By David Fagundes. Full text here. Those who prefer broad intellectual property rights often deploy the rhetoric of physical property. By contrast, those who are concerned about maintaining public entitlements in information resist that rhetoric. In this Article, I take this dichotomy as a starting point for investigating the power of property rhetoric as a tool…

By Frances H. Foster. Full text here. Comparative law scholars use the term “legal transplant” to refer to the transfer of legal rules, institutions, and norms from one legal system to another. This Article identifies a valuable, previously unrecognized, feature of legal transplants. The transplant process can generate intensive study of the donor legal system by…

By Michelle M. Harner. Full text here. Corporations are vulnerable to the greed, self-dealing, and conflicts of those in control of the corporation. Courts traditionally regulate these potential abuses by designating the board of directors and senior management as fiduciaries. In some instances, however, shareholders, creditors, or others outside of corporate management influence corporate decisions and,…

By Gerard N. Magliocca. Full text here. This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States. The analysis reaches three main conclusions. First, the opinion in the Slaughter-House…

By John H. Martin. Full text here. Probate, the judicial process for settling a decedent’s estate, has been vilified and shunned for nearly five decades. Its cost, delay, and lack of privacy motivate the public and their advisors to utilize a multiplicity of title formats and alternative devices to transfer assets at death. For some time…

By Richard A. Epstein. Full text here. Although the principle of personal autonomy is commonly accepted as the proper guide for health care decisions, that principle has been conspicuously absent in the area of drug regulation, where the FDA has the unquestioned power to keep drugs off the market if it deems them either unsafe or…

By Kristin E. Hickman & Claire A. Hill. Full text here. Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that…

By Mark D. Rosen. Full text here. In arguing that President Washington could not interpret a mutual defense treaty that potentially required America to join battle with France—but that only Congress could interpret the treaty on account of its power to declare war—James Madison reasoned that “the same specific function or act, cannot possibly belong to…

By Christopher C. Lund. Full text here. For fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle of neutrality, however, has become more controversial with time. Now even quite moderate judges and commentators reject it as a conceptual model for the Establishment Clause. Part of it is…

By Holning Lau. Full text here. This Article contributes to the literature on negotiation of identity scripts. For an example of such negotiation, consider the prominent case of Barack Obama. Commentators have noted that Americans typically perceive President Obama as a black man and ascribe him corresponding scripts—that is to say, socially constructed expectations—for “acting black.”…