The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

Jed Rubenfeld

While the version of this Article published in the Yale Law Journal explains the history of American sex law, grapples with traditional justifications for excluding rape-by-deception from rape law, and maps the main options available to rape law once its difficulties are exposed, this Article jumps right to the… Read More »

Courts as Managers: Summary Disposition at the Roberts Court

Alex Hemmer

Summary disposition at the Supreme Court presents a puzzle. Appellate courts generally act in two capacities: a lawmaking capacity, in which they announce, clarify, and harmonize the rules of decision employed by the legal system in which they serve; and an error-correction capacity, in which they determine if prejudicial errors… Read More »

  • 24 December 2012

Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes

Josh Bendor & Miles Farmer

Administrative law scholarship focuses almost exclusively on federal agencies implementing federal laws. Yet state agency implementation of federal statutes—cooperative federalism—is an integral part of our administrative state in fields ranging from environmental law to health care to education. When state agencies are sued for violating cooperative federalism statutes they administer,… Read More »

Contra Nemo Iudex in Sua Causa: The Limits of Impartiality

Invoked by the U.S. Supreme Court in diverse cases, the maxim nemo iudex in sua causa—no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. Despite its undoubted appeal, however, the maxim is a misleading half-truth. Sometimes rulemakers in… Read More »

The Artist as Brand: Toward a Trademark Conception of Moral Rights

Xiyin Tang

“Moral rights” is an eyebrow-raising phrase in American legal discourse. Tinged with strong personhood rhetoric—and frighteningly despotic in their very name—moral rights seem directly opposed to the economic justifications underlying U.S. intellectual property law. Yet, no longer relegated to European countries, moral rights landed on American shores over twenty years… Read More »

Recognizing Character: A New Perspective on Character Evidence

Barrett Anderson

The Federal Rules of Evidence regulate proof of character because courts have historically viewed character evidence as unfairly prejudicial. But in order to know whether or not to apply these rules, courts must know what is, and what is not, character proof. Past attempts by courts and commentators to define… Read More »

“Done in Convention”: The Attestation Clause and the Declaration of Independence

Jesse Cross

At the close of the Constitution approved by the Constitutional Convention in 1787, there is a short clause indicating the date on which—as well as the location where—the Constitution was concluded and signed. Known as the Attestation Clause, it recorded the date of the Constitution’s completion—and it did so in… Read More »

The Twenty-Sixth Amendment Enforcement Power

Eric S. Fish

The conventional story of the Twenty-Sixth Amendment is that it lowered the voting age to eighteen for all state and federal elections – nothing more and nothing less. The measure was enacted in 1971, and is viewed largely as a product of the Vietnam War. Men as young as eighteen… Read More »

Outcasting: Enforcement in Domestic and International Law

Oona A. Hathaway & Scott J. Shapiro

Is international law law? Though leading scholars have said that it is “futile” whether international law is law in fact matters a great deal. Most fundamentally, it matters from the moral point of view. Law’s moral import follows from a basic truth accepted by… Read More »

The Solicitor General of the United States: Tenth Justice or Zealous Advocate?

Adam D. Chandler

The federal government loses hundreds of cases in the federal courts of appeals each year, but the Solicitor General selects only a handful of those cases—just fifteen or so—to petition the Supreme Court to review. Acting as the final “decider” on the overwhelming majority of federal appeals, the Solicitor General… Read More »

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