Category Archives: Ideas

The Flood: Political Economy and Disaster

As summer faded to fall in 2005, a hurricane hit New Orleans, a city so unique in its history that it has more history than many American cities. It was nonetheless an American city in these telling parameters: a city … Continue reading

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The U.S. Supreme Court Upholds the Health Care Reform Law: What’s Next for Employer-Sponsored Group Health Plans?

In March of 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (commonly referred to as the health care reform law and hereinafter as the “Affordable Care Act” or “PPACA”).  Despite its stated dual intent … Continue reading

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The Gamification of Work

Ender’s Game and its element of attack by a hostile alien species are, thankfully, wholly within the realm of science fiction. However, the idea that people could be working while they play a video game—in some instances without even knowing … Continue reading

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“Play in the Joints Between the Religion Clauses” and Other Supreme Court Catachreses

Even when the U.S. Supreme Court reaches the right result in a matter involving church-state relations, the Justices too often do so for the wrong reasons. Cutter v. Wilkinson is illustrative. Decided during the Court’s last term, Cutter reversed a … Continue reading

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Moralizing in Public

Chief Justice Earl Warren once remarked: “In civilized life, law floats in a sea of ethics.” There is, in other words, a foundation of ethical values for the law. In performing our legal duties, we are also satisfying our ethical … Continue reading

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Henry Lord Brougham and Zeal

In a recent article, Professors Fred Zacharias and Bruce Green undertook to “reconceptualize” advocacy ethics. In the course of that article, they rejected the ethic of zeal, and stated erroneously that Henry Lord Brougham had himself repudiated his famous statement … Continue reading

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The Supreme Court Will Not Overrule Roe v. Wade

The recent confirmation of two purportedly conservative Justices to the Supreme Court has fueled media speculation that the Supreme Court may be “poised to overrule Roe v. Wade.” The speculation has been fanned by South Dakota’s recent enactment of a … Continue reading

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The Positive and Normative Puzzle of Decision Rules for Juries: the Example of Decision Rules for Civil Litigation in State Courts

All of the decision rules for juries in state courts, deciding civil cases, are what may be characterized as “two way” rules. Whatever consensus is required to secure a favorable verdict applies to all parties to the litigation. The governing … Continue reading

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The Lawlessness of Aggregative Torts

Aggregative torts rely on nontraditional theories of liability in which collective, rather than individual, interests are paramount. All legal rules are to some extent aggregative in that they purport to treat all similarly situated persons alike. But traditionally, in most … Continue reading

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Executive Power, the Commander in Chief, and the Militia Clause

One of the great constitutional struggles in the United States depends on our vision of government. In dealing with that question in connection with the issues of federalism, the prevailing modern wisdom since the 1937 term of the Supreme Court … Continue reading

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