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LAW (761 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: 159)
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: 157)
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: 12)
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 Florida State University Law Review
  [4 followers]  Follow
    
  This is an Open Access Journal Open Access journal
   ISSN (Print) 0096-3070
   Published by Florida State University Homepage  [2 journals]
  • The Case for a Uniform Definition of a Leveraged Loan

    • Authors: Zachary L. Pechter
      Abstract: Over the past twenty years, leveraged loans and high yield bonds have converged into similar instruments, sparking a debate as to whether leveraged loans should be regulated as securities like high yield bonds. This Note recognizes problems with the current regulatory framework for leveraged loans and shows that leveraged loans are not securities and should not be regulated as such. Instead of regulating leveraged loans as securities, which would likely be more costly than beneficial and contrary to the SEC’s mission statement, the SEC should promulgate a uniform definition of a leveraged loan. This solution would alleviate problems such as regulatory arbitrage and the opaqueness of the market while avoiding the costs associated with securities regulation. This Note concludes by offering a definition of a leveraged loan to provide a model for the SEC if it decides to adopt this solution.
      PubDate: Tue, 12 Dec 2017 09:44:08 PST
       
  • Filling the Gap of Domestic Violence Protection: Returning Human Rights to
           U.S. Victims

    • Authors: Melanie Kalmanson
      Abstract: The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current state-based system inadequately serves victims of domestic violence, and previous US. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one's human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for protecting U.S. citizens from this human rights violation. Thus, this Note contends that a federal statute creating federal liability against a state for failing to protect domestic violence victims should be enacted in accordance with the United States’ responsibility under the American Declaration.
      PubDate: Tue, 12 Dec 2017 09:44:04 PST
       
  • Stays of Injunctive Relief Pending Appeal: Why the Merits Should Not
           Matter

    • Authors: Jill Wieber Lens
      Abstract: In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal. Stays play an important role in appellate judicial review but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the merit factor, is not supported historically, theoretically, or practically Instead courts should look to whether a stay is necessary-due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors Courts must also explain their application of these stay factors. Otherwise, their decisions seem unjustified, inconsistent, and illegitimate.
      PubDate: Tue, 12 Dec 2017 09:44:01 PST
       
  • Distributive Justice and Contract law: A Hohfeldian Analysis

    • Authors: Marco Jimenez
      Abstract: According to Aristotle, justice consists of giving each person his due: equal members of society should be treated equally, and unequal members, unequally. This justice, in turn, comes in two flavors: distributive and corrective. Distributive justice—which has as its purview society at large—is concerned with distributing society's shares to individuals according to merit. Whereas, the purview of corrective justice concerns voluntary (e.g., contracts) and involuntary (e.g., torts) transactions, and it seeks to rectify unjust alterations in the distributive scheme by returning the parties to the position they occupied before the distributive scheme was altered, which is to say, before a particular harm occurred.Even today, Aristotle's classification of these two types of justice holds a firm grip on the judicial imagination, and perhaps nowhere is this truer than in contract law. There, it is taken for granted that the distributive shares held by members of society are determined both prior to, and outside of contract law. The distributive question having been settled, itis believed that the proper role of contract law is merely to (a) facilitate the just exchange of these distributive shares by allowing parties to bargain and form agreements with one another and (b) rectify any unjust alteration to these previously established distributive shares. To couch this in Aristotelian terms, contract law should be concerned with enforcing the rules of corrective justice-which will facilitate and rectify the just exchange of previously allocated distributive shares-but should not be concerned with the initial distribution of those shares.This Article challenges that view, and argues that the seemingly value-neutral rules of contract law are fundamentally distributive in nature, and that to ignore these distributive considerations is more than just bad policy-it is to misunderstand how the fundamental building blocks of the law are arranged to form contract law in the first place. Indeed, given the distributive nature of contract law, even the most non -activist judge imaginable, who sees it as his or her role to simply apply the law as written, and who views it as entirely improper to consider notions of distributive justice for the purpose of achieving a fairer distribution of wealth among members of society, nevertheless cannot help but make distributive decisions whenever he or she selects among or administers the rules of contract law, which have embedded within their very structure a deeply entrenched view of distributive justice.This is because every determination of law, including the determination of which rights ought or ought not to exist, or ought to be applied in a particular contractual setting, is the product (intentional or otherwise) of a policy decision regarding not whether the legal relationship in question ought or ought not to be regulated, but how that relationship should be regulated And this regulation, in turn, requires that judge -even judges who adamantly view themselves as non-activist judges-make an ex ante distributive decision regarding which rights ought and ought not to exist, which rules ought and ought not to apply, and how those rights and rules ought and ought not be protected These decisions, in turn, must all be made as a matter of policy rather than law.Teasing out the implications of these insights can fundamentally alter the way we view and understand contract law. For instance, once we realize that the various legal rules that govern contract law are made up of a conglomeration of policy decisions regarding how to regulate (rather than whether to regulate) the relationship between the contracting parties, one of the largest obstacles to regulation-that of the perceived judicial interference with the rights of the parties-is removed as the need for regulation is now seen as mandatory rather than permissive. And because regulation is mandatory, the real question ought to be how we should understand, if not change, the manner in which the selection, application, and interpretation of contract rules affects the distributive arrangements between the parties to a contract.
      PubDate: Tue, 12 Dec 2017 09:43:58 PST
       
  • What Personal Jurisdiction Doctrine Does -- And What it Should Do

    • Authors: Katherine Florey
      Abstract: Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court's assertion of power over a particular defendant and case may have two undesirable consequences. First the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second a court's jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign's substantive standards apply to particular conduct. Personal jurisdiction, to some extent, addresses both of these issues. But with respect to both goals, it has competition. Multiple protections, including venue and forum non conveniens, help to ensure that defendants are not unfairly burdened by litigation. An even greater variety of doctrines, such as dormant commerce clause protections, choice-of-law restrictions, and limits on punitive damages, restrict the ability of states to regulate distant conduct and thereby exceed their sovereign boundaries. In light of these additional protections, this Article suggests reorienting personal jurisdiction toward functions not well served by other doctrines, and proposes three possible goals that meet this standard providing redundant protections to foreign defendants, screening out cases likely to create difficult questions of choice-of-law constitutionality, and adding the factor of purposeful availment to the analysis of defendant fairness. Surveying the four personal jurisdiction cases the Court has recently decided, this Article finds that they have addressed the first of these goals to some extent, but have slighted the second and third.
      PubDate: Tue, 12 Dec 2017 09:43:54 PST
       
  • Narratives of Gene Patenting

    • Authors: Jorge L. Contreras
      Abstract: The decades-old debate over gene patenting in the United States reached a climax in June 2013 with the Supreme Court's decision in Association for Molecular Pathology v. Myriad Genetics. The Myriad case was remarkable for many reasons, not least of which because it engaged hundreds of scientists, physicians, patients, lawyers, activists, and policy makers, each expressing strong, often opposing, views regarding the case and gene patenting more generally From this multitude of voices emerged six distinct narratives, which I term the Science, Innovator, Administrative, Access, Dystopian, and Congestion narratives In this Article, I trace the origins of each of the narratives in Myriad from press accounts, published literature, and the extensive record in the case. I then assess how each narrative influenced and became incorporated into the resulting decisions. This analysis demonstrates the strong influence of narrative on judicial decisionmaking, not only in the area of gene patenting, but more broadly across common law jurisprudence.
      PubDate: Tue, 12 Dec 2017 09:43:51 PST
       
  • A Tribute to Dean Don Weidner

    • Authors: Rebecca Hanner White
      PubDate: Tue, 12 Dec 2017 09:43:47 PST
       
  • Don Weidner: Man of Action

    • Authors: Margaret "Peggy" A. Rolando
      PubDate: Tue, 12 Dec 2017 09:43:44 PST
       
  • Donald Weidner and the Modern Law of Partnerships

    • Authors: Robert W. Hillman
      PubDate: Tue, 12 Dec 2017 09:43:42 PST
       
  • In Appreciation: Don Weidner

    • Authors: Charles W. Ehrhardt
      PubDate: Tue, 12 Dec 2017 09:43:39 PST
       
  • A Rose by Any Other Name: Florida's Return to Consolidated-Tomoka

    • Authors: Jacqueline Van Laningham
      PubDate: Mon, 11 Dec 2017 09:08:16 PST
       
  • Embracing Third-Party Litigation Finance

    • Authors: David R. Glickman
      PubDate: Mon, 11 Dec 2017 09:08:13 PST
       
  • Six Degrees of Graduation: Law and Economics of Variable Sanctions

    • Authors: Alex Raskolnikov
      Abstract: From parking tickets to tax fines and punitive damages, legal sanctions matter in people’s lives. Yet neither the legal nor the economics literature offers a comprehensive treatment of sanctions. Their practical complexity is not well understood, and their theoretical analysis is fragmented. This Essay addresses both limitations using tax law as a primary example. Sanctions are complex because they vary along at least six different dimensions: aggressiveness, magnitude, culpability, effort to comply, likelihood of detection, and offense history. These six degrees of sanction graduation are distinct, and potentially independent, but often intertwined in obscure and perplexing ways. After clarifying the unique nature of each degree (or axis) of graduation, this Essay reviews the literature in search of the economic rationale for varying sanctions along each axis in light of the incentives such variation creates. I conclude that three graduation axes of great practical significance—aggressiveness, culpability, and offense history—are the least developed theoretically. Two other dimensions—the likelihood of detection and the effort to comply with the law—are more conceptually advanced, although the theory is still fairly removed from the enforcement realities. In contrast, economic analysis reveals a good grasp of the magnitude axis and a clear path to modelling the real-life features that have remained overlooked thus far. By highlighting the complexity of sanctioning regimes and emphasizing the related theoretical successes and shortcomings, this Essay identifies fruitful areas of future research, some of which I pursue in related work.
      PubDate: Mon, 11 Dec 2017 09:08:10 PST
       
  • Through the Lens of Innovation

    • Authors: Mirit Eyal-Cohen
      Abstract: The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of entrepreneurship. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Entrepreneurship turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviation as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Through specific legal classifications, it points to significant distortionary effects. It theorizes that a legal culture that wishes to entice entrepreneurship is one that requires legal agents to think like entrepreneurs. Thereafter, it offers a bridge between law and entrepreneurship by providing policymakers with tools to recognize its distinctive modus operandi.
      PubDate: Mon, 11 Dec 2017 09:08:07 PST
       
  • Overtreatment and Informed Consent: A Fraud-Based Solution to Unwanted and
           Unnecessary Care

    • Authors: Isaac D. Buck
      Abstract: According to multiple accounts, the administration of American health care results in as much as $800 billion in wasted spending due largely to the provision of overly expensive, inefficient, and unnecessary services. Beyond inflicting fiscal pain on the nation’s pocketbook, this waste has no clinical benefit—and often results in unnecessary hospital stays, cascading follow-up procedures, and time-wasting inconvenience for American patients. But aside from the mere annoyance of unnecessary care, the administration of overtreatment—that is, unnecessary care in and of itself—causes harm to the patient. Excessive care is deficient care. Unnecessary care risks potential medical error and infection, and often subjects the patient to excessive recovery and rehabilitation. In addition to the fiscal reasons, it is not a stretch to observe that it makes little or no sense for American patients to desire unnecessary care.But yet, as a general matter, today’s modern and patient-protective legal and bioethical framework governing American health care purportedly forcefully protects patients from undesirable care by requiring their informed consent before any procedure or service. The importance of informed consent is well settled, and it is recognized as a sacred value in American health care. In law and bioethics, this value is so sanctified that in cases where providers fail to achieve informed consent, legal recourse is available for the wronged patient.The prevalence of overtreatment, when juxtaposed with the sanctity of informed consent, is a perplexing legal and policy-based problem. Specifically, this disconnect that results— between the robust protection of informed consent and patient autonomy on one hand, and the nagging problem of undesirable and harmful overtreatment on the other—calls out for a reasoned legal resolution. While overtreatment plagues American health care, the legal academy has yet to creatively and sufficiently examine the role that the doctrine of informed consent, when coupled with the enforcement tools employed by the Department of Justice, could play in reining in unnecessary care.This Article fills that gap. By suggesting a path forward that bolsters the legal force of informed consent to provide a patient-centered “backstop” and thereby prevent unnecessary procedures in American health care, this Article argues that a stronger version of informed consent must contain the answer to the intractable problem of overtreatment. Building on previous scholarship that sought to impose different legal and policy-based controls on providers to prevent overtreatment, this piece shifts the focus to the other side of the hospital bed, making clear that viable legal tools are available to the federal government and can be employed to protect patients from undesirable care. The patient’s protections can be expanded in an effort to limit the injurious effects of American overtreatment.
      PubDate: Mon, 11 Dec 2017 09:08:03 PST
       
  • The Road to the Gettysburg Address

    • Authors: Alfred L. Brophy
      Abstract: This Article recovers the forgotten ideas about public constitutionalism in seventy published addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, to the addresses by Edward Everett and Abraham Lincoln at Gettysburg in November 1863. It reveals an important, but forgotten, set of ideas that provided a precedent for Lincoln’s Gettysburg Address. Those addresses, including Lincoln’s, reveal the centrality of constitutional values—as opposed to constitutional text—in framing Americans’ interpretation of the Constitution. Pre-Civil War Americans had a vibrant public discussion of constitutional principles, in addition to constitutional text. These were ideas propagated on such diverse occasions as July Fourth celebrations, arguments in the Supreme Court, dedication of public monuments, lyceum addresses, and college literary society lectures. For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation. Cemetery dedications are one place where Whigs turned to promote their constitutional values. The cemetery supported constitutional values of Union, respect for property, and obedience to the rule of law. Rural cemeteries promoted Whig constitutional ideals about order, patriotism, and Union. Those values were at the center of the debate over the response to secession and they were put into practice by soldiers along Cemetery Ridge at Gettysburg in 1863. Lincoln’s address at Gettysburg reflects the appeals to sentiment and Constitution that were so frequently invoked in the thirty years before the War. This hidden history reveals how those ideas mobilized support for Union and, thus, how public constitutional thought affected the actions of voters, jurists, and politicians.
      PubDate: Mon, 11 Dec 2017 09:07:59 PST
       
  • Deeds and the Determinancy Norm: Insights from Brandt and Other Cases on
           an Undesignated, Yet Ever-Present, Interpretive Method

    • Authors: Donald J. Kochan
      Abstract: The land one holds is generally only as good as the property rights contained in the deed. The rights contained in the deed are only as good as the ability to get those rights enforced. And, the enforcement is only valuable if it recognizes a determinate meaning in the deeds from the point of conveyance. This Article pens the term “determinacy norm” to explain a collection of rules for the interpretation of deed terms that aim to make the meaning of deed terms de-terminate. I contend that, in order to satisfy the determinacy norm for deed interpretation, courts must (and arguably do) interpret the terms in deeds and land grants as having a fixed meaning set contemporaneously with the transfer and based on the discernable intent and expectations of the parties at the time of the conveyance or grant. This norm runs through existing case law and is pivotal to facilitating an effective property system. But, courts have failed to recognize either the term (or even the organizing principle) that is the determinacy norm. As an illustrative example, some see the 2014 U.S. Supreme Court case of Brandt Revocable Trust v. United States as just a railroad right-of-way decision. But a closer look reveals that it is a good exemplar of courts striving to add determinacy to deeds and equivalent instruments like statutory land grants. Brandt reveals a pattern of U.S. Supreme Court jurisprudence that the Court itself is not adequately articulating where the determinacy norm lurks in the substructure of opinions.We should more directly recognize the determinacy norm’s presence in private deed and public land grant cases. Doing so will allow us to better monitor and check the actions of judges to be sure that they are living up to the constraints of the determinacy norm. Such monitoring will help us better identify and protect the rights in the deeds that help organize our property system.
      PubDate: Mon, 11 Dec 2017 09:07:55 PST
       
  • Voting is Association

    • Authors: Daniel P. Tokaji
      PubDate: Thu, 07 Dec 2017 14:59:36 PST
       
  • Rescuing Retrogression

    • Authors: Michael J. Pitts
      PubDate: Thu, 07 Dec 2017 14:59:32 PST
       
  • Legislative Delegations and the Elections Clause

    • Authors: Derek T. Muller
      PubDate: Thu, 07 Dec 2017 14:59:27 PST
       
  • Contingent Constitutionality, Legislative Facts, and Campaign Finance Law

    • Authors: Michael T. Morley
      Abstract: Many of the Supreme Court’s important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are “contingent” constitutional determinations: the Court’s conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts—particularly in the realm of campaign finance—require reform as well. Stare decisis purportedly insulates the Court’s purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, in contrast, be more susceptible to future revision. The facts underlying contingent holdings may change, litigants in a later case may present different evidence concerning those facts, social or technological developments may occur, new discoveries may be made, or a later court’s assessments or assumptions concerning those facts may differ. The Court’s campaign finance jurisprudence exhibits the opposite tendency of what theory would predict, however. The Court has proven much more willing to revisit its purely legal interpretations of the First Amendment than its constitutionally contingent holdings. Many of the Court’s campaign finance rulings pay insufficient attention to the importance of legislative facts. They reiterate holdings of prior cases as if they were pure declarations of law, without recognizing the underlying legislative facts upon which those holdings depend. This can lead future courts to overestimate these holdings’ binding force, overlooking their dependence on certain facts. Several cases also make critical assertions concerning legislative facts without citing support either in the record or from extrinsic sources. Perhaps the biggest impediment to the effective use of legislative facts in campaign finance cases is the vagueness of the decision rules the Court has crafted to implement the First Amendment in this field. Many of the Court’s doctrines turn on standards—for example, whether an act poses a risk of apparent corruption—that are vague, underdefined, and fail to provide litigants and future courts with sufficient guidance concerning the nature and extent of evidence necessary to satisfy them. Such indeterminacy allows courts to resolve campaign finance cases based primarily on subjective, ad hoc intuitions and preferences rather than provable legislative facts.
      PubDate: Thu, 07 Dec 2017 14:59:23 PST
       
  • Residency and Democracy: Durational Residency Requirements From the
           Framers to the Present

    • Authors: Eugene D. Mazo
      Abstract: After years of struggle, we no longer require property ownership, employ poll taxes, or force citizens to take literary tests to vote. The franchise is now also open to women, African Americans, and other groups that were previously disenfranchised. However, our states still prevent citizens from voting if they fail to meet a durational residency requirement. The states also impose lengthy durational residency requirements on candidates seeking public office. This Article examines the history of America’s durational residency requirements. It looks at the debates of the framers at the Constitutional Convention, at how state durational residency requirements were broadened in response to migration in the 1800s, and at how durational residency requirements were narrowed by the federal government and the Supreme Court in the 1970s. The result left a system in which durational residency requirements impact voters and candidates differently, and in which these requirements differ at the state and federal levels. In most states, durational residency requirements for voters have been substantially curtailed, while they remain on the books for candidates. To show how this impacts politics, this Article examines several high-profile durational residency contests. It also probes whether these requirements may ever be justified in American democracy.
      PubDate: Thu, 07 Dec 2017 14:59:18 PST
       
  • Quick and Dirty: The New Misreading of the Voting Rights Act

    • Authors: Justin Levitt
      Abstract: The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a ham-handed cartoon of the Voting Rights Act—substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands. This short and timely Article is the first to survey the ways in which multiple jurisdictions in this redistricting cycle have substituted a rough sketch of the Voting Rights Act for the real thing. It argues that while the actual statute is tailored and nuanced, appropriately calibrated for a millennial approach to race relations, the demographic shorthand has at its heart a profound and pernicious racial essentialism. Replacing the real statute with the imagined one has a detrimental policy impact—but perhaps more sinister, it also creates unnecessary constitutional danger for the Voting Rights Act as a whole. Courts must see the
      PubDate: Thu, 07 Dec 2017 14:59:13 PST
       
  • The Nineteenth Amendment Enforcement Power (But First, Which One is the
           Nineteenth Amendment, Again')

    • Authors: Steve Kolbert
      PubDate: Thu, 07 Dec 2017 14:59:09 PST
       
  • Race, Shelby County, and the Voter Information Verification Act in North
           Carolina

    • Authors: Michael D. Herron et al.
      Abstract: Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election- reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures— and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters have cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA; that blacks disproportionately have registered to vote during early voting and in the immediate run-up to Election Day, something VIVA now prohibits; that registered voters in the state who lack two VIVA-acceptable forms of voter identification, driver’s licenses and non-operator identification cards, are disproportionately black; that VIVA’s identification dispensation for voters at least seventy years old disproportionately benefits white registered voters; and, that preregistered sixteen and seventeen year old voters in North Carolina, a category of registrants that VIVA prohibits, are disproportionately black. These results illustrate how VIVA will have a disparate effect on black voters in North Carolina.
      PubDate: Thu, 07 Dec 2017 14:59:06 PST
       
  • Reining in the Purcell Principle

    • Authors: Richard L. Hasen
      PubDate: Thu, 07 Dec 2017 14:59:01 PST
       
  • The Coordination Fallacy

    • Authors: Michael D. Gilbert
      Abstract: This symposium piece tackles an important issue in campaign finance: the relationship between coordinated expenditures and corruption. Only one form of corruption, the quid pro quo, is constitutionally significant, and it has three logical elements: (1) an actor, such as an individual or corporation, conveys value to a politician, (2) the politician conveys value to the actor, and (3) a bargain links the two. Campaign finance regulations aim to deter quid pro quos by impeding the first or third element. Limits on contributions, for example, fight corruption by capping the value an actor can convey to a politician. What about limits on coordinated expenditures' By preventing coordination on large expenditures like television ads, the law turns very useful support into less useful support, reducing the value an actor can convey. But actors can surmount this with more money: $1 million spent on less useful ads can convey a lot of value, often more than smaller amounts spent on very useful ads or contributions. Limits on coordination may also inhibit bargaining, the third element of a quid pro quo, but again, sophisticated actors can surmount this: they can bargain without discussing the substance of any expenditures. So coordination regulations cannot deter much corruption, at least not when wealthy and sophisticated actors are involved, the very actors who cause the most concern. Consequently, coordination regulations may violate the Constitution. This is not because coordinated expenditures do not corrupt but because the regulations do not deter. Solving this problem requires more than a broader set of regulations. It requires confronting a fallacy at the heart of campaign finance: the belief that coordination relates in an operational way to corruption.
      PubDate: Thu, 07 Dec 2017 14:58:58 PST
       
  • A "Checklist Manifesto" for Election Day: How to Prevent
           Mistakes at the Polls

    • Authors: Joshua A. Douglas
      Abstract: Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election reforms, this idea is likely to gain traction and see actual implementation. That is because the idea is “non-legal” in nature, in that it comes from the private sector and is achievable outside of the political process. Given the structural impediments to legislative or judicial change, non-legal solutions such as the use of checklists are the way forward in election reform.
      PubDate: Thu, 07 Dec 2017 14:58:53 PST
       
  • The Law of Democracy at a Crossroads: Reflecting on Fifty Years of Voting
           Rights and the Judicial Regulation of the Political Thicket

    • Authors: Franita Tolson
      PubDate: Thu, 07 Dec 2017 14:58:50 PST
       
  • Is Personhood the Answer to Resolve Frozen Pre-Embryo Disputes'

    • Authors: Erica Steinmiller-Perdomo
      PubDate: Thu, 07 Dec 2017 10:51:38 PST
       
  • The Wellness Approach: Weeding Out Unfair Labor Practices in the Cannabis
           Industry

    • Authors: Taylor G. Sachs
      Abstract:

      PubDate: Thu, 07 Dec 2017 10:51:35 PST
       
  • Interpreting Force Authorization

    • Authors: Scott M. Sullivan
      Abstract: This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in favor of time. Consistent with armed conflict, functional needs, and constitutional norms, AUMF decay offers a model that harnesses the institutional advantages and interplay embedded in separation of powers regime. Properly, AUMF interpretation recognizes their peculiar role and lifespan as one that explodes into the legal landscape with supernova intensity and potency that, regardless of text, is just as surely followed by an accelerating decay that ultimately diminishes to complete inoperability.
      PubDate: Thu, 07 Dec 2017 10:51:31 PST
       
  • Taking Turns

    • Authors: Ronen Perry et al.
      PubDate: Thu, 07 Dec 2017 10:51:27 PST
       
  • Maximizing Utility in Electric Utility Regulation

    • Authors: Jonas J. Monast
      Abstract: The electric power sector is undergoing a period of profound change, reacting to economic, technological, and regulatory variables that have emerged quickly and largely without warning. In many states, the public utility commission (PUC) will play a key role in deter-mining how electric utilities respond to these rapidly changing circumstances, the outcome of which will affect electricity rates, investor returns, public health, and local and state economies for decades to come. The general mandate underlying many utility commission proceedings—seeking the least cost option for maintaining a reliable electricity sector—provides the PUC with considerable discretion to choose among sources of information, potential outcomes, and risk assessments. The least cost framework is generally treated as an objective standard, but a close examination of PUC decisions demonstrates the inherent subjectivity and the value choices com-missioners face when determining which electric utility decisions are in the public’s best interest. From a descriptive perspective, the effort to maximize societal benefits and minimize societal costs associated with electricity generation and delivery is, at its core, a utilitarian exercise. Like the concept of welfare maximization that lies at the heart of the classic utilitarian framework, the cost minimization goal seeks to produce the greatest good for the greatest number through an affordable and reliable electricity sector. From the normative perspective, accepting that PUC decision-making is a utilitarian exercise invites a critical assessment of whether PUCs are succeeding in implementing the least cost mandate. This Article provides an overview of PUC decision-making and the least cost framework, then examines the inherent discretion in the least cost mandate by analyzing four recent PUC decisions where commissioners reach opposing decisions based on the same set of facts. The Article concludes by proposing mechanisms for capturing broader societal benefits through an expanded application of the PUCs’ existing discretion.
      PubDate: Thu, 07 Dec 2017 10:51:24 PST
       
  • Presidential Control Across Policymaking Tools

    • Authors: Catherine Y. Kim
      Abstract: Over the past quarter century, administrative law scholars have observed the President’s growing control over agency policymaking and the separation-of-powers concerns implicated by such unilateral exercises of power. The paradigmatic form of agency policymaking—notice-and-comment rulemaking—mitigates these concerns by ensuring considerable oversight by the courts, Congress, and the public at large. Agencies, however, typically have at their disposal a variety of policymaking tools with which to implement White House goals, including the issuance of guidance documents and the strategic exercise of enforcement discretion. While commentators have drawn attention to the risk that agencies will circumvent the extensive checks associated with rulemaking by issuing a guidance document instead, this Article argues that the potential for an agency to forego both rulemaking and guidance documents in favor of the strategic exercise of enforcement discretion poses a greater threat of unchecked unilateral power. It presents a case study of the use of these different policymaking tools in the Department of Education’s Office for Civil Rights (OCR), finding that while agencies are able to weaken external checks on presidential policy preferences by employing guidance documents instead of rulemaking, they can virtually eliminate such checks by implementing White House goals through the strategic exercise of enforcement discretion. This Article closes by evaluating potential reforms to temper politically motivated exercises of enforcement discretion, focusing not only on external mechanisms of over-sight, but also on the role of the civil service bureaucracy within the agency itself.
      PubDate: Thu, 07 Dec 2017 10:51:20 PST
       
  • Privity's Shadow: Exculpatory Terms in Extended Forms of Private
           Ordering

    • Authors: Mark P. Gergen
      PubDate: Thu, 07 Dec 2017 10:51:17 PST
       
 
 
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