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LAW (700 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 19)
Acta Juridica     Full-text available via subscription   (Followers: 9)
Acta Politica     Hybrid Journal   (Followers: 13)
Acta Universitatis Danubius. Juridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 1)
Adelaide Law Review     Full-text available via subscription   (Followers: 19)
Administrative Law Review     Open Access   (Followers: 38)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 7)
African Journal of Legal Studies     Hybrid Journal   (Followers: 6)
African Journal on Conflict Resolution     Open Access   (Followers: 15)
Afrilex     Open Access   (Followers: 4)
Air and Space Law     Full-text available via subscription   (Followers: 19)
Akron Law Review     Open Access   (Followers: 3)
Alaska Law Review     Open Access   (Followers: 9)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 14)
Alternative Law Journal     Hybrid Journal   (Followers: 1)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 14)
Amazon's Research and Environmental Law     Open Access   (Followers: 2)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 53)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 15)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 12)
American Journal of Legal History     Full-text available via subscription   (Followers: 4)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 15)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 5)
Amsterdam Law Forum     Open Access   (Followers: 9)
Annales Canonici     Open Access  
Annual Survey of South African Law     Full-text available via subscription   (Followers: 5)
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  
Arbitration Law Monthly     Full-text available via subscription   (Followers: 2)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 12)
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: 3)
Arizona State Law Journal     Free   (Followers: 2)
Arkansas Law Review     Free   (Followers: 5)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 2)
Art + Law     Full-text available via subscription   (Followers: 11)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 9)
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 6)
Asian Pacific American Law Journal     Open Access   (Followers: 2)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     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: 8)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 10)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 16)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 19)
Ave Maria Law Review     Free   (Followers: 2)
Badamai Law Journal     Open Access  
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 7)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 23)
Beijing Law Review     Open Access   (Followers: 7)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 11)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Bond Law Review     Open Access   (Followers: 17)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 7)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 9)
Boston College Law Review     Open Access   (Followers: 17)
Boston University Law Review     Free   (Followers: 10)
BRICS Law Journal     Open Access  
Brigham Young University Journal of Public Law     Open Access   (Followers: 7)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 7)
British Journal of American Legal Studies     Open Access  
Brooklyn Law Review     Open Access   (Followers: 2)
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 2)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cadernos Ibero-Americanos de Direito Sanitário     Open Access  
Cahiers, Droit, Sciences et Technologies     Open Access  
California Law Review     Open Access   (Followers: 19)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 2)
Cambridge Law Journal     Hybrid Journal   (Followers: 139)
Campbell Law Review     Open Access   (Followers: 4)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Case Western Reserve Law Review     Open Access   (Followers: 1)
Časopis pro právní vědu a praxi     Open Access  
Časopis zdravotnického práva a bioetiky     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 10)
Catholic University Law Review     Open Access   (Followers: 2)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 3)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 16)
China-EU Law Journal     Hybrid Journal   (Followers: 4)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 3)
Chinese Law & Government     Full-text available via subscription   (Followers: 6)
Cleveland State Law Review     Free   (Followers: 1)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 10)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 14)
Columbia Law Review (Sidebar)     Open Access   (Followers: 14)
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: 39)
Comparative Legal History     Full-text available via subscription   (Followers: 5)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 20)
Conflict Trends     Full-text available via subscription   (Followers: 8)
Cornell Law Review     Open Access   (Followers: 7)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 2)
Cuadernos de Historia del Derecho     Open Access   (Followers: 5)
Cuestiones Juridicas     Open Access   (Followers: 1)
Current Legal Problems     Hybrid Journal   (Followers: 25)
Danube : The Journal of European Association Comenius - EACO     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription  
Deakin Law Review     Full-text available via subscription   (Followers: 14)
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 1)
Denning Law Journal     Full-text available via subscription   (Followers: 8)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 2)
DePaul Law Review     Open Access   (Followers: 1)
Der Staat     Full-text available via subscription   (Followers: 13)
Derecho PUCP     Open Access   (Followers: 3)
Derecho y Ciencias Sociales     Open Access   (Followers: 1)
Die Verwaltung     Full-text available via subscription   (Followers: 10)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Direito e Liberdade     Open Access  
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 3)
Dixi     Open Access  
Droit et Cultures     Open Access   (Followers: 6)
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  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 6)
Duke Forum for Law & Social Change     Open Access   (Followers: 7)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 15)
Duke Law & Technology Review     Open Access   (Followers: 9)
Duke Law Journal     Open Access   (Followers: 25)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 1)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 20)
Education and the Law     Hybrid Journal   (Followers: 12)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 22)
Energy Law Journal     Full-text available via subscription   (Followers: 4)
Environmental Justice     Hybrid Journal   (Followers: 10)
Environmental Law Review     Full-text available via subscription   (Followers: 23)
Environmental Policy and Law     Hybrid Journal   (Followers: 16)
ERA-Forum     Hybrid Journal   (Followers: 5)
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 4)
Ethnopolitics     Hybrid Journal   (Followers: 4)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 4)
EU agrarian Law     Open Access   (Followers: 3)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 16)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 8)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 3)
European Journal of Law and Technology     Open Access   (Followers: 15)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 5)
European Law Journal     Hybrid Journal   (Followers: 125)
European Public Law     Full-text available via subscription   (Followers: 32)
European Review of Contract Law     Hybrid Journal   (Followers: 21)
European Review of Private Law     Full-text available via subscription   (Followers: 29)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 2)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 9)
Faulkner Law Review     Full-text available via subscription   (Followers: 1)
Federal Communication Law Journal     Full-text available via subscription   (Followers: 1)
Federal Law Review     Full-text available via subscription   (Followers: 20)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 16)
feminists@law     Open Access   (Followers: 4)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  
Florida Bar News     Free  
Florida Law Review     Open Access   (Followers: 3)
Florida State University Law Review     Open Access   (Followers: 3)
Fordham Environmental Law Review     Open Access   (Followers: 5)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 19)
Fordham Law Review     Open Access   (Followers: 13)
FORO. Revista de Ciencias Jurídicas y Sociales, Nueva Época     Open Access   (Followers: 2)
Fundamina : A Journal of Legal History     Open Access   (Followers: 7)
Geoforum     Hybrid Journal   (Followers: 22)
George Washington Law Review     Free   (Followers: 7)
Georgia Law Review     Open Access   (Followers: 1)
Georgia State University Law Review     Open Access   (Followers: 2)
Global Journal of Comparative Law     Hybrid Journal   (Followers: 2)
Global Labour Journal     Open Access   (Followers: 7)
Golden Gate University Environmental Law Journal     Open Access   (Followers: 3)
Golden Gate University Law Review     Open Access   (Followers: 2)

        1 2 3 4 | Last

Journal Cover Duke Law Journal
  [SJR: 1.27]   [H-I: 30]   [25 followers]  Follow
    
  This is an Open Access Journal Open Access journal
   ISSN (Print) 0012-7086
   Published by Duke University Press Homepage  [56 journals]
  • Journal Staff

    • PubDate: Mon, 15 May 2017 07:39:03 PDT
       
  • An Administrative Right To Be Free from Sexual Violence? Title IX
           Enforcement in Historical and Institutional Perspective

    • Authors: Karen M. Tani
      Abstract: One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Article offers crucial context by reminding readers that freedom from sexual violence was once celebrated as a national civil right—upon the enactment of the Violence Against Women Act of 1994—but then lost that status in a 5–4 decision by the U.S. Supreme Court. OCR’s recent campaign reflects a legal and political landscape in which at least some potential victims of sexual violence had come to feel rightfully connected to the institutions of the federal government, and then became righteously outraged by the endurance of such violence in their communities. OCR’s campaign also reflects the unique role of federal administrative agencies in this landscape. Thanks to the power of the purse and the conditions that Congress has attached to funding streams, agencies enjoy a powerful form of jurisdiction over particular spaces and institutions. Attempts to harness this jurisdiction in service of aspirational rights claims should not surprise us; indeed, we should expect such efforts to continue. Building on this insight, the Article concludes with a research agenda for other scholars seeking to understand and evaluate OCR’s handiwork.
      PubDate: Mon, 15 May 2017 07:38:59 PDT
       
  • Administering Suspect Classes

    • Authors: Bertrall L. Ross II
      Abstract: It has been over forty years since the Supreme Court declared a class suspect under the Equal Protection Clause. In that time, the Court has denied suspect-class status—and the special judicial protections associated with it—to the elderly, the disabled, and the poor, and it has avoided suspect-class determinations when addressing laws that discriminate against members of the LGBTQ community. Administrative agencies, however, have stepped in to provide marginalized groups with some protections through their interpretation of civil rights laws. The Court has shown hostility to those agency interpretations, often in opaque decisions that seem to rest on principles of judicial supremacy as much as substantive constitutional principles.This Article argues that the Court’s hostility to agencies’ role in this area is misguided. Courts should defer to administrative agencies when they protect suspect classes on the basis of reasonable interpretations of civil rights statutes. The principle of judicial supremacy is not relevant: the Court’s abandonment of suspect classes appears driven by the Justices’ concern that the judiciary is intervening too much into the political process rather than a genuine belief that the groups in question do not qualify for suspect status. Given that this court-centered institutional concern does not apply to agencies, it is entirely appropriate for administrative officials to step in to fill the gap in protecting vulnerable minorities. Further, agencies are better positioned than other institutions to calibrate the protection of groups according to the societal context and the need for intervention.
      PubDate: Mon, 15 May 2017 07:38:55 PDT
       
  • Overreach and Innovation in Equality Regulation

    • Authors: Olatunde C.A. Johnson
      Abstract: At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.
      PubDate: Mon, 15 May 2017 07:38:51 PDT
       
  • Bureaucracy As the Border: Administrative Law and the Citizen Family

    • Authors: Kristin A. Collins
      Abstract: This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating at various levels within the administrative hierarchy have played a profound role in the cultivation of the substantive legal principles that those agencies administer. Searching for standards with which to interpret family-based citizenship and immigration statutes, twentieth-century administrators adapted family law principles in the process of developing new rules to govern who counted as a citizen. At times, these administrators operated with a significant degree of autonomy and authority, to a certain extent because of neglect rather than by design. At other times, these administrators shaped the law through legislative and adjudicative processes. These historical sources offer an instructive case study of administrative constitutionalism and of the fluid and dynamic relationship between “internal” and “external” administrative law. They also illuminate the active role of administrators in developing a conception of family that determined, and in many cases continues to determine, the fates of would-be citizens and immigrants.
      PubDate: Mon, 15 May 2017 07:38:48 PDT
       
  • On Dollars and Deference: Agencies, Spending, and Economic Rights

    • Authors: Mila Sohoni
      Abstract: Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands.This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States.
      PubDate: Mon, 15 May 2017 07:38:44 PDT
       
  • Journal Staff

    • PubDate: Tue, 25 Apr 2017 17:08:03 PDT
       
  • Liquidation of Constitutional Meaning Through Use

    • Authors: Paul G. Ream
      Abstract: In recent years, constitutional scholars have engaged in dialogue over the validity of looking to historical and social practice to determine what the Constitution means. Part of this debate has focused on the idea of “liquidation,” suggested by James Madison in Federalist 37 and other writings as a means by which the text of the Constitution might take on additional meaning after the ink had dried. Constitutional decisionmakers, both on the Supreme Court and in the executive branch, have found recent occasion to consider the importance of past practice when deciding what our founding document means now.This Note clarifies the idea of liquidation and explores what it might offer us as an interpretive tool. To do so, it sets up two lines of inquiry, one historical and the other theoretical. Ultimately, I hope to demonstrate that Madison’s idea of liquidation, revealed through historical evidence, is conceptually quite similar to the way twentieth-century linguistic philosopher Ludwig Wittgenstein suggests that language—be it constitutional text or modern speech—acquires meaning. Wittgenstein’s suggestion that meaning comes from use illuminates and fills in a theoretical structure behind what Madison meant when writing about liquidation.By using the tools of history and philosophy, this Note combines two interpretive modalities in service of strengthening the legitimacy of scholarly and judicial recognition of the robust role that practice plays in our decisions about what the Constitution means. Examining the Madisonian concept of liquidation through Wittgenstein’s ideas about language provides useful reinforcement to the idea that what we do “can inform our determination of ‘what the law is.’”
      PubDate: Tue, 25 Apr 2017 17:07:59 PDT
       
  • Zivotofsky II and National Security Decisionmaking at the Lowest Ebb

    • Authors: Chase Harrington
      Abstract: This Note examines assertions of exclusive presidential power in light of the Supreme Court’s 2015 decision in Zivotofsky ex rel. Zivotofsky v. Kerry. This Note argues that, contrary to the suggestion of some commentators, the decision enhances the President’s ability to disregard legislative restrictions at flashpoints of national security decisionmaking.As Zivotofsky II saw, the President exclusively holds the power to recognize foreign countries. More significant, however, are the analytic moves that the Court introduces when assessing a President’s defiance of an act of Congress—a setup where the President’s power reaches its “lowest ebb.”The Zivotofsky II Court reshaped the lowest-ebb posture by relying heavily on historical practice and functionalist arguments to support its conclusion that the President enjoys exclusive authority over foreign recognition. Such arguments have never before been invoked by the Court to invalidate an act of Congress in the field of foreign affairs and systematically favor the executive in future separation-of-powers standoffs. Moreover, even if courts read Zivotofsky II narrowly, executive branch lawyers will not. And because justiciability doctrines often insulate executive action from judicial review, the primary (if not the only) legal assessment of hard national security choices will be made by lawyers in the executive branch.To illustrate the importance of Zivotofsky II’s impact on executive power, this Note presents three case studies in areas where the political branches have ambiguous or overlapping authority and where the structural advantages of the executive branch are uniquely important—covert actions, electronic surveillance, and the disposition of captured enemy combatants.
      PubDate: Tue, 25 Apr 2017 17:07:56 PDT
       
  • Lessons from New Orleans: A Stronger Role for Public Defenders in Spurring
           Indigent Defense Reform

    • Authors: Ace M. Factor
      Abstract: Excessive caseloads prevent public defenders from fulfilling their ethical obligations and curtail criminal defendants’ right to the effective assistance of counsel. Despite this ethical and constitutional dilemma, legislators have been reluctant to provide adequate funds for indigent defense. And because of the separation of powers, courts have been unable to force legislators’ hands. Against this backdrop, criminal defendants in states that choose not to adequately fund indigent defense face a serious risk of wrongful conviction.The Orleans Public Defenders Office (OPD) provides a case study of public defenders playing a stronger role in spurring legislative reform. In response to a funding crisis in Louisiana, the OPD refused to take new cases beyond constitutionally permissible workloads. This refusal resulted in criminal defendants being put on waiting lists for representation, which garnered national attention, gave rise to class action lawsuits against the state, and created a threat to public safety. These are governance problems that legislators prioritize over funding indigent defense. The OPD’s refusal to take new cases has been somewhat successful: in response to this crisis, the state legislature has provided additional funds to public defenders’ offices in the state.Public defenders are in a unique position to put pressure on legislators. By refusing to take new cases that would cause their workloads to be excessive, public defenders can both maintain their obligations to the profession and ensure constitutional representation for their clients.
      PubDate: Tue, 25 Apr 2017 17:07:52 PDT
       
  • Standing To Sue: Lessons from Scotland’s Actio Popularis

    • Authors: James E. Pfander
      Abstract: Much of what we think we know about the nature of judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s Commentaries on the Laws of England shaped many an antebellum lawyer’s notion of legal practice, and jurists in the twentieth century quite deliberately pointed to the courts at Westminster when discussing the origins of judicial power in America.An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth-century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which relied on Romano-canonical alternatives to the common law writ system. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these courts registered legal claims and tested the boundaries of official authority.This Article examines the rules of standing to sue that emerged from one important court’s reliance on civil law modes of practice. The Scottish Court of Session heard cases in both law and equity and, early on, developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While in private litigation the Scots imposed standing limits—or what the Court of Session referred to as title and interest to sue—they also permitted individuals to bring an actio popularis, or popular action, in certain circumstances. The Scottish actio popularis allowed individual suitors to press legal claims held in common with other members of the public. By offering an account of Scots practice, this Article illuminates a remarkably mature but long-ignored body of standing law. In doing so, it draws upon Scottish ideas to explore the origins of modern standing law in the United States, the viability of claims asserting generalized grievances, and the importance of representational adequacy and nonparty preclusion to a full understanding of public law litigation.
      PubDate: Tue, 25 Apr 2017 17:07:48 PDT
       
  • Debunking Antinovelty

    • Authors: Leah M. Litman
      Abstract: This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto antinovelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: the Court described a statute as novel when distinguishing that statute from other, constitutionally permissible ones. Since then, the Court has weaponized its rhetoric about legislative novelty such that a federal statute’s novelty is now a “telling indication” that the statute is unconstitutional.This Article urges the Court to abandon this rhetoric. The idea that legislative novelty is a sign that a statute is unconstitutional primarily rests on the mistaken Madisonian premise that Congress reliably exercises the full scope of its constitutional powers and that prior Congresses’ failure to enact a statute shows that prior Congresses assumed that the statute was unconstitutional. But there are myriad reasons why Congress does not enact statutes: enacting federal laws is difficult—in part because of constitutional requirements—and Congress legislates in response to existing conditions, which change over time. There are also many reasons why Congress may not innovate and why Congress may not have enacted every constitutionally permissible means of regulation. This Article suggests that there may be a more limited role for legislative novelty to play in areas of underenforced constitutional norms where courts have struggled to articulate workable doctrinal rules. Even then, a statute’s novelty should carry little weight in any determination about the statute’s constitutionality. Finally, this Article reflects on whether rejecting the Court’s rhetoric about legislative novelty necessarily calls into question the idea that a history of similar congressional statutes is evidence that a statute is constitutional.
      PubDate: Tue, 25 Apr 2017 17:07:40 PDT
       
  • Journal Staff

    • PubDate: Mon, 27 Mar 2017 12:25:40 PDT
       
  • A Picture Is Worth a Thousand Material-Connection Disclosures: Endorsers,
           Instagram, and the Federal Trade Commission’s Endorsement Guides

    • Authors: Lauren Myers
      Abstract: With the spread of social-media advertising, the Federal Trade Commission (FTC) has made many attempts to regulate the burgeoning field. However, the complexity of social media makes it difficult to regulate without violating the First Amendment. This difficulty is especially true for Instagram, a social-media platform where pictures—a form of speech protected by the First Amendment—are the primary focal point. This Note argues that the FTC’s material-connection disclosure requirement potentially violates the First Amendment as it applies to Instagram advertisements. Instead of focusing on audience perception when determining whether an endorser must include a material-connection disclosure, the FTC should instead consider the poster’s intent in sharing an Instagram post to prevent any chilling of speech or violations of posters’ First Amendment rights.
      PubDate: Mon, 27 Mar 2017 12:25:36 PDT
       
  • Health Care’s Other “Big Deal”: Direct Primary Care Regulation in
           Contemporary American Health Law

    • Authors: Glenn E. Chappell
      Abstract: Direct primary care is a promising, market-based alternative to the fee-for-service payment structure that shapes doctor–patient relationships in America. Instead of billing patients and insurers service by service, direct primary care doctors charge their patients a periodic, prenegotiated fee in exchange for providing a wide range of healthcare services and increased availability compared to traditional practices. This “subscription” model is intended to eliminate the administrative burdens associated with insurer interaction, which, in theory, allows doctors to spend more time with their patients and less time doing paperwork.Direct practices have become increasingly popular since Congress passed the Affordable Care Act (ACA). This growth has been driven by legislation in several states that resolves a number of legal questions that slowed the model’s growth and by the ACA’s recognition of the model as a permissible way to cover primary care in “approved” health plans. Yet legal scholars have hardly focused on direct primary care. Given the model’s growth, however, the time is ripe for a more focused legal inquiry.This Note begins that inquiry. After tracing the model’s evolution and its core components, this Note substantively examines the laws in states that regulate direct practices and analyzes how those laws address a number of potential policy concerns. It then analyzes direct primary care’s broader role in the contemporary American healthcare marketplace. Based upon that analysis, this Note concludes that direct primary care is a beneficial innovation that harmonizes well with a cooperative-federalism-based healthcare policy model.
      PubDate: Mon, 27 Mar 2017 12:25:32 PDT
       
  • Rise of the Digital Regulator

    • Authors: Rory Van Loo
      Abstract: The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. Although they make buying easier, they can also subtly advance their interests at the expense of those they serve. Publicly run alternatives lack accountability or—like the Affordable Care Act health-insurance exchanges—are massive undertakings. The unpleasant truth is that creating effective digital regulators would require investing heavily in a new oversight regime or sophisticated state machines. Either path would benefit from an interdisciplinary uniform process to modernize administrative, antitrust, commercial, and intellectual property laws. Ideally, a technology meta-agency would then help keep that legal framework updated.
      PubDate: Mon, 27 Mar 2017 12:25:29 PDT
       
  • Police Union Contracts

    • Authors: Stephen Rushin
      Abstract: This Article empirically demonstrates that police departments’ internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability.Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor law may partially explain this failure. Most states permit police officers to bargain collectively over the terms of their employment, including the content of internal disciplinary procedures. This means that police union contracts—largely negotiated outside of public view—shape the content of disciplinary procedures used by American police departments.By collecting and analyzing an original dataset of 178 union contracts from many of the nation’s largest police departments, this Article shows how these agreements can frustrate police accountability efforts. A substantial number of these agreements limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations. In light of these findings, this Article theorizes that the structure of the collective bargaining process may contribute to the prevalence of these problematic procedures. It concludes by considering how states could amend labor laws to increase transparency and community participation in the negotiation of police union contracts.
      PubDate: Mon, 27 Mar 2017 12:25:25 PDT
       
  • Journal Staff

    • PubDate: Thu, 16 Feb 2017 07:20:29 PST
       
  • Searching for Adequate Accountability: Supervisory Priests and the
           Church’s Child Sex Abuse Crisis

    • Authors: Benjamin D. Wasserman
      Abstract: In 2002, the Boston Globe published a report exposing child sex abuse by priests and a cover-up by supervisory priests. Supervisory priests—church officials who supervise lower-ranking priests—concealed reports of sexual abuse by lower-ranking priests and created substantial risks of sexual abuse to children. Prosecutors tried to hold supervisory priests accountable by turning to statutes that either did not capture the moral culpability of priests, like statutes prohibiting obstruction of justice or contributing to the delinquency of a minor; or that did not legally encompass their misconduct, like child-endangerment statutes. Child endangerment captures the moral culpability of supervisory priests’ misconduct, but child-endangerment statutes based on the Model Penal Code (MPC) do not legally cover supervisory priests or their acts. Though supervisory priests chose to suppress reports of child sex abuse, prosecutors cannot constitutionally shoehorn misconduct into statutes—like child endangerment—that were never before interpreted to apply to individuals like supervisory priests. Instead of breaching the supervisory priests’ constitutionally guaranteed notice that their conduct constituted child endangerment, prosecutors should encourage state legislatures to: 1) extend statutes of limitations for crimes against minors and include clergy as mandatory reporters; 2) amend child-endangerment statutes to include supervisory priests and those similarly situated; and 3) criminalize the reckless creation of a substantial risk of child sex abuse, and the reckless failure to alleviate that risk when there is a duty to do so. Absent legislative action, prosecutors should use statutes that represent a lesser degree of moral culpability, such as contributing to the delinquency of a minor or mandatory-reporter statutes. Enacting statutes that both legally encompass and adequately reflect the blameworthiness of supervisory priests will hopefully deter similar misconduct and protect children from sex abuse in institutional settings.
      PubDate: Thu, 16 Feb 2017 07:20:26 PST
       
  • When Stuff Becomes Art: The Protection of Contemporary Art Through the
           Elimination of VARA’s Public-Presentation Exception

    • Authors: Elizabeth Plaster
      Abstract: The Visual Artists Rights Act of 1990 (VARA) grants an artist the broad power to “prevent any intentional distortion, mutilation, or other modification of the work which would be prejudicial to [the artist’s] honor or reputation.” This right is significantly circumscribed, however, by VARA’s public-presentation exception, which states that a modification “which is the result . . . of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification” that would otherwise violate VARA.This Note argues that the public-presentation exception is injudicious in light of the rise of the contemporary art movement. Much more than artists of earlier movements, contemporary artists rely on precise arrangement of elements and engagement with the physical space surrounding these elements in the creation of a work of art. Yet it is control over those critical contextual elements, arguably the most critical element of a contemporary work, that VARA explicitly denies to the contemporary artist. The public-presentation exception threatens more than just the personal interests of artists—a greater societal interest in preserving authentic cultural heritage for future generations is continually undermined as long as the public-presentation exception remains codified in VARA. Lasting protection of the integrity of works of contemporary art thus requires the elimination of the public-presentation exception.
      PubDate: Thu, 16 Feb 2017 07:20:23 PST
       
 
 
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