This Article explores the conceptions of responsible agency that informed legal analysis in nineteenth-century America. Standing behind the “reasonable man” famously drawn by Oliver Wendell Holmes, Jr., there was a second figure, which I call the “default legal person,” who personified mental attributes an individual needed to possess— at a minimum—in order to be deemed a legally accountable...
The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny...
The No Child Left Behind Act (the Act or NCLB) was enacted with the laudable aim of improving education through a system of accountability for schools and school districts. The Act provides for a system of escalating punishments for schools that fail to make adequate yearly progress toward the goal of full student proficiency in core subjects. One of the options that districts have for dealing...
Mediation offers enticing advantages over adversarial systems for the resolution of commercial disputes. Mediation preserves party autonomy by vesting process development and final-decision authority in the hands of the disputing parties. Despite these benefits, businesses underutilize mediation in international settings in part because of unpredictable enforcement practices predicated on varied...
In recent years, hostility against judges who invoke foreign law in constitutional cases has escalated dramatically. Comparative approaches are presumed to present a significant threat to democratic accountability. In addition, judges have been faulted for failing to articulate objective criteria for selecting foreign authorities. The issue, however, is more nuanced than critics tend to...
The structure of constitutional rights in the United States and most other countries grants to legislatures a limited power to override rights when they conflict with certain public policy objectives. This limited override power contrasts with an absolute one, as enshrined in section 33 of the Canadian Charter of Rights and Freedoms, and is also both general and noninterpretive in nature, unlike...
The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes—some have sought to remove barriers to entry while others have sought to impose limits on the business. As is...
This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are...
Over the past several decades, two of the most significant developments in landlord-tenant law have been the establishment of the implied warranty of habitability and the advent of landlord tort liability for third-party criminal acts against tenants. For the most part, the implied warranty of habitability and landlord liability for third-party criminal acts were created by separate movements...
Five years ago, in Zelman v. Simmons-Harris, the U.S. Supreme Court upheld the constitutionality of a Cleveland program that provided school vouchers to low-income parents seeking private school alternatives for their children. Zelman was heralded as of great historical significance when it was decided. Yet, in the years since Zelman, school vouchers have made little political headway—only three...
The common law and federal regulations create overlapping legal regimes that require researchers to obtain the informed consent of most human subjects of medical research. The fast-growing field of biomedical research generally, and stem cell research in particular, gives rise to a range of unresolved and contested legal issues concerning the extent and implementation of the informed consent...
This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses—family and special professional relationships are obvious ones—but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of...
The issue of pharmacists refusing to dispense birth control or emergency contraception recently has become a major debate in the battle over reproductive rights. Several states have enacted legislation to protect refusing pharmacists, and many more are considering such laws. I explore these new laws against the backdrop of the existing legal landscape governing the actions of pharmacists...
Virtual worlds, and the subset known as massively multiplayer online games, have grown in popularity to encompass tens of millions of participants and billions of dollars in revenues per year. Participants make sizable investments of social, human, and economic capital in these virtual worlds, often with the questionable expectation that the items they have collected and creations they have...