Justifying the Law-Equity Divide Article
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Marco Jimenez, Justifying the Law-Equity Divide, 2016 Jotwell 178 (2016)Clicking on the button will copy the full recommended citation.
2016
A locked iPhone; Unlocked Corporate Constitutional Rights Article
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Ciara Torres-Spelliscy, A locked iPhone; Unlocked Corporate Constitutional Rights, 164 U. Pa. L. Rev. 287 (2016)Clicking on the button will copy the full recommended citation.
Resolving Conflicts over Scarce Resources: Private versus Shared Ownership Article
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Will Bunting, Resolving Conflicts over Scarce Resources: Private versus Shared Ownership, 99 Marq. L. Rev. 893 (2016)Clicking on the button will copy the full recommended citation.
This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem (as defined here) to be consistent, private ownership must yield the Pareto-optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing” parties to share ownership of a contested scarce resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Provided transaction costs are high and shared ownership is socially-optimal, a role for the courts is suggested wherein de facto shared ownership is established by rendering private property rights random or unclear — judicial behavior that stands in contrast to the normative implications of the Coase Theorem.
Marriage, Monogamy, and Affairs: Reassessing Intimate Relationships in Light of Growing Acceptance of Consensual Non-Monogamy Article
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Linda S. Anderson, Marriage, Monogamy, and Affairs: Reassessing Intimate Relationships in Light of Growing Acceptance of Consensual Non-Monogamy, 22 Wash. & Lee. J. C.R. & Soc. Just. 3 (2016)Clicking on the button will copy the full recommended citation.
Rhetorical Criticism as Essential Legal Skill: Some Thoughts on Developing Lawyers as “Public Citizens” Article
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Kirsten K. Davis, Rhetorical Criticism as Essential Legal Skill: Some Thoughts on Developing Lawyers as “Public Citizens”, 16 Communication Law Review 43 (2016)Clicking on the button will copy the full recommended citation.
The Model Rules of Professional Conduct for lawyers, upon which nearly all fifty state supreme courts base their legal ethics codes, direct lawyers to pursue the public good in their role as "public citizen[s] with special responsibility for justice." Yet, the lawyer as a public citizen is undertheorized in the literature and is not the focus of legal education. And even if this role is deemed important, questions remain of what, exactly, is the lawyer's responsibility as a "public citizen" and what skills a lawyer should possess to fulfill this role.
This essay first describes how the Model Rules of Professional Conduct — the lawyer's ethical rules — rhetorically construct the public citizen role but offer little on how the lawyer should implement this role in her professional life. It then offers how others have attempted to put flesh on the bones of the "public citizen" role so as to have as complete a view as possible of what that role means for lawyers. It explains the generally well-accepted view that law schools have largely failed to teach skills and instill values related to lawyers' roles as public citizens. And, finally, it argues that teaching rhetorical criticism skills in law school can play a central part in giving lawyers the intellectual skills to perform their roles as fiduciaries of the rule of law and participatory democracy and to understand themselves as moral actors in the public sphere.
Corporate Citizen?: An Argument for the Separation of Corporation and State Book
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Ciara Torres-Spelliscy, Corporate Citizen?: An Argument for the Separation of Corporation and State (Carolina Academic Press, 2016)Clicking on the button will copy the full recommended citation.
Transparency and Policymaking at the Supreme Court Article
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Louis J. Virelli, Transparency and Policymaking at the Supreme Court, 32 Ga. St. U. L. Rev. 903 (2016)Clicking on the button will copy the full recommended citation.
Transparency is undoubtedly an important principle in a democratic government. It is not, however, necessarily a one-size-fits-all proposition. This holds true for issues of transparency at the Supreme Court. Whereas the Court’s traditional adjudicative responsibilities fit comfortably within norms of transparent decision making like publishing written opinions in merits cases, some of its other, more policy-oriented roles do not. This short paper considers two areas in which the Court’s activities more closely resemble policy judgments than traditional adjudication — certiorari and recusal — and uses them as examples of how the nature of the Court’s activity can impact the value of transparency in that activity. It does not seek to prove that transparency is per se less valuable in certiorari and recusal decisions, but rather to highlight the highly discretionary nature of those decisions and to propose that granting such a high degree of latitude to the Court also triggers some of the protections, like the deliberative process privilege, that are more commonly associated with policymaking by administrative agencies. The result is a call for a more context-based dialogue about transparency at the Court in hopes of promoting both our democratic values and the legitimacy of one of our most important institutions.
Avoid-Mitigate-Compensate Sequence: Wetland Conservation Book Chapter
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Royal C. Gardner, Avoid-Mitigate-Compensate Sequence: Wetland Conservation, in The Wetland Book (C. Max Finlayson et al. eds., 2016)Clicking on the button will copy the full recommended citation.
Not So Friendly to Frenville: The Split Among Courts Regarding Accrual of Claims in Bankruptcy Article
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Theresa J. Pulley Radwan, Not So Friendly to Frenville: The Split Among Courts Regarding Accrual of Claims in Bankruptcy, 68 Baylor L. Rev. 728 (2016)Clicking on the button will copy the full recommended citation.
Compensation in Wetlands Book Chapter
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Royal C. Gardner, Compensation in Wetlands, in The Wetland Book (C. Max Finlayson et al. eds., 2016)Clicking on the button will copy the full recommended citation.