VOLUME 163, ISSUE 7 JUNE 2015

ARTICLES

The Constraint of Legal Doctrine

SHYAMKRISHNA BALGANESH

As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to

Equity’s Unstated Domain: The Role of Equity in Shaping Copyright Law

SHYAMKRISHNA BALGANESH & GIDEON PARCHOMOVSKY

As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth

Doctrinal Categories, Legal Realism, and the Rule of Law

HANOCH DAGAN

The claim in vogue is that Legal Realism stands for “the insignificance of doctrine” and its conceptualization as a “mere appearance[].” In particular, commentators associate Realism with a “nominalist impulse” that minimizes the significance of doctrinal categories.

Realism and Revolution in Conflict of Laws: In With a Bang and Out With a Whimper

CELIA WASSERSTEIN FASSBERG

Conflict of laws scholarship in the United States in the middle half of the twentieth century produced what is commonly referred to as a “revolution.” Quite apart from its revolutionary content, this scholarship is extraordinary in three principal ways. First, it is

Nine Takes on Indeterminacy, With Special Emphasis on the Criminal Law

LEO KATZ

The claim that legal disputes have no determinate answer is an old one. The worry is one that assails every first‐year law student at some point. Having learned to argue both sides of every case, the feeling seems inevitable.

But to assess the “skeptical thesis,” which is

Legal Realism and Legal Doctrine

BRIAN LEITER

The American Legal Realists did not reject doctrine, because they did not reject the idea that judges decide cases in accordance with normative standards of some kind: “doctrine,” after all, is just a normative standard about what should be done, and not necessarily one

Family Law’s Doctrines

MELISSA MURRAY

The father of the American law school, Christopher Columbus Langdell, famously conceptualized the law as akin to science. On this account, legal doctrine was a series of scientific truths that judges systematically revealed over time. Decades later, the Legal Realists took

Corporate Law Doctrine and the Legacy of American Legal Realism

EDWARD B. ROCK

In this contribution to a symposium on “Legal Realism and Legal Doctrine,” I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting

The Persistence of System in Property Law

HENRY E. SMITH

According to conventional wisdom, property has disintegrated. Property law has undergone many changes since the heyday of Legal Realism, and many of these changes were both inspired by Realism and went under the banner of the Realists’ “bundle‐of‐rights” conception of

The New Doctrinalism: Implications for Evidence Theory

ALEX STEIN

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case‐specificity principle

Intuitive Formalism in Contract

TESS WILKINSON-RYAN

This Article starts with the proposition that most American contracting is consumer contracting, posits that consumer contracting has particular and even peculiar doctrinal features, and concludes that these features dominate the lay understanding of contract law. Contracts

Reasonableness In and Out of Negligence Law

BENJAMIN C. ZIPURSKY

The law’s use of the terms “reasonable” and “unreasonable” are legion and notorious. Indeed, the law’s seemingly carefree attitude in throwing around these terms has often served Legal Realists and their descendants well in their effort to depict legal language as simply a

VOLUME 163, ISSUE 6 MAY 2015

ARTICLES

Regulating Against Bubbles: How Mortgage Regulation Can Keep Main Street and Wall Street Safe—from Themselves

RYAN BUBB & PRASAD KRISHNAMURTHY

 

As the Great Recession has painfully demonstrated, housing bubbles pose an enormous threat to economic stability. However, the principal mortgage market reforms in response to the latest boom and bust—the Dodd-Frank Act’s provisions on mortgage lending and securitization—

A Dose of Reality for Specialized Courts: Lessons from the VICP

NORA FREEMAN ENGSTROM

The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice

Judicial Priorities

BERT I. HUANG & TEJAS N. NARECHANIA

In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state’s appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high

COMMENTS

Dangerous Liaisons: Criminalization of “Relationship Hires” under the Foreign Corrupt Practices Act

SHINJINI CHATTERJEE

On August 17, 2013, the New York Times published a front page story on JPMorgan Chase & Co. that cast the firm at the center of an international bribery scandal and sparked a media firestorm. The article reported that the U.S. Securities and Exchange Commission (SEC)

Getting Their Due (Process): Parents and Lawyers in Special Education Due Process Hearings in Pennsylvania

KEVIN HOAGLAND-HANSON

The Individuals with Disabilities Education Act (IDEA) requires school districts to provide a free appropriate public education to all students, regardless of physical or mental disability. To that end, thousands of parents and students enter the special education due

VOLUME 163, ISSUE 5 APRIL 2015

ARTICLES

Structure and Value in the Common Law

SHYAMKRISHNA BALGANESH & GIDEON PARCHOMOVSKY

Common law concepts have fallen into disrepute among legal theorists. The rise of Legal Realism in the early twentieth century marked a turning point in legal thought and analysis. One of the defining characteristics of the movement was complete disregard, not to say

Helping Buyers Beware: The Need for Supervision of Big Retail

RORY VAN LOO

Since the 2008 financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms’ internal data outside the

Presidential Settlements

ADAM S. ZIMMERMAN

Large groups regularly turn to the White House to resolve complex disputes collectively, much like a class action. These presidential settlements go back as far as the early Republic and were particularly popular in the Progressive Era, when President Teddy Roosevelt

COMMENTS

Modernizing Class Action Cy Pres Through Democratic Inputs: A Return to Cy Pres Comme Possible

CHRIS J. CHASIN

Forty-five years ago, the ancient doctrine of “cy pres” was lifted from the pages of trust law and applied, for the first time, to the class action context. Cy pres stood for the proposition that, when the explicit purpose of a charitable trust became impossible, the court

Prohibiting Sexual Orientation Discrimination in Public Accommodations: A Common Law Approach

PAUL VINCENT COURTNEY

Although forty-five states have enacted statutes prohibiting discrimination in so-called public accommodations broadly defined as those businesses offering lodging, food, entertainment, or other services to the public” the statutes of only twenty-one states and the

VOLUME 163, ISSUE 4 MARCH 2015

ARTICLES

Judicial Comparativism and Judicial Diplomacy

DAVID S. LAW

By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the

Do You Have to Keep the Government’s Secrets? Retroactively Classified Documents, the First Amendment, and the Power to Make Secrets Out of the Public Record

JONATHAN ABEL

Now you see it. Now you don’t.

This is not a magician’s incantation. It is a description of retroactive classification, a little-known provision of U.S. national security law that allows the government to declassify a document, release it to the public, and then declare it

Behavioral International Law

TOMER BROUDE

Economic analysis and rational choice have made significant inroads into the study of international law and institutions in the last decade, relying upon standard assumptions of perfect rationality of states and decisionmakers. This approach is inadequate, both empirically

COMMENTS

Toward a Standard of Meaningful Review: Examining the Actual Protections Afforded to Prisoners in Long-Term Solitary Confinement

ELLI MARCUS

The unprecedented trend of lengthy incarceration in the United States has produced a disturbing byproduct: the use of long-term solitary confinement. The precise number of people held in solitary confinement is notoriously difficult to determine due to a lack of reliable

Recovering for the Loss of a Beloved Pet: Rethinking the Legal Classification of Companion Animals and the Requirements for Loss of Companion-ship Tort Damages

LAUREN M. SIROIS

Under U.S. law, animals are considered the property of their human companions. With this classification, individuals are granted the right to own, use, and control their animal property as they see fit. To many, though, the relationship between man and his companion animal

VOLUME 163, ISSUE 3 FEBRUARY 2015

ARTICLES

Court Competition for Patent Cases

J. JONAS ANDERSON

There are ninety-four federal district courts in the United States, but nearly half of the six thousand patent cases filed in 2013 were filed in just two of those courts: the District of Delaware and the Eastern District of Texas. In the Eastern District of Texas and the

Image Is Everything: Corporate Branding and Religious Accommodation in the Workplace

DALLAN F. FLAKE

There is growing tension in the law between an employee’s right to religious expression in the workplace and an employer’s countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers and employees faced with

Tontine Pensions

JONATHAN BARRY FORMAN & MICHAEL J. SABIN

Tontines are investment vehicles that can be used to provide retirement income. A tontine is a financial product that combines the features of an annuity and a lottery. In a simple tontine, a group of investors pool their money together to buy a portfolio of investments

COMMENTS

An Inconvenient Truth: How Forum Non Conveniens Doctrine Allows Defendants to Escape State Court Jurisdiction

BRIAN J. SPRINGER

Imagine you are a foreign citizen. You have been injured in a foreign country due to the negligence of a U.S. company and have a legitimate tort claim for millions of dollars against the company. You file suit in the state court in Missoula, Montana located at 200 W.

Proposing a Transactional Approach to Civil Forfeiture Reform

MICHAEL VAN DEN BERG

Civil forfeiture is a truly extraordinary legal doctrine so much so that those who find themselves subject to a forfeiture proceeding frequently express disbelief that such an action could exist in the United States. The Kafkaesque civil forfeiture system is ancient,

VOLUME 163, ISSUE 2 JANUARY 2015

ARTICLES

Big Data and Predictive Reasonable Suspicion

ANDREW GUTHRIE FERGUSON

The Fourth Amendment requires reasonable suspicion to stop a suspect. As a general matter, police officers develop this suspicion based on information they know or activities they observe. Suspicion is individualized to a particular person at a particular place. Most

Foreign Sovereign Immunity and Comparative Institutional Competence

ADAM S. CHILTON & CHRISTOPHER A. WHYTOCK

Policymakers and legal scholars routinely make comparative institutional competence claims, claims that one branch of government is better at performing a specified function than another, and that the more competent branch should be in charge of that function. Such claims

The Power to Privilege

MILA SOHONI

A new and startling development has recently occurred in the law of delegation: Congress has for the first time expressly delegated to an administrative agency the power to write rules of privilege. Privileges abound in federal law, but until now, they have been defined

COMMENTS

Blowing the Whistle on Consumer Financial Abuse

DAVID COOPER

The whistleblower programs that the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) created within the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) offer large monetary rewards for actionable

Choice of Law in Fraudulent Joinder Litigation

WALTER SIMONS

The grant of subject matter jurisdiction to federal courts based on diversity of citizenship has, for centuries, required complete diversity between parties to the litigation. If a case is brought in state court and complete diversity exists between the parties, the

VOLUME 163, ISSUE 1 DECEMBER 2014

ARTICLES

Old Statutes, New Problems

JODY FREEMAN & DAVID B. SPENCE

Congress is more ideologically polarized now than at any time in the modern regulatory era, which makes legislation ever harder to pass. One of the consequences of this congressional dysfunction is a reduced probability that Congress will update regulatory legislation in

The Constitutional Standing of Corporations

BRANDON L. GARRETT

Are corporations persons with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth

Dodd-Frank Orderly Liquidation Authority: Too Big for the Constitution?

THOMAS W. MERRILL & MARGARET L. MERRILL

The Dodd-Frank Act, enacted in the wake of the U.S. financial crisis of 2007 to 2009, is the federal government’s attempt to address a number of systemic issues perceived to be at the root of the financial meltdown. Title II of the Act goes to the heart of this effort by

COMMENTS

The Duryodhana Dilemma: United States v. A 10th Century Cambodian Sandstone Sculpture and a Proposed Code of Ethics-Based Response to Repatriation Requests for Auction Houses

LAUREN HENDERSON

On March 24, 2011, Sotheby’s New York unexpectedly removed its showcase lot, the Duryodhana, from its Indian & Southeast Asian auction scheduled to occur that same day. This last-minute adjustment occurred in response to a letter received hours earlier from the

Pro Se Paternalism: The Contractual, Practical, and Behavioral Cases for Automatic Reversal

JUSTIN RAND

Johnnie Cochran, Robert Shapiro, and F. Lee Bailey all became famous as criminal defense attorneys. Television dramas depicting the high-stakes world of criminal trials, focusing on charismatic lawyers winning difficult cases, continue to captivate audiences around the

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