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Volume 108 - Issue 6

Making Defendants Speak

By Ted Sampsell-Jones. Full text here. Criminal defendants have the constitutional right to choose between testifying and remaining silent at trial. Within that broad constitutional framework, many legal rules affect the defendant’s decision. Some rules burden testimony and encourage silence, while others burden silence and encourage testimony. There is no way for the state to be…

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Reason-Giving and Accountability

By Glen Staszewski. Full text here. This Article explains that elected officials are not politically accountable for their specific policy decisions in the manner that is typically envisioned by modern public law. It claims, however, that public officials in a democracy can be held deliberatively accountable by a requirement or expectation that they give reasoned explanations…

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The Myth of Self-Regulation

By Fred C. Zacharias. Full text here. The American legal profession is highly regulated. Lawyers are governed by state-enforced professional codes, supervised by courts, and constrained by civil liability rules, civil and criminal statutes, and administrative standards. Nevertheless, commentators and various actors in the legal system continue to conceptualize law as a “self-regulated profession.” The…

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Note: The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without Disturbing the Fashion Dynamic

By Margaret E. Wade. Full text here. As soon as fashion models hit the runway, copycat designers snap photos and quickly replicate the original designs, flooding the market with nearly identical, discount versions of the original garments. In response to this phenomenon of fashion piracy, members of the fashion design community have been advocating for a…

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Note: Who Are They to Judge?: The Constitutionality of Delegations by Courts to Probation Officers

By Mark Thomson. Full text here. In order to promote judicial economy, Article III courts routinely delegate decisionmaking authority to probation officers. Probationers increasingly challenge those delegations as violating the Constitution’s command that only Article III judges shall exercise “the Judicial power.” Courts apply either of two standards when evaluating the constitutionality of judicial delegations to…

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Public Choice and International Law Compliance: The Executive Branch Is a "They," Not an "It"

By Neomi Rao. Full text here. This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to traditional theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the many executive…

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Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible

By Kimberly Kessler Ferzan. Full text here. The traditional approaches to dangerous persons are crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: the state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this…

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Rights for Sale

By Tsilly Dagan & Talia Fisher. Full text here. Individuals enjoy a host of rights in relation to the government, including voting rights, the right against self-incrimination, the right to public education, pollution quotas, as well as various subsidies and tax attributes. Should individuals be able to sell these public entitlements to others? Markets for voting…

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Tort Law and the American Economy

By Frank B. Cross. Full text here. Claims that tort law is hampering the American economy are common and have produced various forms of tort reform legislation. Yet there is very little economic research on the consequences of existing tort law doctrines. Theoretically, at least, tort law can be economically beneficial. Two state-specific measures have been…

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