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Peter Lake, Student Discipline: The Case Against Legalistic Approaches, 56 Chronicle of Higher Education A31 (2009)Clicking on the button will copy the full recommended citation.
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Stephanie Vaughan, Persuasian is an Art . . . But It is Also an Invaluable Tool in Advocacy, 61 Baylor L. Rev. 635 (2009)Clicking on the button will copy the full recommended citation.
The article is about persuasion. It highlights the origins of advocacy, details how to write persuasive documents, and provides tips for presenting persuasive oral arguments. Appendices include practical checklists for editing and preparing for oral arguments, and a list of style tips. This Article is important because it gives advocates the tools they need to better prepare for making persuasive arguments, both in writing and orally, while grounding the “art of persuasion” in rhetoric and ancient-Greek philosophies and teachings.
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Paul Boudreaux, Homes, Rights and Communities, 20 U. Fla. J.L. & Pub. Pol'y 479 (2009)Clicking on the button will copy the full recommended citation.
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Kristen David Adams, Do We Need a Right to Housing?, 9 Nev. L.J. 275 (2009)Clicking on the button will copy the full recommended citation.
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Ciara Torres-Spelliscy, A Bench That Looks Like America: Diversity Among Appointed State Court Judges, 48 Judges' Journal 12 (2009)Clicking on the button will copy the full recommended citation.
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Kristen David Adams, Promise Enforcement in Mortgage Lending: How U.S. Borrowers and Lenders Can See Themselves as Part of a Shared Goal, 28 Rev. Banking & Fin. L. 507–52 (2009)Clicking on the button will copy the full recommended citation.
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Rebecca C. Morgan, The New Importance of Advance Directives, 2 Estate Planning and Community Property Law Journal 1 (2009)Clicking on the button will copy the full recommended citation.
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Andrew D. Appleby and Jonathan T. Edwards, The Twilight Zone of Insolvency: New Developments in Fiduciary Duty Jurisprudence that May Affect Directors and Officers in the Zone of Insolvency, 18 Norton Journal of Bankruptcy Law and Practice 3 Art. 2 (2009)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, Legal Questions for the Psychology of Home, 83 Tul. L. Rev. 645 (2009)Clicking on the button will copy the full recommended citation.
Intuitions often play a significant role in shaping debate about legal issues. This is particularly the case when homes and homeownership are involved, because the experience of everyday life gives lawyers and legal scholars a foundation for intuitive judgment. Intuitions, however, can be unreliable and misleading. They therefore provide a shaky basis for legal decisionmaking.
This brief essay, published as part of a special issue on Property and Psychology, begins by suggesting that the legal academy should follow the lead of the Experimental Philosophy movement and actively solicit empirical research on human behavior relevant to legal issues. It then describes a series of legal issues relating to the home that could benefit from this type of research, and concludes by suggesting that researchers interested in the psychology of home seek collaborators within the legal academy to develop legally-informed empirical studies.
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D. Benjamin Barros, Property and Freedom, 4 N.Y.U. J.L. & Liberty 36 (2009)Clicking on the button will copy the full recommended citation.
Private property is often defended on the basis that it promotes individual freedom. Discussion of this subject has typically taken place in the context of contentious debates over the legitimacy of government interference with private property, especially government regulation of land use and redistributive taxation. Pro-property, anti-interference advocates tend to suggest that there is a strong relationship between property and freedom. Those on the other side of the debate tend to be more skeptical. The political philosopher G.A. Cohen, for example, has asserted that "the familiar idea that private property and freedom are conceptually connected is an ideological illusion."
In this Essay, I argue against both sides of this intractable debate. Property and freedom are inextricably linked, but a strong relationship between property and freedom does not immunize property from government interference. To support these positions, I shift the discussion of property and freedom away from debates about the inviolability of property, and focus instead on the institutional relationship between property and freedom. Accordingly, I focus on two questions that have often been neglected in the heat of the debate over government interference with property: to what degree does the institution of private property protect individual freedom, and to what degree is individual freedom possible without the institution of private property?
Property as an institution promotes individual freedom in three ways: by creating a zone of individual autonomy and privacy; by distributing power; and by providing access to the resources that people need to be free. The discussion of these institutional connections between property and freedom draws out three important substantive points. First, individual freedom depends, in an institutional sense, on private property. Second, because the relationship between property and freedom is complex, different types of property (e.g., land versus money) and different aspects of property ownership (e.g., the ability to exclude others versus the ability to transfer to another owner) promote freedom in different ways. Third, and most importantly, the relationship between property and freedom in this context may be used to support, rather than oppose, arguments for the redistribution of property. Indeed, a strong connection between property and freedom can be maintained without any reference whatsoever to libertarian or other theories that hold that property rights should be immune from state interference.
Using these relationships between property and freedom, I then critique two of John Rawls's positions on property. Rawls asserted that the basic liberties protected by his First Principle of Justice include the right to hold personal property, but not productive property; and that either a property-owning democracy or a liberal socialist regime could comport with his two principles of justice. In my critique of Rawls, I first explain why the concept of freedom embodied by the First Principle of Justice provides a better defense of private property than the inequality allowed by the so-called difference principle in the Second Principle of Justice. I then use the connections between property and freedom discussed earlier in the Essay, and Rawls's own positions on freedom, to argue that Rawls's positions on property are wrong, that the First Principle must include the right to hold productive property, and that therefore only a property-owning democracy would satisfy the requirements of the two principles of justice.