for Journals by Title or ISSN
for Articles by Keywords
help
  Subjects -> LAW (Total: 1325 journals)
    - CIVIL LAW (35 journals)
    - CONSTITUTIONAL LAW (47 journals)
    - CORPORATE LAW (88 journals)
    - CRIMINAL LAW (22 journals)
    - CRIMINOLOGY AND LAW ENFORCEMENT (142 journals)
    - FAMILY AND MATRIMONIAL LAW (22 journals)
    - INTERNATIONAL LAW (179 journals)
    - JUDICIAL SYSTEMS (22 journals)
    - LAW (760 journals)
    - LAW: GENERAL (8 journals)

LAW (760 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 22)
Acta Juridica     Full-text available via subscription   (Followers: 7)
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: 42)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 6)
African Journal of Legal Studies     Hybrid Journal   (Followers: 8)
African Journal on Conflict Resolution     Open Access   (Followers: 18)
Afrilex     Open Access   (Followers: 5)
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Al 'Adalah : Jurnal Hukum Islam     Open Access  
Al-Ahkam     Open Access   (Followers: 1)
Alaska Law Review     Open Access   (Followers: 8)
Albany Law Review     Free   (Followers: 5)
Alberta Law Review     Full-text available via subscription   (Followers: 13)
Alternative Law Journal     Hybrid Journal   (Followers: 5)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 4)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 56)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 18)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 11)
American Journal of Legal History     Full-text available via subscription   (Followers: 9)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 10)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 5)
Amsterdam Law Forum     Open Access   (Followers: 8)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access   (Followers: 1)
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: 3)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 3)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 14)
Arctic Review on Law and Politics     Open Access   (Followers: 2)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 5)
Arizona State Law Journal     Free   (Followers: 3)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 3)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 11)
ASAS : Jurnal Hukum dan Ekonomi Islam     Open Access  
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Law and Society     Hybrid Journal   (Followers: 6)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 5)
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: 19)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 14)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access   (Followers: 2)
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 6)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 24)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 5)
Berkeley Technology Law Journal     Free   (Followers: 11)
Bioethics Research Notes     Full-text available via subscription   (Followers: 13)
Boletín de la Asociación Internacional de Derecho Cooperativo     Open Access  
Bond Law Review     Open Access   (Followers: 17)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 6)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 10)
Boston College Law Review     Open Access   (Followers: 14)
Boston University Law Review     Free   (Followers: 10)
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: 3)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
Business and Human Rights Journal     Full-text available via subscription   (Followers: 3)
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)
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: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 157)
Campbell Law Review     Open Access   (Followers: 3)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Canadian Journal of Law & Jurisprudence     Full-text available via subscription   (Followers: 9)
Canadian Journal of Law and Society     Hybrid Journal   (Followers: 19)
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)
China : An International Journal     Full-text available via subscription   (Followers: 19)
China-EU Law Journal     Hybrid Journal   (Followers: 5)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 4)
Chinese Law & Government     Full-text available via subscription   (Followers: 7)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 8)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 15)
Columbia Law Review (Sidebar)     Open Access   (Followers: 16)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 4)
Comparative Law Review     Open Access   (Followers: 38)
Comparative Legal History     Full-text available via subscription   (Followers: 8)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 27)
Conflict Trends     Full-text available via subscription   (Followers: 12)
Cornell Law Review     Open Access   (Followers: 9)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 5)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 27)
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   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 14)
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: 3)
DePaul Law Review     Open Access   (Followers: 3)
Der Staat     Full-text available via subscription   (Followers: 14)
Derecho Animal. Forum of Animal Law Studies     Open Access  
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     Open Access  
Die Verwaltung     Full-text available via subscription   (Followers: 11)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Diké : Revista Jurídica     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: 4)
Dixi     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  
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: 15)
Duke Law & Technology Review     Open Access   (Followers: 9)
Duke Law Journal     Open Access   (Followers: 24)
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)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 17)
Education and the Law     Hybrid Journal   (Followers: 12)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 25)
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: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 13)
ERA-Forum     Hybrid Journal   (Followers: 5)
Erasmus Law Review     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)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 9)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 7)
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: 155)
European Public Law     Full-text available via subscription   (Followers: 36)
European Review of Contract Law     Hybrid Journal   (Followers: 24)
European Review of Private Law     Full-text available via subscription   (Followers: 32)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 5)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 11)
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: 21)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 13)
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: 4)

        1 2 3 4 | Last

Journal Cover Duke Law Journal
  [SJR: 1.27]   [H-I: 30]   [24 followers]  Follow
    
  This is an Open Access Journal Open Access journal
   ISSN (Print) 0012-7086
   Published by Duke University Press Homepage  [23 journals]
  • Journal Staff

    • PubDate: Fri, 26 Jan 2018 14:10:50 PST
       
  • Choose Your Laws Carefully: Executive Authority to Unilaterally Withdraw
           the United States Outer Continental Shelf from Leasing Disposition

    • Authors: Payton A. Wells
      Abstract: Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a different federal law, the Antiquities Act of 1906 (Antiquities Act), to create marine national monuments, providing general protection for areas of rich biodiversity, scientific interest, and cultural heritage. Interestingly, both OCSLA and the Antiquities Act achieve the same end results: offshore energy production is prohibited and the marine environment is protected. The crucial distinction between the two laws, though, is the ability to provide permanent protection. A close study of these laws reveals that only one indeed provides the intended lasting protection that presidents have sought: the Antiquities Act.This Note probes the theory of executive authority to unilaterally remove America’s submerged lands from leasing disposition. Specifically, it centers on President Barack Obama’s twin December 2017 offshore withdrawals in the Atlantic and Arctic Oceans. President Obama utilized OCSLA to ban offshore energy production, but he framed the withdrawals as a way to permanently protect each area’s unique marine biodiversity, scientific value, and cultural significance to indigenous inhabitants. This Note concludes that a president seeking such lasting protection must use the Antiquities Act in lieu of OCSLA. The Note examines the relevant statutory histories, judicial inquiries, and precedential usage of these laws and argues that OCSLA’s protection falls incredibly short. This Note is particularly relevant given the Trump administration’s effort to roll back the Obama administration’s bans on offshore energy production. President Donald Trump’s recent executive actions will surely test the conclusions of this Note.
      PubDate: Fri, 26 Jan 2018 14:10:47 PST
       
  • A Violent Birth: Reframing Coerced Procedures During Childbirth as
           Obstetric Violence

    • Authors: Maria T.R. Borges
      Abstract: In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman’s choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman’s right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth by importing a framework created in Venezuela and Argentina that characterizes this issue as “obstetric violence.” First, this Note contains an overview of the shortcomings of the existing American legal framework to address the problem. Second, it explains the advantages of the obstetric violence framework and argues that its adoption in the United States would address many of the failures of the existing system. And third, this Note introduces a few legislative and litigation strategies that can be used to implement this framework in the United States and briefly addresses some of the challenges these strategies may pose.
      PubDate: Fri, 26 Jan 2018 14:10:44 PST
       
  • Characterizing Constitutional Inputs

    • Authors: Michael Coenen
      Abstract: Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a precondition to reaching constitutional results. To determine whether the government has violated a “fundamental right,” courts must first characterize the relevant right whose fundamentality is at issue. To determine whether a congressional enactment regulates an “economic activity,” courts must first characterize the relevant activity whose economic nature must be scrutinized. To determine whether a challenged law pursues a “compelling government interest,” courts must first characterize the relevant government interest whose importance is to be assessed. Tests of this sort thus implicate not just the familiar judicial challenge of evaluating a given variable by reference to an established doctrinal criterion, but also the less familiar (and often unnoticed) challenge of extracting from a fact pattern an operative characterization of the variable to be evaluated.This Article examines these input-characterization problems as a general challenge of constitutional decisionmaking. The Article makes three contributions. First, the Article demonstrates the widespread presence of characterization problems within constitutional law, highlighting both the broad range of contexts in which these problems arise and the limited amount of attention they have thus far generated. Second, the Article explores the possibility of avoiding input-characterization problems through the reformulation of constitutional decision rules, considering in particular the tradeoffs implicated by the replacement of “characterization-dependent” decision rules with “characterization-resistant” alternatives. Finally, the Article works through the various methods by which courts might confront characterization problems on their own terms, asking whether there exist reliable and predictable means of selecting an authoritative input characterization from the many possibilities that the facts might afford. In sum, this analysis reveals that input-characterization problems are neither easily avoidable nor easily solvable, thus raising critical questions regarding the determinacy and coherence of the doctrine writ large.
      PubDate: Fri, 26 Jan 2018 14:10:41 PST
       
  • The War Against Chinese Restaurants

    • Authors: Gabriel J. Chin et al.
      Abstract: Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction.The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities denied Chinese restaurants licenses, and the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. The unions, of course, did not eliminate Chinese restaurants, but Asians still lost because unions achieved their more important goal by extending the federal immigration policy of excluding Chinese immigrants to all Asian immigrants. The campaign is of more than historical interest today. As current anti-immigration sentiments and efforts show, even now the idea that white Americans should have a privileged place in the economy, or that nonwhites are culturally incongruous, persists among some.
      PubDate: Fri, 26 Jan 2018 14:10:38 PST
       
  • Journal Staff

    • PubDate: Tue, 12 Dec 2017 10:36:57 PST
       
  • Algorithms & Fiduciaries: Existing and Proposed Regulatory Approaches to
           Artificially Intelligent Financial Planners

    • Authors: John Lightbourne
      Abstract: Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24–7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on human financial advisers and how responsibility and liability should be partitioned when an autonomous algorithm falls short of the fiduciary standard and harms a client. After summarizing the applicable law regulating investment advisers and the current state of robo-advising, this Note evaluates whether robo-advisers can meet the fiduciary standard and proposes alternate liability schemes for dealing with increasingly sophisticated machine learning algorithms.
      PubDate: Tue, 12 Dec 2017 07:00:39 PST
       
  • Creating a More Certain Standard for Enhanced Patent Damages by Requiring
           Egregiousness as an Element in the Section 284 Analysis

    • Authors: Brian Barnes
      Abstract: According to 35 U.S.C. § 284, district courts have the power to “increase the damages up to three times the amount found or assessed” by the jury in patent infringement cases where willful infringement occurred. Following the recent Supreme Court decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., it is now less clear how courts are to go about deciding whether to exercise this power. Halo established that the decision lies within the discretion of the district court judge, but declined to give a more concrete standard than urging the judge to “take into account the particular circumstances of each case” and only increase damages in “egregious cases typified by willful misconduct.” This Note proposes a new standard that is consistent with the Halo framework that will bring more certainty to enhanced damages decisions.Under this Note’s proposed standard, before an award of enhanced damages can be made, the jury must find that infringement was willful, and the judge must find that the infringement was egregious under the standards established by the Federal Circuit. The egregiousness of the infringement is an explicit element that must be established before enhanced damages can be awarded. After these two elements are satisfied, the judge would have the discretion to award enhanced damages depending on the circumstances of the case. The egregiousness element is a mixed question of fact and law, so factual determinations made by the lower court are subject to clear error review and the overall legal determination of egregiousness is subject to de novo review by the Federal Circuit. This proposed standard would allow the Federal Circuit to reduce the uncertainty left by Halo , making it clear that egregiousness is required for every award of enhanced damages and providing a framework of specific factors district courts should weigh in making that determination.
      PubDate: Tue, 12 Dec 2017 07:00:35 PST
       
  • Foreign Price-Fixing Conspiracies

    • Authors: Christopher R. Leslie
      Abstract: Although price-fixing agreements remain per se illegal in the United States, courts have undermined the per se rule against price fixing by making it harder for plaintiffs to prove that such an agreement exists. For example, most courts that have considered the issue have held that defendants’ price-fixing conduct in a foreign market is not probative of price fixing in the United States. This Article examines the relationship between foreign and domestic price-fixing activity and shows how expanding a price-fixing cartel from foreign markets into the United States benefits the cartel by reducing the risk of arbitrage, stabilizing the cartel, and concealing the conspiracy from global antitrust authorities. The Article then takes the insights from the empirical and theoretical cartel literature and applies them to antitrust doctrine in order to demonstrate why defendants’ overseas price-fixing arrangements are relevant to proving the existence of an agreement in litigation claiming that the same defendants fixed prices in the American market. Finally, the Article encourages courts to better understand how international price-fixing cartels operate.
      PubDate: Tue, 12 Dec 2017 07:00:31 PST
       
  • One Good Plaintiff Is Not Enough

    • Authors: Aaron-Andrew P. Bruhl
      Abstract: This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing to pursue the claims before the court. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to proceed as if all plaintiffs have standing as long as one plaintiff has it, and they will then decide the merits for or against all plaintiffs despite doubts about the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if each presents similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains that the one-plaintiff rule is harmful as a practical matter because it assigns the benefits and detriments of judgments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could have attained such widespread acceptance. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.
      PubDate: Tue, 12 Dec 2017 07:00:28 PST
       
  • Journal Staff

    • PubDate: Wed, 22 Nov 2017 07:43:12 PST
       
  • The Class is Greener on the Other Side: How Private Donations to Public
           Schools Play into Fair Funding

    • Authors: Abigail Margaret Frisch
      Abstract: It has been observed that forays into public education finance resemble Russian novels-"long, tedious, and everybody dies in the end." On any given day, dozens of news stories describe schools nationwide struggling to make ends meet. And, just as "each unhappy family is unhappy in its own way," each underfunded school is underfunded in its own complicated way. Funding for public education comes from many places, chief among them local property taxes, at least historically. States-which bear primary responsibility for administering their education systems-and private litigants have struggled for over sixty years to produce funding formulas that weaken the link between a community's wealth, as measured by property taxes, and the quality of its education.Alongside that trend to develop more equitable public funding, another trend began to emerge, in the form of increased public school reliance on sophisticated private fundraising organizations. Studies show that these organizations are unequally distributed along socioeconomic lines, leading many to conclude that they foster exactly the sort of inequitable public school resources that states have been trying to stifle. Although there is not enough data to claim that this disrupts equitable funding efforts statewide or nationwide, these organizations continue to grow rapidly, and the existing anecdotal evidence of neighboring schools with dramatically different resources is troubling. Calls to prohibit such private donations are also troubling, however, as these donations are well intended and provide schools with necessary resources and community support.Currently, no state-level regulations exist to provide guidance for how private donations might equitably exist within a publicly funded school system. This Note argues that it is time for state legislators to break this silence and proactively determine a statewide protocol for private donations that comports with their state's mission to provide a high quality public education to children from all socioeconomic backgrounds. In doing so, this Note emphasizes that it is critical to avoid characterizing private donations as inherently good or inherently bad because solutions permitting unlimited private donations are as undesirable as solutions that completely eliminate them. State legislators are equipped to find an appropriate point on that spectrum, one which protects the valuable goal of providing public education to all children equitably but does not discourage the valuable benefits of local community support for public education.
      PubDate: Wed, 22 Nov 2017 07:43:08 PST
       
  • Don't Try This at Home: The FDA's Restrictive Regulation of
           Home-Testing Devices

    • Authors: Shelby Baird
      Abstract: Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers' access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe, based on fears that consumers would make irrational medical decisions after receiving genetic variant results.Although the FDA has the statutory authority to ensure the "safety and effectiveness" of medical devices, it has expansively interpreted the term "safety" to encompass considerations of how consumers might use test results provided by purely informative devices. This Note argues that courts should not give the FDA deference on its broad interpretation of "safety" in restricting home-testing devices. It documents the evolution of the expertise-based rationale for judicial deference, noting that courts typically provide scientific agencies, including the FDA, "super deference" because of the complicated nature of their work. Ultimately, courts should not defer to the FDA’s interpretation of "safety" because it did not use its scientific expertise when it considered how consumers might react to HIV home-testing and DTC genetic testing results. Further, the FDA should not have the authority to make decisions based on its view of "safety" because it should not have the power to make value judgments for consumers about whether they should seek their personal medical information.
      PubDate: Wed, 22 Nov 2017 07:43:03 PST
       
  • Contracts Ex Machina

    • Authors: Kevin Werbach et al.
      Abstract: Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses' In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually illuminate the role of contract law more than they obviate it.
      PubDate: Wed, 22 Nov 2017 07:42:59 PST
       
  • The Bootstrap Trap

    • Authors: Sara Sternberg Greene
      Abstract: In the mid-1990s, Congress fundamentally altered the public safety net when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, otherwise known as welfare reform. Under the PRWORA, cash assistance was no longer an entitlement for income-qualifying families; instead, recipients faced work requirements and lifetime limits on receiving benefits. Bipartisan reformers sought to transform welfare from a program believed to trap poor mothers in a "culture of dependence" into a program that would promote a culture of "self-sufficiency" and "personal responsibility." This shift in culture, it was argued, would ultimately lead to upward mobility. This Article shows how, ironically, over twenty years after welfare reform, the private safety net that many struggling families rely on—the credit system—disincentivizes the very self-sufficient behavior that welfare reformers had hoped to promote. Using the sociological concept of narratives, the Article shows how parents who have most internalized narratives of self-sufficiency are particularly at risk of financial ruin under the new regime. On a broader scale, this Article argues that, to better understand the relationship between law, inequality, and poverty, we need to further investigate how people experience and internalize structural conditions and how these structural conditions become sources of personal meaning and determinants of behavior. Such inquiries can lead to unexpected connections between seemingly disparate areas of law and policy, and ultimately to innovative policy interventions.Finally, this Article moves to the prescriptive. It argues for a public financial services program, Financial Services for Family Security (FSFS). FSFS would provide services such as financial advising, no-interest small loans, and debt management help, all aimed at increasing the financial resilience of struggling families.
      PubDate: Wed, 22 Nov 2017 07:42:54 PST
       
  • Journal Staff

    • PubDate: Wed, 04 Oct 2017 08:03:27 PDT
       
  • Rule 24 Notwithstanding: Why Article III Should Not Limit Intervention of
           Right

    • Authors: Zachary N. Ferguson
      Abstract: The Supreme Court recently decided in Town of Chester v. Laroe Estates, Inc. that intervenors of right under Federal Rule of Civil Procedure 24(a)(2) must demonstrate independent Article III standing when they pursue relief different from that requested by an original plaintiff. This decision resolved, in part, a decades-long controversy among the Courts of Appeals over the proper relationship between Rule 24 intervention and Article III standing that the Court first acknowledged in Diamond v. Charles. But the Court’s narrow decision in Town of Chester hardly disposed of the controversy, and Courts of Appeals are still free to require standing of defendant-intervenors and, it stands to reason, plaintiff-intervenors even if they do not pursue different relief.With this debate yet unresolved, this Note takes a less conventional approach. In addition to arguing that the Supreme Court’s precedents implicitly resolved this question before Town of Chester, this Note argues that the nature of judicial decisions raises two concerns that a liberal application of Rule 24(a)(2) would mitigate. First, this Note argues that stare decisis limits the right of litigants to be heard on the merits of their claims and defenses in a way that undermines the principles of due process. Second, this Note argues that the process of judicial decisionmaking is fraught with potential epistemic problems that can produce suboptimal legal rules. After considering these two concerns, this Note argues that Rule 24(a)(2) is a better and more practical way to mitigate these problems than are Rule 24(a)(2)’s alternatives.
      PubDate: Wed, 04 Oct 2017 08:03:24 PDT
       
  • This Name is Your Name: Public Landmarks, Private Trademarks, and Our
           National Parks

    • Authors: Megan Elaine Ault
      Abstract: To generations of Americans, Yosemite National Park and its landmarks have symbolized the core democratic ideals of the United States—spaces truly owned by the people and open to all. For those who created our national parks, “[t]he purpose of preserving this land was to cultivate a kind of rare experience [they] saw as endangered by a social world that turned every thing, moment, and human being to profit.” It is striking, then, that Yosemite, one of the nation’s first national parks, has become the focus of a battle over whether our landmarks and their names belong to us all or to a select few. In 2016, several Yosemite National Park landmarks were renamed due to an ongoing trademark dispute between a concessions company and the National Park Service (NPS). At the end of its contract with the park, the departing concessions company demanded compensation for the trademarks to the words “The Ahwahnee,” “Wawona,” “Badger Pass,” “Curry Village,” and perhaps most shockingly, “Yosemite National Park” itself. During its contractual relationship with the NPS—and apparently unbeknownst to NPS administrators—the concessions company filed for and received trademarks for use of these landmark names in hospitality and merchandising contexts.Allowing short-term concessionaires to trademark the names of publicly owned and culturally treasured assets implicates key trademark principles in several ways. The oft-recited aims of trademark law are providing information to the consumer, promoting competition, and avoiding dilution of brands by protecting accrued goodwill. Allowing short-term concessionaires to register national park landmark names conflicts with each of these aims, as this Note explains. A limited contractual relationship fits poorly with the enduring cultural value of well-known landmarks and raises complex questions about business operations and intellectual property in the national park context. This Note contends that principles of trademark law and policy are undermined if federal contractors can establish long term proprietary rights over national park landmark names. To provide a comprehensive picture of the Yosemite case, Part I will further explore the facts surrounding the trademarks and landmarks in question, as well as the contractual relationship between DNC Parks & Resorts at Yosemite, Inc. (DNCY) and the NPS. Part II considers the NPS’s claims for cancellation of the Yosemite-linked trademarks under existing U.S. trademark law. Part III argues that concessionaire registrations are inconsistent with the baseline goals of trademark law. Finally, Part IV suggests that legislation, similar to a statute recently enacted in California, represents a possible solution to the issues surrounding private trademarking of public landmark names. This Note asserts that the purposes of trademark law support taking the names of national parks and landmarks off the bargaining table and out of would-be profiteers’ reach, and that providing our national park landmark names with statutory protection from commercial interests fits perfectly within the American tradition of preserving the parks themselves.
      PubDate: Wed, 04 Oct 2017 08:03:20 PDT
       
  • Polygamous Marriage, Monogamous Divorce

    • Authors: Michael J. Higdon
      Abstract: Could the constitutional right to marry also encompass polygamy' That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions—dubbed “sequential polygamy”—would compromise the state’s interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state’s ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty—the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens.
      PubDate: Wed, 04 Oct 2017 08:03:17 PDT
       
  • The Black Hole Problem in Commercial Boilerplate

    • Authors: Stephen J. Choi et al.
      Abstract: Rote use of a standard-form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. When they occur, rote usage and encrustation weaken the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is emptied of meaning, it can create a contractual black hole in which, as the term loses meaning, random variations in language appear and persist. What, then, are the consequences if parties exploit these variations in language by successfully advancing an interpretation the market disavows' Traditional doctrine holds that even if the court errs in the meaning it gives to a clause, parties have an incentive promptly to revise the standard language to exclude the aberrant interpretation. But what if the assumptions about the costs and motivations to revise this type of boilerplate are wrong' We seek purchase on this question with a study of the pari passu clause, a standard provision in sovereign debt contracts that almost no one seems to understand. This clause gained fame in 2011 because of a series of court decisions in New York arguably misinterpreting a particular variation of the clause. Even though the courts’ interpretation put at risk a multitrillion dollar debt market, meaningful revisions to the language of the boilerplate term did not begin to appear until late 2014. In the interim, trillions of dollars in bonds were issued with an uncorrected version of the term. Market forces, in other words, worked slowly to remedy a systemic problem that caused substantial costs. We ask whether the state could do more to avoid the problem at the front end rather than depend on market forces to correct court error at the back end.
      PubDate: Wed, 04 Oct 2017 08:03:14 PDT
       
 
 
JournalTOCs
School of Mathematical and Computer Sciences
Heriot-Watt University
Edinburgh, EH14 4AS, UK
Email: journaltocs@hw.ac.uk
Tel: +00 44 (0)131 4513762
Fax: +00 44 (0)131 4513327
 
Home (Search)
Subjects A-Z
Publishers A-Z
Customise
APIs
Your IP address: 54.198.119.26
 
About JournalTOCs
API
Help
News (blog, publications)
JournalTOCs on Twitter   JournalTOCs on Facebook

JournalTOCs © 2009-