When Things Went Terribly, Terribly Wrong Part II
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The Large Professional Service Firm: a New Force in the Regulative Bargain
21 UNSW Law Journal Volume 40(1) 11 THE LARGE PROFESSIONAL SERVICE FIRM: A NEW FORCE IN THE REGULATIVE BARGAIN JUSTINE ROGERS, DIMITY KINGSFORD SMITH AND JOHN CHELLEW I INTRODUCTION This article charts the rise of a new force in the regulative bargain:1 the large organisation or ‘professional service firm’. The ‘regulative bargain’ refers to the bargain, both theoretical and real, 2 between the professions and the state, on behalf of society. Increasingly, these parties actively negotiate the exchange of professional benefits and responsibilities, and how, where and for what purpose these will be allocated and enforced. This bargain is shaped too by the political climate and culture, and the access to the networks within which this agreement takes place. 3 The classic bargain is the grant of self-regulation and other Lecturer, UNSW Law, MSc (Oxon), DPhil (Oxon). Correspondence to Dr Justine Rogers <[email protected]>. Professor and Director of the Centre for Law, Markets and Regulation (‘CLMR’), UNSW Sydney, LLM (London School of Economics) LLB (Sydney) BA (Sydney). Senior Research Fellow, UNSW Law. LLB (Monash), BA (Monash). Member of the CLMR, UNSW Law. The authors acknowledge the support of the Australian Research Council and the Professional Standards Councils for this work. They are also grateful for the support of professional partners to the grant, law firms Allens and Corrs Chambers Westgarth. The authors also acknowledge the support of the CLMR at UNSW Law, particularly the work of CLMR interns, Deborah Hartstein and Jason Zhang. They are also grateful for the considered comments of two anonymous referees. -
Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice
LONG (DO NOT DELETE) 3/11/2013 4:15 PM Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice Jerrold A. Long* ABSTRACT An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation appears consistent with a property rights meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to “protect” those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word choices, and definitions, have significant consequences, this assumed rhetorical landscape of a property dispute plays a significant role in determining the dispute’s ultimate outcome. In most land-use disputes, all participants make one important concession, or assertion, before the discussion begins. The often unchallenged assertion is the claim that the discussion is in fact about property rights. Once a particular property interest is characterized as a “right,” the community’s political capacity to regulate that property interest diminishes substantially. Consequently, our decisions to characterize as “rights” those settings, circumstances and relationships that are better and more accurately understood as “privileges” changes our focus from the * Jerrold A. Long is an Associate Professor of Law and an Affiliate Professor in the Bioregional Planning and Community Design and Water Resources programs at the University of Idaho. -
The Majoritarian Difficulty and Theories of Constitutional Decision Making
THE MAJORITARIAN DIFFICULTY AND THEORIES OF CONSTITUTIONAL DECISION MAKING Michael C. Dorf* Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the “counter-majoritarian difficulty.” Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel’s worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses? Do American courts, in other words, have a “majoritarian difficulty?” This Article examines that question from an interpretive perspective. It asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court’s inability to act in a strongly counter-majoritarian fashion. After highlighting difficulties with three of the leading approaches to constitutional interpretation— representation-reinforcement, originalism, and living constitutionalism—the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias. However, such third-legislative-chamber accounts rest on libertarian premises that lack universal appeal. They also lack prescriptive force, although this may be a strength: Subordinating an interpretive theory—such as representation-reinforcement, originalism, or living constitutionalism—to a view of judicial review as a form of third-legislative-chamber veto can ease the otherwise unrealistic demands for counter-majoritarianism that interpretive theories face. -
Alexander Bickel's Philosophy of Prudence
The Yale Law Journal Volume 94, Number 7, June 1985 Alexander Bickel's Philosophy of Prudence Anthony T. Kronmant INTRODUCTION Six years after Alexander Bickel's death, John Hart Ely described his former teacher and colleague as "probably the most creative constitutional theorist of the past twenty years."" Many today would concur in Ely's judgment.' Indeed, among his academic peers, Bickel is widely -regarded with a measure of respect that borders on reverence. There is, however, something puzzling about Bickel's reputation, for despite the high regard in which his work is held, Bickel has few contemporary followers.' There is, today, no Bickelian school of constitutional theory, no group of scholars working to elaborate Bickel's main ideas or even to defend them, no con- tinuing and connected body of legal writing in the intellectual tradition to which Bickel claimed allegiance. In fact, just the opposite is true. In the decade since his death, constitutional theory has turned away from the ideas that Bickel championed, moving in directions he would, I believe, f Professor of Law, Yale Law School. 1. J. ELY, DEMOCRACY AND DISTRUST 71 (1980). 2. See B. SCHMIDT, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE JUDICI- ARY AND RESPONSIBLE GOVERNMENT 1910-21 (pt. 2) 722 (1984) (describing Bickel as "the most brilliant and influential constitutional scholar of the generation that came of age during the era of the Warren Court"); Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1014 (Bickel "revered as spokesman-in-chief for a school of thought that emphasizes the importance of judicial restraint"). -
Network Map of Knowledge And
Humphry Davy George Grosz Patrick Galvin August Wilhelm von Hofmann Mervyn Gotsman Peter Blake Willa Cather Norman Vincent Peale Hans Holbein the Elder David Bomberg Hans Lewy Mark Ryden Juan Gris Ian Stevenson Charles Coleman (English painter) Mauritz de Haas David Drake Donald E. Westlake John Morton Blum Yehuda Amichai Stephen Smale Bernd and Hilla Becher Vitsentzos Kornaros Maxfield Parrish L. Sprague de Camp Derek Jarman Baron Carl von Rokitansky John LaFarge Richard Francis Burton Jamie Hewlett George Sterling Sergei Winogradsky Federico Halbherr Jean-Léon Gérôme William M. Bass Roy Lichtenstein Jacob Isaakszoon van Ruisdael Tony Cliff Julia Margaret Cameron Arnold Sommerfeld Adrian Willaert Olga Arsenievna Oleinik LeMoine Fitzgerald Christian Krohg Wilfred Thesiger Jean-Joseph Benjamin-Constant Eva Hesse `Abd Allah ibn `Abbas Him Mark Lai Clark Ashton Smith Clint Eastwood Therkel Mathiassen Bettie Page Frank DuMond Peter Whittle Salvador Espriu Gaetano Fichera William Cubley Jean Tinguely Amado Nervo Sarat Chandra Chattopadhyay Ferdinand Hodler Françoise Sagan Dave Meltzer Anton Julius Carlson Bela Cikoš Sesija John Cleese Kan Nyunt Charlotte Lamb Benjamin Silliman Howard Hendricks Jim Russell (cartoonist) Kate Chopin Gary Becker Harvey Kurtzman Michel Tapié John C. Maxwell Stan Pitt Henry Lawson Gustave Boulanger Wayne Shorter Irshad Kamil Joseph Greenberg Dungeons & Dragons Serbian epic poetry Adrian Ludwig Richter Eliseu Visconti Albert Maignan Syed Nazeer Husain Hakushu Kitahara Lim Cheng Hoe David Brin Bernard Ogilvie Dodge Star Wars Karel Capek Hudson River School Alfred Hitchcock Vladimir Colin Robert Kroetsch Shah Abdul Latif Bhittai Stephen Sondheim Robert Ludlum Frank Frazetta Walter Tevis Sax Rohmer Rafael Sabatini Ralph Nader Manon Gropius Aristide Maillol Ed Roth Jonathan Dordick Abdur Razzaq (Professor) John W. -
F. Scott Baldwin Research Professor in Law • University of Texas School of Law 727 E
SEAN HANNON WILLIAMS F. Scott Baldwin Research Professor in Law • University of Texas School of Law 727 E. Dean Keeton St. • Austin, TX 78705 • (512) 232-1353 • [email protected] ACADEMIC EXPERIENCE University of Texas School of Law. Austin, TX F. Scott Baldwin Research Professor in Law 2017-present Professor of Law 2013-2017 Assistant Professor 2008-2013 Courses: Torts, Contracts, Family Law, Behavioral Law and Economics. Harvard Law School. Cambridge, MA 2007-2008 Research Fellow, Center on Lawyers & the Professional Services Industry Harvard Law School. Cambridge, MA 2005-2007 Climenko Fellow and Lecturer on Law EDUCATION University of Chicago Law School. JD 2004 High Honors, Order of the Coif, University of Chicago Law Review Beale Prize for Outstanding Written Work, Best Advocate Award for Appellate Brief Haverford College. BA, Sociology 1995 PUBLICATIONS Gossip and Gore: A Ghoulish Journey into a Philosophical Thicket, 116 MICH. L. REV. 1187 (2018) (reviewing DON HERZOG, DEFAMING THE DEAD). Divorce All the Way Down: Local Voice and Family Law’s Democratic Deficit, 98 B.U. L. REV. 579 (2018). Reviewed by Kaipo Matsumura in The Journal of Things We Like (Lots), Family Law’s Democratic Foundations, JOTWELL (May 25, 2018), at https://family.jotwell.com/family-laws-democratic- foundations/ Wildflowers in the Swamp: Local Rules and Local Family Law, 65 DRAKE L. REV. 781 (2017). Sex in the City, 43 FORDHAM URBAN L. J. 1107 (2016). Reviewed by Richard Briffault. Dead Children, 67 ALABAMA L. REV. 739 (2016). Probability Errors: Over-Optimism, Ambiguity Aversion, and the Certainty Effect, in THE OXFORD HANDBOOK ON BEHAVIORAL ECONOMICS AND THE LAW (2014). -
Fred Smith, Jr. Associate Professor of Law [email protected] Emory
Emory University School of Law Gambrell Hall 1301 Clifton Road Tel 404.727.6006 Fax 404.727.6816 Fred Smith, Jr. Associate Professor of Law [email protected] ACADEMIC APPOINTMENTS Emory University, School of Law—Atlanta, GA Associate Professor of Law (with tenure) 2017-Present Visiting Professor of Law 2015-2017 Courses: Federal Courts, Constitutional Law, Local Government Awards: Outstanding Professor of the Year (2019) Columbia University, School of Law—New York, NY Visiting Professor of Law Fall 2022 University of Chicago, School of Law—Chicago IL Visiting Associate Professor of Law Fall 2020 Walter V. Schaefer Visiting Associate Professor of Law Fall 2018 Course: Federal Courts University of California, Berkeley Law School— Berkeley, CA Assistant Professor of Law 2010- 2017 Courses: Federal Courts, Constitutional Law, Constitutional Litigation EDUCATION Stanford Law School, J.D., 2007 Honors: Kirkwood Moot Court Finalist; American Constitutional Society National Moot Court Finalist; American College of Trial Lawyers National Trial Competition, National Quarterfinalist Harvard University, B.A. in Sociology and Afro-American Studies, 2004 Honors: Magna Cum Laude Honors Thesis JUDICIAL CLERKSHIPS The Honorable Sonia Sotomayor 2013-14 United States Supreme Court—Washington, D.C. The Honorable Barrington Parker 2009-10 United States Court of Appeals, Second Circuit—New York, NY The Honorable Myron H. Thompson 2007-08 Middle District of Alabama— Montgomery, AL LAW REVIEW PUBLICATIONS On Time, (In)equality, and Death, 120 MICH. L. REV. ___ (2021) (forthcoming) Federalism in the States, 2021 WIS. L. REV. __ (2021) (forthcoming) (invited symposium) The Constitution After Death, 121 COLUM. L. REV 1471 (2020) Remediating Resistance, 71 ALA. -
Efficiency, Utility, and Wealth Maximization Jules L
Hofstra Law Review Volume 8 | Issue 3 Article 3 1980 Efficiency, Utility, and Wealth Maximization Jules L. Coleman Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Recommended Citation Coleman, Jules L. (1980) "Efficiency, Utility, and Wealth Maximization," Hofstra Law Review: Vol. 8: Iss. 3, Article 3. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol8/iss3/3 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Coleman: Efficiency, Utility, and Wealth Maximization EFFICIENCY, UTILITY, AND WEALTH MAXIMIZATION Jules L. Coleman* CONTENTS I. EFFICIENCY AND UTILITY ......................... 512 A. The Pareto Criteria ............................ 512 B. Kaldor-Hicks ........................... 513 C. The Pareto Standards and Utilitarianism ......... 515 1. Pareto Superiority ......................... 515 2. Pareto Optimality ......................... 517 D. Kaldor-Hicks and Utility ....................... 518 II. THE CONCEPTUAL BASIS OF WEALTH MAXIMIZATION . 520 A. Wealth and Efficiency ......................... 521 B. Consequences of the Reliance of Wealth on Prices . 523 1. Exchange ................................ 523 2. Scarcity .................................. 524 3. Theoretical Incompleteness ................. 524 4. Assigning Basic Entitlements ............... 524 5. Circularity -
Method and Principle in Legal Theory
Book Review Method and Principle in Legal Theory Stephen R. Perryt The Practice of Principle: In Defence of a PragmatistApproach to Legal Theory. By Jules L. Coleman.* Oxford. Oxford University Press, 2001. Pp. 226. $39.95. Jules Coleman is an exceptionally distinguished legal theorist who has made significant contributions to many different fields in legal and political philosophy, but he is particularly well known for his work in tort theory and in jurisprudence. In tort theory, he has offered a powerful and sustained defense of the view that tort law is best understood by reference to the principle of corrective justice.' In jurisprudence, he is one of the two most prominent contemporary legal positivists-the other is Joseph Raz-and also the leading proponent of the view that has come to be known as inclusive legal positivism.2 That view holds that while a particular legal system's criteria of legality-the criteria that determine which norms are to count in the system as legal norms-must be grounded in a social convention of a certain kind, the criteria themselves need not refer exclusively to social sources; contrary to what Raz has argued, the sources of law can also be moral in character. t John J. O'Brien Professor of Law and Professor of Philosophy, University of Pennsylvania Law School. I would like to thank the participants in a workshop at Duke Law School for their helpful comments on an earlier draft of this Review. * Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy, Yale University. 1. See, e.g., JULES L. -
GUHA KRISHNAMURTHI 811 4Th Street, NW, Apt
GUHA KRISHNAMURTHI 811 4th Street, NW, Apt. 904 | Washington, D.C. 20001 | [email protected] | (918) 360-2939 | (he) Academic Positions South Texas College of Law, Houston, TX Assistant Professor of Law, August 2020–Present Teaching: Criminal Law (Fall 2020, Spring 2021), Criminal Procedure (Spring 2021) Harvard Law School, Cambridge, MA Climenko Fellow and Lecturer in Law, August 2018–July 2020 Teaching: Legal Research and Writing, Intersections of Criminal Law and Tort Education The University of Texas School of Law, J.D., May 2010, with High Honors 2010 Chancellors; Order of the Coif TEXAS LAW REVIEW, Book Review Editor, Volume 88 AMERICAN JOURNAL OF CRIMINAL LAW, Manuscript Editor, Volume 36 Teaching Assistant for Criminal Law; Contracts; Legal Research and Legal Writing Dean’s Achievement Awards in Criminal Law and Torts Supreme Court Clinic; National Security Clinic Student–Faculty Appointments Committee, Student Representative The University of Texas, Dept. of Philosophy, M.A. Philosophy, May 2007 Teaching Assistant Fellowship, August 2005–May 2007 Training in Sanskrit at Kuppuswami Sastri Research Institute (Chennai, TN, India) The University of Michigan, Dept. of Mathematics, M.S. Mathematics, May 2005 2005 Angell Scholar Teaching Assistant Fellowship in Dept. of Philosophy, January 2005–May 2005 The University of Michigan, B.S. Mathematics, May 2004, with High Distinction 2004 Angell Scholar Clerkships Honorable Goodwin H. Liu, Supreme Court of California, San Francisco, CA August 2017–August 2018 Honorable Andrea R. Wood, U.S. District Court for N.D. Ill., Chicago, IL September 2016–August 2017 Honorable Diane P. Wood, U.S. Court of Appeals for the Seventh Circuit, Chicago, IL August 2010–August 2011 Krishnamurthi Publications & Working Papers The Case for the Abolition of Criminal Confessions (working paper 2020). -
Robert P Merges What Kind of Rights Are Intellectual Property Rights?
Robert P Merges What Kind of Rights Are Intellectual Property Rights? Forthcoming in Rochelle C Dreyfuss & Justine Pila (eds), The Oxford Handbook of Intellectual Property Law © RP Merges 2017 Table of Contents 1. Intellectual Property as a Right 1.1 Intellectual Property Rights Are Property Rights 1.2 The Basic Features of Intellectual Property as Property 1.2.1 The Right to Control Uses 1.2.2 The Right to Transfer 1.2.3 The Special Case of Waiver 1.3 Limitations on Intellectual Property Rights 2. What Kind of Rights? Hohfeld and Intellectual Property 2.1 Claim Right/Duty 2.2 Privilege/No Claim 2.3 Power/Liability 2.4 Immunity/Disability 2.5 Hohfeld: Conclusion 3. Obstacles to Conceiving Intellectual Property as Property 3.1 Intellectual Property Acquisition and Misunderstandings About What it Means to be a Right 3.2 What, No Automatic Injunction? That’s Not Property! 3.3 Why Intellectual Property Rights Are Not ‘Regulation’ 3.3.2 The Second Sense of ‘Regulation’ 3.3.3 Freedom and Permission 3.3.4 Freedoms in Historical Perspective 3.4 Intellectual Property Rights as Property Rights: Summing Up 4. Problems With Conceiving Intellectual Property as Property 4.1 Group Ownership 4.2 Intellectual Property As Constitutional Property: The Takings Problem 5. Conclusion 1. Intellectual Property Rights as Rights Electronic copy available at: https://ssrn.com/abstract=2959073 The phrase is common enough that it rolls off the tongue: intellectual property rights. It even has a well-known acronym, ‘IPRs.’1 But are they really rights? And if so, what kind of rights? Most importantly, what difference does it make that they are rights – what practical import does this carry? These are the questions I take up here. -
What Is Obviously Wrong with the Federal Judiciary, Yet Eminently Curable Part I
WHAT IS OBVIOUSLY WRONG WITH THE FEDERAL JUDICIARY, YET EMINENTLY CURABLE PART I Richard A. Posner† REALIZE I’VE GOTTEN a not entirely welcome – though not entirely undeserved – reputation as a maverick, naysayer, scoffer, gadfly, faultfinder – in short a committed candid critic of the American legal system,1 and in particular of the federal judiciary, the branch of the Isystem that I know best, having been a federal court of appeals judge for the past 34 years, and that I hammer most frequently. My just-published book Divergent Paths: The Academy and the Judiciary (2016) will cement that reputation. What is odd is that most of the criticism I receive is of my writings or speeches about the judicial process, as exemplified by this article. Criticisms of my judicial opinions are rare, even though I have written more than 3100 published opinions in my 34 years as a federal appellate judge. And such criticisms as the opinions do receive differ in tone and content from the † Richard Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. 1 See, e.g., Lincoln Caplan, “Rhetoric and Law: How the productive, contentious, prodigious Richard A. Posner became one of America’s most influential judges,” Harvard Magazine, Feb. 2016, p. 49, www.harvardmagazine.com. 19 GREEN BAG 2D 187 Richard A. Posner criticisms of my extrajudicial comments on the judicial process. Criticisms of my opinions tend to focus on my citing Internet websites in them. In the present article, however, and its sequel (Part II, to be published in the next issue of this journal), I try to retreat some distance from controver- sy by confining my discussion to those features of the federal judicial process that are at once demonstrably unsound and readily corrigible without need for federal legislation or radical changes in legal doctrines or practices.