This Article advances a novel positive theory of tort law. The Article’s core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is surprising and innovative, since tort scholars universally believe that the doctrines determining individuals’ liability for accidents—negligence, causation, and damage—are driven by harms, not...
No. 3
Miriam Cedarbaum had been a judge on the U.S. District Court for the Southern District of New York for six years when I joined that court in 1992. I count myself as lucky for so many reasons, but getting to serve alongside and learn from Judge Cedarbaum falls high on that list. Judge Cedarbaum […]
I must confess that I don’t read law reviews. Of course, I read law review articles, in the course of judicial research and keeping in touch with academic literature in areas of my scholarly interest, but like most judges and lawyers, I don’t have time or interest to just pick up the latest issue […]
The Constitution has long protected the rights of individuals to procreate and parent, free from government intrusion. But as new technologies stretch the boundaries of what it means to create a family, the scope of these rights have come into question. Specifically, modern advances in genetic modification will soon allow parents to make direct modifications to particular embryos. The possibility of such advances gives rise to questions about how...
The United States is the single remaining United Nations (UN) member state that has not ratified the UN Convention on the Rights of the Child (CRC), the most important international human rights treaty governing children’s rights. This Note focuses on a key objection to U.S. ratification of the CRC: the fear that its emphasis on children’s rights threatens parents’ rights under U.S. law. This Note uses Article 12 of the CRC, which recognizes...
The problem of managerial agency costs dominates debates in corporate law. Many leading scholars advocate reforms that would reduce agency costs by forcing firms to allocate more control to shareholders. Such proposals disregard the costs that shareholders avoid by delegating control to managers and voluntarily restricting their own control rights. This Essay introduces principal-cost theory, which posits...
A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail....
In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping...
Introduction In his recent essay Between Scylla and Charybdis: Taxing Corporations or Shareholders (or Both), Dean David Schizer elucidates the complexities involved in choosing how to divide the tax burden on corporate profits between a tax paid by the corporation itself and one paid by its shareholders. He emphasizes the important point that strategic behavioral […]