VOLUME 160, ISSUE 7 JUNE 2012

ARTICLES

Governance Property

GREGORY S. ALEXANDER

 

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

SHYAMKRISHNA BALGANESH

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

ABRAHAM BELL & GIDEON PARCHOMOVSKY

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

LEE ANNE FENNELL

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

NICOLE STELLE GARNETT

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

LARISSA KATZ

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

THOMAS W. MERRILL

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

HENRY E. SMITH

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

STEWART E. STERK

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

LIOR JACOB STRAHILEVITZ

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

CHRISTOPHER S. YOO

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

ARTICLES

Sentencing Guidelines at the Crossroads of Politics and Expertise

RACHEL E. BARKOW

 

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

AMY BARON-EVANS & KATE STITH

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

RICHARD A. BIERSCHBACH
Commentators analyzing the Supreme Court�s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole…  Expand

The New Civil Death: Rethinking Punishment in the Era of Mass Conviction

GABRIEL J. CHIN

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

YOUNGJAE LEE

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


ESSAYS

Sentencing: A Role for Empathy

DENNY CHIN

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

NANCY GERTNER

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

ARTICLES

Searching Secrets

NITA A. FARAHANY

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

JASON PARKIN

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

NICHOLAS O. STEPHANOPOULOS

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

COMMENTS

Toward a Constitutional Chevron: Lessons from Rapanos

CORY RUTH BRADER

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

JANINE PIERSON

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

ARTICLES

Triaging Appointed-Counsel Funding and Pro Se Access to Justice

BENJAMIN H. BARTON & STEPHANOS BIBAS

 

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

TIMOTHY MEYER

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

SHU-YI OEI

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

 

COMMENTS

To Copy or Not to Copy, That Is the Question: The Game Theory Approach to Protecting Fashion Designs

TEDMOND WONG

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

YIYANG WU

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

 

ESSAYS

When 10 Trials Are Better than 1000: An Evidentiary Perspective on Trial Sampling

EDWARD K. CHENG

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

ARTICLES

Pills and Partisans: Understanding Takeover Defenses

JORDAN M. BARRY & JOHN WILLIAM HATFIELD

 

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

JOSH CHAFETZ

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

ALEXANDER VOLOKH

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

 

COMMENTS

Chevron Corp. v. Berlinger and the Future of the Journalists’ Privilege for Documentary Filmmakers

TOM ISLER

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

REBECCA LEVENSON

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

ARTICLES

Facebook, Twitter, and the Uncertain Future of Present Sense Impressions

JEFFREY BELLIN

 

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

CHRISTOPHER S. ELMENDORF

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

EUGENE VOLOKH

�[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

 

COMMENTS

All Alone in Arbitration:  AT&T; Mobility v. Concepcionand the Substantive Impact of Class Action Waivers

FRANK BLECHSCHMIDT
On April 27, 2011, the Supreme Court announced its decision in AT&T Mobility LLC v. Concepcion, one of the most closely watched cases of the 2010 Term. In Concepcion, the Court considered whether states may condition the enforceability of arbitration agreements on…  Expand

 

Navigating a Legal Dilemma: A Student’s Right To Legal Counsel In Disciplinary Hearings for Criminal Misbehavior

ELLEN L. MOSSMAN

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

ARTICLES

Constraining Certiorari Using Administrative Law Principles

KATHRYN A. WATTS

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

WILLIAM W. BRATTON & MICHAEL L. WACHTER

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

LESLIE MELTZER HENRY

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

 

COMMENTS

Subsidizing Fat: How the 2012 Farm Bill Can Address America’s Obesity Epidemic

JULIE FOSTER

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

DREW FREDERICK

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

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