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  Subjects -> LAW (Total: 1467 journals)
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LAW (877 journals)                  1 2 3 4 5 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
(En)clave Comahue. Revista Patagónica de Estudios Sociales     Open Access  
ABA Journal Magazine     Full-text available via subscription   (Followers: 24)
Acta Juridica     Full-text available via subscription   (Followers: 7)
Acta Politica     Hybrid Journal   (Followers: 19)
Acta Universitatis Danubius. Juridica     Open Access   (Followers: 1)
Acta Universitatis Lodziensis : Folia Iuridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 2)
Adelaide Law Review     Full-text available via subscription   (Followers: 24)
Administrative Law Review     Open Access   (Followers: 45)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 7)
African Journal on Conflict Resolution     Open Access   (Followers: 23)
Afrilex     Open Access   (Followers: 5)
Ahkam : Jurnal Hukum Islam     Open Access   (Followers: 1)
Ahkam : Jurnal Ilmu Syariah     Open Access   (Followers: 1)
Air and Space Law     Full-text available via subscription   (Followers: 22)
Akron Law Review     Open Access   (Followers: 5)
Al 'Adalah : Jurnal Hukum Islam     Open Access  
Al Ihkam : Jurnal Hukum & Pranata Sosial     Open Access   (Followers: 1)
Al-Ahkam     Open Access   (Followers: 1)
Al-Istinbath : Jurnal Hukum Islam     Open Access  
Alaska Law Review     Open Access   (Followers: 8)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 15)
Alternative Law Journal     Hybrid Journal   (Followers: 10)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 5)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 58)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 19)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 11)
American Journal of Legal History     Full-text available via subscription   (Followers: 10)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 11)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 6)
Amsterdam Law Forum     Open Access   (Followers: 8)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access  
Annales de droit     Open Access  
Annales de la Faculté de Droit d’Istanbul     Open Access  
Annales Universitatis Mariae Curie-Skłodowska, sectio G (Ius)     Open Access  
Annals of the Faculty of Law in Belgrade - Belgrade Law Review     Open Access  
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbeidsrett     Full-text available via subscription  
Arbitration Law Monthly     Full-text available via subscription   (Followers: 4)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 14)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 6)
Arizona State Law Journal     Free   (Followers: 3)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 4)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 3)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 12)
ASAS : Jurnal Hukum dan Ekonomi Islam     Open Access   (Followers: 1)
ASEAN Journal of Legal Studies     Open Access  
Asia-Pacific Journal of Ocean Law and Policy     Hybrid Journal  
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Law and Society     Hybrid Journal   (Followers: 7)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 4)
Asian Pacific American Law Journal     Open Access   (Followers: 3)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access   (Followers: 1)
Atti della Accademia Peloritana dei Pericolanti - Classe di Scienze Giuridiche, Economiche e Politiche     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 7)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 10)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 13)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 21)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 15)
Ave Maria Law Review     Free   (Followers: 4)
Badamai Law Journal     Open Access   (Followers: 2)
Baltic Journal of Law & Politics     Open Access   (Followers: 6)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 8)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 28)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 14)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Boletín de la Asociación Internacional de Derecho Cooperativo     Open Access  
Boletín Instituto de Derecho Ambiental y de los Recursos Naturales     Open Access  
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 7)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 11)
Boston College Law Review     Open Access   (Followers: 16)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access   (Followers: 1)
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 7)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 4)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
Bulletin of Yaroslav Mudryi NLU : Series : Philosophy, philosophy of law, political science, sociology     Open Access  
Business and Human Rights Journal     Full-text available via subscription   (Followers: 4)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos de Informação Jurídica     Open Access  
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cahiers Droit, Sciences & Technologies     Open Access   (Followers: 1)
California Law Review     Open Access   (Followers: 21)
California Western Law Review     Open Access   (Followers: 4)
Cambridge Law Journal     Hybrid Journal   (Followers: 199)
Cambridge Yearbook of European Legal Studies     Full-text available via subscription  
Campbell Law Review     Open Access   (Followers: 4)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Canadian Journal of Law & Jurisprudence     Full-text available via subscription   (Followers: 11)
Canadian Journal of Law and Society     Hybrid Journal   (Followers: 20)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 9)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 18)
China-EU Law Journal     Hybrid Journal   (Followers: 5)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 5)
Chinese Journal of Environmental Law     Hybrid Journal  
Chinese Law & Government     Full-text available via subscription   (Followers: 9)
Chulalongkorn Law Journal     Open Access  
Cleveland State Law Review     Free   (Followers: 2)
Clínica Jurídica per la Justícia Social : Informes     Open Access  
CMU Journal of Law and Social Sciences     Open Access   (Followers: 1)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 11)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 16)
Columbia Law Review (Sidebar)     Open Access   (Followers: 20)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 41)
Comparative Legal History     Full-text available via subscription   (Followers: 8)
Comparative Legilinguistics     Open Access   (Followers: 1)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 44)
Conflict Trends     Full-text available via subscription   (Followers: 13)
Cornell Law Review     Open Access   (Followers: 13)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 6)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 29)
Danube     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 15)
Debater a Europa     Open Access  
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 6)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 5)
DePaul Law Review     Open Access   (Followers: 3)
Derecho Animal. Forum of Animal Law Studies     Open Access   (Followers: 1)
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     Open Access  
Deusto Journal of Human Rights     Open Access  
Dicle Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Dikê : Revista de Investigación en Derecho, Criminología y Consultoría Jurídica     Open Access   (Followers: 1)
Diké : Revista Jurídica     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Doxa : Cuadernos de Filosofía del Derecho     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription   (Followers: 3)
Duke Environmental Law & Policy Forum     Open Access   (Followers: 5)
Duke Forum for Law & Social Change     Open Access   (Followers: 5)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 21)
Duke Law & Technology Review     Open Access   (Followers: 11)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 2)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Economics and Law     Open Access   (Followers: 1)
Edinburgh Law Review     Hybrid Journal   (Followers: 19)
Education and the Law     Hybrid Journal   (Followers: 14)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 21)
Energy Law Journal     Full-text available via subscription   (Followers: 5)
Environmental Justice     Hybrid Journal   (Followers: 10)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 14)
ERA-Forum     Hybrid Journal   (Followers: 5)
Erasmus Law Review     Open Access  
Erciyes Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 3)
Ethnopolitics     Hybrid Journal   (Followers: 3)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
EU Agrarian Law     Open Access   (Followers: 4)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 13)

        1 2 3 4 5 | Last

Similar Journals
Journal Cover
California Law Review
Journal Prestige (SJR): 1.725
Citation Impact (citeScore): 1
Number of Followers: 21  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0008-1221
Published by U of California, Berkeley Homepage  [4 journals]
  • Applying the SEC Custody Rule to Cryptocurrency Hedge Fund Managers

    • Authors: Drew C. Schaefer
      PubDate: Mon, 07 Oct 2019 18:28:23 PDT
       
  • Pump the Brakes: What Financial Regulators Should Consider in Trying to
           Prevent a Subprime Auto Loan Bubble

    • Authors: Andrew Schmidt
      Abstract: The possibility of a subprime auto finance bubble gives financial regulators an opportunity to navigate a burgeoning crisis in real time. Lessons learned from the 2008 financial crisis and the implementation of the Dodd-Frank Act prompt the question whether financial regulators should adopt an ability-to-repay rule for auto lending similar to the Consumer Financial Protection Bureau’s Mortgage Ability-to-Repay Rule. In determining whether to adopt a rule, financial regulators should consider how, if at all, enforcement and adjudication could help stabilize the increasingly risky auto finance market. For both enforcement and rulemaking, the role of private attorneys general could prove critical to deterring abusive lending and cooling off a dangerously permissive market.However, crucial differences between houses and cars as both financial assets and consumer goods demand that regulators proceed with caution. Limiting access to automobile credit could have more disastrous and far-reaching consequences for household incomes and access to public services than limiting access to mortgages. The substitutability of mortgages and rent payments has no good analogue in automobile finance. Furthermore, the ease of vehicle repossession presents both a need for regulation and a risk for regulators: the more efficient repossession standards are, the more likely a subprime “bubble” will burst at an earlier stage in its development, which reduces systemic risk. Financial regulators should bring these asset distinctions to the fore when crafting a response to the current auto market’s widespread subprime lending and alarming default rates. Regulators can and should more aggressively enforce existing consumer protection standards, such as prohibitions against unfair, deceptive, and abusive practices, to reduce the risk of predatory auto lending which ignores consumers’ ability to repay.
      PubDate: Mon, 07 Oct 2019 18:28:15 PDT
       
  • Wage Theft in Lawless Courts

    • Authors: Llezlie L. Green
      Abstract: Low-wage workers experience wage theft—that is, employers’ failure to pay earned wages—at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt collection cases in which the individual denied justice is the defendant, not the plaintiff.This article fills a significant gap in the literature by considering the experiences of individual low-wage workers who pursue their claims in the lower courts. In doing so, it identifies the difference between the law as written and the law as experienced by low-wage workers seeking to vindicate their substantive legal rights. After considering the challenges to adjudicating wage and hour cases in small claims courts, it argues that procedural informality and frequent absence of critical inquiry into the substantive legal issues create significant hurdles to low-wage workers’ ability to prevail on their claims. Indeed, despite the various protections provided by both federal and state wage and hour laws, courts adjudicating these claims often apply a breach of contract analysis that disadvantages vulnerable workers. This return to what I term a pre-New Deal, Lochnerian approach to wage and hour disputes runs afoul of Congress and state governments’ efforts to regulate the workplace and, particularly, to protect vulnerable low-wage workers.This article argues that the challenge of injecting legal standards into small claims court requires the creative use of narrative and case theory to prevail in wage and hour claims. It also considers potential procedural changes, such as the introduction of specific pleadings and forms for wage and hour claims and state court judge trainings that would better enable pro se parties to assert their federal and state substantive wage and hour rights in small claims courts.
      PubDate: Mon, 07 Oct 2019 18:28:07 PDT
       
  • Americans, Almost and Forgotten

    • Authors: Tom C. W. Lin
      Abstract: There are millions of Americans who are systematically forgotten and mistreated by our government. They have been described by the Supreme Court as “alien races” and “utterly unfit for American citizenship,” but they continue to fight and die defending our Constitution. They survive catastrophic storms, but do not receive the assistance that is freely given to other Americans. They are subject to federal laws and regulations, but have no meaningful voice or vote in Washington. They are the millions of Americans in Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands—the unincorporated territories of the United States.This Article is about these forgotten Americans, their longstanding political plight, and the pragmatic legal policies that could improve their lives and make them fully and equally American. It begins by providing a brief overview of each territory. Next, it investigates the plight of the territories, focusing on how interconnected factors relating to political powerlessness, economic dependence, military presence, and geographic isolation have created heavy burdens for people in the territories. Moving from problems to solutions, this Article examines past efforts to aid the territories. In particular, it analyzes past pursuits of litigation, statehood, and independence. It explains why these prior paths did not lead to progress, and discloses critical obstacles that continue to obstruct these routes. Finally, this Article proposes three workable ways for the federal government to assist the territories in the near term. Specifically, it argues that the territories and their supporters should focus on working with the federal government to obtain: (1) an extended temporary waiver of the costly maritime law known as the Jones Act, (2) most-favored state status in federal veterans and disaster relief appropriations, and (3) special economic empowerment zone designations. Ultimately, this Article aspires to offer a new, workable roadmap for policymakers to think and act with greater urgency about the forgotten Americans of our territories.
      PubDate: Mon, 07 Oct 2019 18:27:59 PDT
       
  • The New Food Safety

    • Authors: Emily M. Broad Leib et al.
      Abstract: A safe food supply is essential for a healthy society. Our food system is replete with different types of risk, yet food safety is often narrowly understood as encompassing only foodborne illness and other risks related directly to food ingestion. This Article argues for a more comprehensive definition of food safety, one that includes not just acute, ingestion-related risks, but also whole-diet cumulative ingestion risks, and cradle-to-grave risks of food production and disposal. This broader definition, which we call “Food System Safety,” draws under the header of food safety a variety of historically siloed, and under-regulated, food system issues including nutrition, environmental protection, and workplace safety. The current narrow approach to food safety is inadequate. First, it contributes to irrational resource allocation among food system risks. Second, it has collateral consequences for other food system risks, and, third, its limited focus can undermine efforts to achieve narrow food safety. A comprehensive understanding of food safety illuminates the complex interactions between narrow food safety and other areas of food system health risks. We argue that such an understanding could facilitate improved allocation of resources and assessment of tradeoffs, and ultimately support better health and safety outcomes for more people. We offer a variety of structural and institutional mechanisms for embedding this approach into federal agency action.
      PubDate: Mon, 07 Oct 2019 18:27:51 PDT
       
  • Is There a First-Drafter Advantage in M&A'

    • Authors: Adam B. Badawi et al.
      Abstract: Does the party that provides the first draft of a merger agreement get better terms as a result' There is considerable lore among transactional lawyers on this question, yet it has never been examined empirically. In this Article, we develop a novel dataset of drafting practices in large M&A transactions involving US public-company targets. First, we find that acquirers and sellers prepare the first draft of the merger agreement with roughly equal frequency, contrary to the conventional wisdom that acquirers virtually always draft first. Second, we find that providing the first draft offers little or no advantage with regard to the most monetizable merger agreement terms, such as merger breakup fees. Third, and notwithstanding, we do find an association between drafting first and attaining a more favorable outcome for terms that are harder to monetize, that are more complex, and that tend to be negotiated exclusively by counsel, such as the material adverse change (MAC) clause. These findings are consistent with the view that the negotiation process generates frictions and agency costs, which can affect the final deal terms and result in a limited first-drafter advantage.
      PubDate: Mon, 07 Oct 2019 18:27:43 PDT
       
  • The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence be
           Admissible in European Courts'

    • Authors: Natalia Krapiva
      Abstract: This Note explores potential admissibility challenges that may arise when European courts use evidence of Syrian crimes collected by the newly-established International, Impartial and Independent Mechanism for Syria (“the IIIM”). The Note examines the evidentiary rules of four European countries—France, Germany, the Netherlands, and Sweden––where Syrian cases are currently being investigated or prosecuted. Specifically, it focuses on evidence that was improperly or illegally obtained, including evidence procured by private actors. This Note also looks at the European Convention on Human Rights (“ECHR”) Article 8 and relevant case law from the European Court of Human Rights concerning illegal searches and seizures. Finally, this Note highlights the importance of avoiding admissibility issues that may arise as a result of the IIIM’s close cooperation with both private groups who gather the evidence on the ground and the European authorities that will ultimately be using such evidence in court.
      PubDate: Wed, 17 Jul 2019 06:51:42 PDT
       
  • Regulating the “Most Accessible Marketplace of Ideas in History”:
           Disclosure Requirements in Online Political Advertisements After the 2016
           Election

    • Authors: Brian Beyersdorf
      Abstract: The libertarian regulatory environment of online political advertising has come under scrutiny again, as news reports continue to come out describing the extent of Russian interference with the 2016 presidential election. For years, Silicon Valley has resisted Washington, D.C.’s efforts to regulate online political advertising. Tech companies feared regulation would threaten not only their business models, but also the Internet’s status as the “most accessible marketplace of ideas in history.”1 But can America’s democracy continue to tolerate lax regulation of online political advertising' Overwhelming evidence of Russian operatives spreading divisive messages across online platforms during the 2016 residential election demands a government response. In fact, Congress is now debating the Honest Ads Act, and the Federal Election Commission is considering implementing regulations to increase the transparency of online political advertisements. With the specter of regulation, Facebook, Google, and Twitter have updated their policies governing online political advertising.This Note argues that Congress should pass the Honest Ads Act, which requires disclosure for online political advertising and makes reasonable efforts to stop foreign interference with elections. Disclosure requirements are important because they provide information to voters, deter corruption, and facilitate enforcement of campaign laws. The Supreme Court has long upheld disclosure requirements, including in its controversial Citizens United v. Federal Election Commission decision. But disclosure requirements are likely only a partial solution. Laws and regulations may struggle to reach the trolls and bots that spread Russian disinformation during the 2016 presidential election without infringing the First Amendment. To rein in these bad actors, American democracy will have to rely on Silicon Valley to police online platforms rather than on Washington, D.C.This Note first provides an overview of the development of disclosure requirements in the Supreme Court’s jurisprudence. It then describes the libertarian regulatory environment of online political advertising and Silicon Valley’s efforts to self-regulate in the wake of the 2016 presidential election. Finally, the Note advocates for the passage of the Honest Ads Act and discusses the limits of regulating online political advertising.
      PubDate: Wed, 17 Jul 2019 06:51:34 PDT
       
  • Constitutional Remedies in Federalism’s Forgotten Shadow

    • Authors: Stephen I. Vladeck
      Abstract: “[F]ollowing our decision in Erie R. Co. v. Tompkins, 304 U.S. 64 [] (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action . . . .”[1]“When a party seeks to assert an implied cause of action under the Constitution itself . . . separation-of-powers principles are or should be central to the analysis. The question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts'”[2]“In the scheme of the Constitution, [state courts] are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones. If they were to fail, and if Congress had taken away the Supreme Court’s appellate jurisdiction and been upheld in doing so, then we really would be sunk.”[3]
      PubDate: Wed, 17 Jul 2019 06:51:26 PDT
       
  • Speaking with a Different Voice: Why the Military Trial of Civilians and
           the Enemy is Constitutional

    • Authors: Saikrishna Bangalore Prakash
      PubDate: Wed, 17 Jul 2019 06:51:18 PDT
       
  • Constructive Constitutional History and Habeas Corpus Today

    • Authors: James E. Pfander
      PubDate: Wed, 17 Jul 2019 06:51:10 PDT
       
  • Symposium Introduction

    • Authors: William A. Fletcher
      PubDate: Wed, 17 Jul 2019 06:51:03 PDT
       
  • Bidding Farewell to Constitutional Torts

    • Authors: Richard H. Fallon; Jr.
      Abstract: The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among leading scholarly critics—to see interconnected problems in a sufficiently broad frame.This Article refocuses analysis along four interconnected dimensions. First, it examines relevant constitutional history, centrally including that of the maxim “for every right, a remedy.” That maxim has exerted significant generative force, but it has also been widely misunderstood. Second, the Article reviews and critiques recent Supreme Court decisions involving constitutional tort claims, many of which reflect fallacious assumptions. Third, the Article addresses the question, What role would damages and injunctive remedies for constitutional violations play in a justly and prudently designed legal system unfettered by historical accidents and path dependence' Commentators almost invariably assume that any gap between constitutional rights and individually effective, make-whole remedies is inherently regrettable. This Article refutes that premise. Although an ideal regime would substitute entity liability for officer liability and afford broad opportunities for victims of constitutional violations to vindicate their rights, it would not always authorize recovery of money damages.Finally, the Article considers reforms that the Supreme Court could effectuate in the absence of action by Congress. Among other proposals, it calls for expansion of municipal liability in suits under 42 U.S.C. § 1983 and for reinvigoration of Bivens actions, but it defends the main outlines of qualified immunity doctrine against a spate of recent critics.
      PubDate: Wed, 17 Jul 2019 06:50:56 PDT
       
  • Citizenship, National Security Detention, and the Habeas Remedy

    • Authors: Lee Kovarsky
      PubDate: Wed, 17 Jul 2019 06:50:48 PDT
       
  • Courts and the Executive in Wartime: A Comparative Study of the American
           and British Approaches to the Internment of Citizens during World War II
           and Their Lessons for Today

    • Authors: Amanda L. Tyler
      Abstract: This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of citizens, and the manner in which British and American courts reviewed challenges brought by those detained during the war. Comparing the experiences of the two countries reveals that in both cases the courts deferred extensively to the political branches when it came to reviewing challenges to the wartime detention policies, essentially staking out roles that left them largely relegated to the sidelines of public debates over the propriety of internment policies. A comparison of the British and American experiences also reveals that, as the war continued, the two chief executives struck decidedly different positions as to the wisdom and lawfulness of detention policies directed at citizens. In the United States, Roosevelt ignored the legal advice of many of his key advisers regarding the unconstitutionality of the detention of Japanese American citizens and—again against the advice of his advisers—later delayed the closing of the internment camps until after the 1944 election. By contrast, Churchill—who operated in a different legal context that granted him greater powers than his American counterpart—came to view such policies as inconsistent with British constitutional tradition and became a crucial voice urging the termination of such detentions.The Article then attempts to understand both why the two executives charted different courses on this issue as the war unfolded and whether there are any lessons to be drawn from these events with respect to how we should think about the separation of powers during wartime today. Focusing on the British experience during the war, Churchill’s change of course suggests that the executive can and sometimes will take the lead in declaring and protecting a country’s constitutional values without prodding by the courts, even in wartime, and even in the absence of legal compulsion. But as is explored in the pages that follow, the British experience may be a particularly British story and more generally one that differed in significant ways from the American story. This, in turn, calls into question just how much the British experience during the war should inform debates over the separation of powers in American constitutional law. The American experience during the war, moreover, proves a cautionary tale. Specifically, it reveals a series of failings on the part of the executive branch to acknowledge and engage with the facts on the ground and honor long-accepted constitutional traditions in formulating wartime policies. This example therefore suggests that the executive branch is ill equipped to self-regulate on this score in times of war. These failings in turn call into question the common practice of courts to defer extensively to the executive on matters of national security and more generally implicate fundamental questions about the judicial role in a constitutional democracy.Although grounded in events that took place over seven decades ago, this study is undertaken for a very timely purpose. Once again, we live in a time in which the executive branch has argued that its decisions ostensibly predicated upon heightened concerns about national security should receive extensive, if not complete, deference from the Supreme Court. In addressing such arguments now and in the future, the Court would be wise to remember how judicial deference to executive branch assertions on matters of national security played out during World War II.
      PubDate: Wed, 17 Jul 2019 06:50:40 PDT
       
  • Dicey’s Nightmare: An Essay on The Rule of Law

    • Authors: James E. Pfander
      Abstract: The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Article builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Article compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today.This Article focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Article examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.
      PubDate: Wed, 17 Jul 2019 06:50:32 PDT
       
  • SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus

    • Authors: Jonathan P. Feingold
      Abstract: In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action”—that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what it is. This misperception invites an unnecessary and misplaced referendum on race-conscious admissions at Harvard and beyond.
      PubDate: Tue, 21 May 2019 22:44:32 PDT
       
  • “A Profoundly Masculine Act”: Mass Shootings, Violence Against Women,
           and the Amendment That Could Forge a Path Forward

    • Authors: Yasmine Issa
      Abstract: There is a disturbing connection between mass shootings and violence against women. This connection is one which the Lautenberg Amendment to the Gun Control Act, which prohibits any person convicted of a misdemeanor crime of domestic violence from possessing guns, seeks to disrupt. This Note argues that the Lautenberg Amendment, while an invaluable tool in the fight against mass shootings, does not go far enough. Gender-based crimes other than domestic violence, specifically stalking and sexual assault, are also indicative of a potential for future mass violence. Thus, the Lautenberg Amendment should be expanded to apply to those convicted of misdemeanor crimes of stalking and sexual assault. Part I presents an overview of studies conducted on mass shootings and domestic violence, as well as case studies of instances in which mass shootings, stalking, and sexual assault converged. Part II examines the connection between mass shootings and violence against women by employing a hegemonic masculinity perspective. Part III makes the case for expanding the Lautenberg Amendment to apply to those convicted of misdemeanor crimes of stalking and sexual assault. Part IV looks to initiatives launched in Mexico and the United States as examples of how non-legal actors could go about targeting a root cause of mass shootings: the narrow and dangerous conception of what it is to “be a man” in the United States.
      PubDate: Tue, 21 May 2019 22:44:25 PDT
       
  • Trade and the Separation of Powers

    • Authors: Ganesh Sitaraman et al.
      Abstract: There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic economics paradigm dominated in the nineteenth century, and the foreign affairs paradigm from the mid-twentieth century.Since the end of the Cold War, however, trade law and policy have become increasingly divisive and contentious. Trade law and policy entered a new era of liberalization, characterized by international organizations (like the WTO) and a shift to mini-lateral free trade agreements. By 2016, backlash was in full force, with candidates Donald Trump, Bernie Sanders, and Hillary Clinton all coming out against the Trans-Pacific Partnership (TPP). Since taking office, President Trump has instituted high tariffs on solar panels, threatened to withdraw from NAFTA, and sparked concern about a trade war with China.This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. We provide a thorough descriptive account of the two paradigms for trade within our constitutional system and show that trade has migrated from a domestic to a foreign affairs matter—and ultimately that it has become unhooked even from specific foreign affairs objectives. As trade drifted further away from the balance struck by our separation of powers and became increasingly rooted in the presidency, agreements liberalizing trade rules became more viable—but at the cost of the political sustainability that comes with greater congressional involvement.Second, we make a normative case for rebalancing trade within the constitutional structure. We argue that trade shares few similarities with other foreign affairs and national security areas in which the President is seen to have a functional advantage, and, perhaps surprisingly given the conventional wisdom, that the parochial interests of Congress present strong benefits to trade policymaking that are widely undervalued.Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast-track authority in negotiating and approving trade agreements, the President’s power to declare trade wars, the scope of the President’s authority to withdraw from trade agreements, the use of unorthodox international agreements in the commercial context, and the increasing conflict between trade agreements and state and local authority, which we term “trade federalism.”
      PubDate: Tue, 21 May 2019 22:44:17 PDT
       
  • Finding Law

    • Authors: Stephen E. Sachs
      Abstract: That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, “positive” criticism is that law has to come from somewhere: judges can’t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will.The second, “realist” criticism is that law leaves too many questions open: when judges can’t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they’re based.This Article claims only that it’s plausible for a legal system to have its judges find law. It doesn’t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can’t do otherwise. In fact, judges can do otherwise: they can act as the law’s servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.
      PubDate: Tue, 21 May 2019 22:44:09 PDT
       
 
 
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