expand
Quasi-Property: Like, But Not Quite Property
Quasi-property interests refer to situations in which the law seeks to simulate the idea of exclusion, normally associated with property rights, through a relational liability regime, by focusing on the nature and circumstances of the interaction in question, which is… Expand
The Case for Imperfect Enforcement of Property Rights
There is nothing so uncontestable as the incentive of an owner to safeguard her belongings. Yet property law contains various rules and doctrines that force owners to adopt measures to protect their assets. For instance, a number of regulations and administrative procedures… Expand
Lumpy Property
A bridge stretching only three-quarters of the distance across a chasm is useless, while a bridge that is longer than necessary does no more good than one that just spans the gap. This standard, intuitive example of a lumpy, indivisible, or �step� good makes regular… Expand
Managing the Urban Commons
Over the past several decades, discussions about the appropriate tools of commons management have played out in a particularly illuminating way in policy debates about the management of urban public spaces. Urban public spaces are not a pure commons per se, as they have… Expand
Governing Through Owners: How and Why Formal Private Property Rights Enhance State Power
In recent years, many Western governments and organizations have pressed developing nations to build robust private property institutions and have made large sums available for such property-related projects. One of the central justifications that policymakers and theorists… Expand
The Property Strategy
My objective in this Article is to offer a description of property as an institution for organizing the use of resources in society. There are several strategies for deciding how valued things will be used, and by whom. �Might makes right� is one approach: we can let a… Expand
On the Economy of Concepts In Property
Concepts help economize on information. Conventional wisdom correctly associates conceptualism with formalism but misunderstands the role concepts play in law. Commentators from the Legal Realists onward have paid insufficient attention to the distinction between concepts… Expand
Strict Liability and Negligence in Property Theory
Property theorists typically conceptualize property as a strict liability regime. Blackstone characterized property as �that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other… Expand
Absolute Preferences and Relative Preferences in Property Law
The dominant form of legal discourse in contemporary America is welfarist. Though there are important alternatives, welfarism also largely prevails in property theory: most property scholars presume that maximizing social welfare is the primary goal of a property system and… Expand
Beyond Coase: Emerging Technologies and Property Theory
In 1959, Ronald Coase published his landmark paper on the Federal Communications Commission (FCC) that would forever change the study of property rights. The primary focus of Coase�s article was to critique the FCC�s then-current approach to allocating spectrum, in which…
VOLUME 160, ISSUE 6 MAY 2012
Sentencing Guidelines at the Crossroads of Politics and Expertise
When Minnesota created the first sentencing commission in 1978 and the first sentencing guidelines in 1980, it was hard to predict where the guidelines movement would go. More than three decades and twenty sentencing guideline regimes later, it is still not easy to foresee… Expand
Booker Rules
In United States v. Booker, the Supreme Court excised two provisions of the Sentencing Reform Act of 1984 (SRA) that had made the Sentencing Guidelines binding on sentencing judges: 18 U.S.C. � 3553(b), the provision that had confined departures to specified, limited… Expand
Proportionality and Parole
The New Civil Death: Rethinking Punishment in the Era of Mass Conviction
Borrowing from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law�s protection. Civil death as an institution… Expand
Why Proportionality Matters
The Supreme Court decided recently in Graham v. Florida that the Eighth Amendment prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor. In its decision, the Court stated that �[t]he concept of proportionality is central to the… Expand
Sentencing: A Role for Empathy
Is empathy an important trait for a judge? Is there a role for empathy in the law? What about the related concept of emotion? Is it correct that �[a] good judge should feel no emotions� and that �the ideal judge is divested �of all fear[], anger, hatred, love, and… Expand
On Competence, Legitimacy, and Proportionality
I asked Justice Aharon Barak, then president of the Israeli Supreme Court, why he considered himself competent to decide where the wall between Israel and the Palestinian territories should be located and further, why it was legitimate for him, a judge, to do so. The…
VOLUME 160, ISSUE 5 APRIL 2012
Searching Secrets
A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain… Expand
Adaptable Due Process
The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridgeadopted what appears to be a dynamic, fact-intensive approach to determining the… Expand
Redistricting and the Territorial Community
As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional�but it has also rejected every standard suggested to date for distinguishing lawful from unlawful… Expand
Toward a Constitutional Chevron: Lessons from Rapanos
In 2006, the Supreme Court started a revolution in environmental law.� In Rapanos v. United States, while addressing jurisdiction over wetlands under the Clean Water Act, the Court purported to clarify an issue of statutory interpretation. In reality, the Court had… Expand
Construing Crane: Examining How State Courts Have Applied its Lack-of-Control Standard
The Supreme Court recently upheld the constitutionality of a federal statute that authorizes the Department of Justice to civilly commit federal prisoners after their release if they suffer from a mental illness or abnormality that causes �serious difficulty in refraining…
VOLUME 160, ISSUE 4 APRIL 2012
Triaging Appointed-Counsel Funding and Pro Se Access to Justice
If appointing some lawyers is good, then appointing more lawyers must be better. At least that seems to be the logic of the civil Gideon movement, which favors appointing counsel in civil cases just as Gideon v. Wainwright required appointing counsel in criminal cases. The… Expand
Codifying Custom
Codifying decentralized forms of law, such as the common law and customary international law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification�s purported virtues, including systematizing,… Expand
Getting More By Asking Less: Justifying and Reforming Tax Law’s Offer-In- Compromise Procedure
The Offer in Compromise (OIC) is a procedure by which the IRS may agree to forgive a portion of the tax liabilities of certain taxpayers. This Article suggests a framework for evaluating the effectiveness of any proposed reforms to this pro- cedure. It presents three… Expand
To Copy or Not to Copy, That Is the Question: The Game Theory Approach to Protecting Fashion Designs
Fashion designers in the United States, unlike those in many for- eign jurisdictions, enjoy only limited intellectual property protection for their creative endeavors. The American patent, copyright, and trademark systems each present obstacles to obtaining protection for… Expand
Scaling the Wall and Running the Mile: The Role of Physical-Selection Procedures in the Disparate Impact Narrative
Since the Supreme Court�s landmark decision in Dothard v. Rawlinson in 1977, gender-based disparate impact litigation has been limited in scope, but there remains room for growth. This Comment focuses on one particularly successful subset of gender-based disparate impact… Expand
When 10 Trials Are Better than 1000: An Evidentiary Perspective on Trial Sampling
In many mass tort cases, individual trials are simply impractical. Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment discrimination suit that the Supreme Court reviewed last Term. With over 1.5 million women potentially involved in the litigation,…
VOLUME 160, ISSUE 3 FEBRUARY 2012
Pills and Partisans: Understanding Takeover Defenses
Corporate takeover defenses have long been a focal point of academic and popular attention. However, no consensus exists on such fundamental questions as why different corporations adopt varying levels of defenses and whether defenses benefit or harm target corporations�… Expand
Congress’s Constitution
Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers… Expand
Prison Vouchers
School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons—what if convicted criminals could choose their prison… Expand
Chevron Corp. v. Berlinger and the Future of the Journalists’ Privilege for Documentary Filmmakers
The documentary film Crude, directed by award-winning filmmaker Joseph Berlinger, tells the story of a class action lawsuit brought by thousands of Ecuadorians against the oil company Chevron, alleging that the company’s systematic contamination of a portion of the… Expand
Allocating the Costs of Harm to Whom They Are Due: Modifying the Collateral Source Rule after Health Care Reform
For decades, the collateral source rule has been a target of tort reform on both state and national levels.1 The rule, which at common law prohibits the introduction of evidence regarding collateral payments received by the claimant in a suit for damages, has sparked a…
VOLUME 160, ISSUE 2 JANUARY 2012
Facebook, Twitter, and the Uncertain Future of Present Sense Impressions
The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for �present sense impressions.� Changing… Expand
Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes
This Article develops a fresh account of the meaning and constitutional function of the Voting Rights Act�s core provision of nationwide application, Section 2, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly… Expand
Freedom for the Press as an Industry, or For the Press as a Technology? From the Framing to Today
�[T]he freedom . . . of the press� specially protects the press as an industry, which is to say newspapers, television stations, and the like�so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, and Douglas.… Expand
All Alone in Arbitration: AT&T; Mobility v. Concepcionand the Substantive Impact of Class Action Waivers
Navigating a Legal Dilemma: A Student’s Right To Legal Counsel In Disciplinary Hearings for Criminal Misbehavior
In recent years, school violence has repeatedly shocked the immediately affected communities and the entire country. While the shootings at Columbine High School and Virginia Tech represent the tragic extreme of school violence, increasing numbers of other criminal…
VOLUME 160, ISSUE 1 DECEMBER 2011
Constraining Certiorari Using Administrative Law Principles
The U.S. Supreme Court�thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988�currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court… Expand
The Political Economy of Fraud on the Market
The fraud-on-the-market class action no longer enjoys much academic support. The justifications traditionally advanced by its defenders�compensation for out-of-pocket loss and deterrence of fraud�are thought to have failed due to the action�s real world dependence on… Expand
The Jurisprudence of Dignity
Few words play a more central role in modern constitutional law without appearing in the Constitution than �dignity.� The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and… Expand
Subsidizing Fat: How the 2012 Farm Bill Can Address America’s Obesity Epidemic
On a bus in West Philadelphia, a woman feeds her baby an artificial orange beverage from his bottle. The drink costs much less than baby formula, partly because it is mostly comprised of corn the largest beneficiary of U.S. agricultural subsidies. Currently the least… Expand
Exempt Executives? Dollar General Store Managers’ Embattled Quest for Overtime Pay Under the Fair Labor Standards Act
Beginning in the early 1980s, and continuing for nearly three decades, federal circuit courts unanimously found retail store managers exempt from overtime pay under the Fair Labor Standards Act of 1938 (FLSA). The overwhelming consensus even within the Department of…