VOLUME 163, ISSUE 7 JUNE 2015
The Constraint of Legal Doctrine
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
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
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
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
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
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
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
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
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
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
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
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
Regulating Against Bubbles: How Mortgage Regulation Can Keep Main Street and Wall Street Safe—from Themselves
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
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
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…
Dangerous Liaisons: Criminalization of “Relationship Hires” under the Foreign Corrupt Practices Act
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
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
Structure and Value in the Common Law
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
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
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…
Modernizing Class Action Cy Pres Through Democratic Inputs: A Return to Cy Pres Comme Possible
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
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
Judicial Comparativism and Judicial Diplomacy
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
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
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…
Toward a Standard of Meaningful Review: Examining the Actual Protections Afforded to Prisoners in Long-Term Solitary Confinement
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
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
Court Competition for Patent Cases
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
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
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…
An Inconvenient Truth: How Forum Non Conveniens Doctrine Allows Defendants to Escape State Court Jurisdiction
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
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
Big Data and Predictive Reasonable Suspicion
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
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
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…
Blowing the Whistle on Consumer Financial Abuse
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
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
Old Statutes, New Problems
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
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?
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…
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
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
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…