Is property a flexible bundle of rights or a stable legal category? Since the late 1990s, prominent scholars have rejected the conventional wisdom that the bundle metaphor defines property. These “new essentialists” have sought to reclaim property as a distinct legal category with a definable core. Their academic project is now highly salient because the American Law Institute is engaged in a project of restating property law, directed by a leading new essentialist. This article takes stock of the new essentialists’ efforts to offer a new understanding of property. It distills the core elements of the new essentialist definition of property. Most importantly, it argues that this definition is highly malleable and not as distinct from the bundle picture as the new essentialists and their critics suppose.
{"title":"The New Essentialism in Property","authors":"K. Wyman","doi":"10.1093/JLA/LAY002","DOIUrl":"https://doi.org/10.1093/JLA/LAY002","url":null,"abstract":"Is property a flexible bundle of rights or a stable legal category? Since the late 1990s, prominent scholars have rejected the conventional wisdom that the bundle metaphor defines property. These “new essentialists” have sought to reclaim property as a distinct legal category with a definable core. Their academic project is now highly salient because the American Law Institute is engaged in a project of restating property law, directed by a leading new essentialist. This article takes stock of the new essentialists’ efforts to offer a new understanding of property. It distills the core elements of the new essentialist definition of property. Most importantly, it argues that this definition is highly malleable and not as distinct from the bundle picture as the new essentialists and their critics suppose.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"1 1","pages":"183-246"},"PeriodicalIF":2.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73990441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Thisarticleexplorestheprevalenceofunenforceableandmisleadingtermsinresidential rental contracts. For this purpose, the study analyzes a sample of seventy residential leasesfromtheGreaterBostonAreaintermsofMassachusettsLandlordandTenantLaw. The article’s findings reveal that landlords often use deceptive—as well as clearly in-valid—provisions in their contracts, and regularly fail to disclose the vast majority of the mandatory rights and remedies that the law bestows upon tenants in their leases. Building on psychological insights and on survey evidence, the article suggests that this drafting pattern may significantly affect tenants’ decisions and behavior. In particu-lar,whenaproblemoradisputewiththelandlordarises,tenantsarelikelytoperceivethe terms in their lease agreements as enforceable and binding, and consequently forgo validlegalrightsandclaims.Therefore,thearticleexpectsthatsuchclauseswillpersistas long as monitoring and enforcement mechanisms do not sufficiently deter landlords from using such terms in their contracts. In light of this evidence, the article discusses preliminary policy prescriptions.
{"title":"On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market","authors":"Meirav Furth-Matzkin","doi":"10.1093/JLA/LAX002","DOIUrl":"https://doi.org/10.1093/JLA/LAX002","url":null,"abstract":"Thisarticleexplorestheprevalenceofunenforceableandmisleadingtermsinresidential rental contracts. For this purpose, the study analyzes a sample of seventy residential leasesfromtheGreaterBostonAreaintermsofMassachusettsLandlordandTenantLaw. The article’s findings reveal that landlords often use deceptive—as well as clearly in-valid—provisions in their contracts, and regularly fail to disclose the vast majority of the mandatory rights and remedies that the law bestows upon tenants in their leases. Building on psychological insights and on survey evidence, the article suggests that this drafting pattern may significantly affect tenants’ decisions and behavior. In particu-lar,whenaproblemoradisputewiththelandlordarises,tenantsarelikelytoperceivethe terms in their lease agreements as enforceable and binding, and consequently forgo validlegalrightsandclaims.Therefore,thearticleexpectsthatsuchclauseswillpersistas long as monitoring and enforcement mechanisms do not sufficiently deter landlords from using such terms in their contracts. In light of this evidence, the article discusses preliminary policy prescriptions.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"23 1","pages":"1-49"},"PeriodicalIF":2.2,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80973289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"An Autopsy of Cooperation: Diamond Dealers and the Limits of Trust-Based Exchange","authors":"Barak D Richman","doi":"10.1093/jla/lax003","DOIUrl":"https://doi.org/10.1093/jla/lax003","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"1 1","pages":"247-283"},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Property Is Only Another Name for Monopoly","authors":"Eric A. Posner,E. Glen Weyl","doi":"10.1093/jla/lax001","DOIUrl":"https://doi.org/10.1093/jla/lax001","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"49 2","pages":"51-123"},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Unsettled: A Global Study Of Settlements In Occupied Territories","authors":"Eugene Kontorovich","doi":"10.1093/jla/lax004","DOIUrl":"https://doi.org/10.1093/jla/lax004","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"22 5","pages":"285-350"},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.
{"title":"Calibrating Legal Judgments","authors":"F. Schauer, Barbara A. Spellman","doi":"10.1093/JLA/LAW010","DOIUrl":"https://doi.org/10.1093/JLA/LAW010","url":null,"abstract":"In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"19 1","pages":"125-151"},"PeriodicalIF":2.2,"publicationDate":"2016-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84848265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power. The purpose of this article is to analyze the role that various guidance statements have played in the modern law of administrative procedure. In one sense this inquiry is an odd one, because the canonical statute of administrative law, the Administrative Procedure Act of 1946 (APA), 5 U.S.C. § 500 et seq, does not use the term “guidance” at all. Historically, the phrase only worked its way into administrative law in the mid-1990s, about 50 years after the passage of the APA
本文考察了APA下行政指导的兴起。指导方针提供了信息，使私人当事人可以依法组织他们的行为，但也允许机构在没有通知和评论的情况下不分青红皂白地扩大他们的权力。将有用的指导意见与危险的指导意见区分开来，需要允许将所有指导意见作为法律问题重新审查，而不需要任何利益相关方服从雪佛龙和斯基德莫尔，即使是非最终机构行动。私人选择效应将限制对危险指导方针的挑战，而不会破坏那些减少不确定性的指导方针，而不会不当扩大代理权力的范围。本文旨在分析各种指导性陈述在现代行政程序法中所起的作用。从某种意义上说，这项调查是一项奇怪的调查，因为行政法的规范法规，即1946年的行政程序法(APA)， 5 U.S.C.§500 et seq，根本没有使用“指导”一词。从历史上看，这个短语直到20世纪90年代中期才进入行政法，大约在APA通过50年后
{"title":"The Role of Guidances in Modern Administrative Procedure: The Case for De Novo Review","authors":"R. Epstein","doi":"10.1093/JLA/LAV012","DOIUrl":"https://doi.org/10.1093/JLA/LAV012","url":null,"abstract":"This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power. The purpose of this article is to analyze the role that various guidance statements have played in the modern law of administrative procedure. In one sense this inquiry is an odd one, because the canonical statute of administrative law, the Administrative Procedure Act of 1946 (APA), 5 U.S.C. § 500 et seq, does not use the term “guidance” at all. Historically, the phrase only worked its way into administrative law in the mid-1990s, about 50 years after the passage of the APA","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"18 1","pages":"47-93"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81318049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The modern American administrative state is a regime of lawmaking by ad hoc managed democracy. It is the product of modern affluence and technology—which have reduced political transactions costs, increased demands for government intervention, and enabled Congress to supply the increased demands by transferring lawmaking to executive agencies. Specialized, hierarchical agencies can employ communication and information technology much more thoroughly than a conflict-riven legislature, and thereby generate law on a much larger scale. Today’s administrative state departs from traditional rule-of-law values in important respects; understanding its roots in affluence and technology points to both constraints and opportunities for legal reformers. 1. I NTRODUCTION
{"title":"Can the Administrative State be Tamed","authors":"C. Demuth","doi":"10.1093/JLA/LAW003","DOIUrl":"https://doi.org/10.1093/JLA/LAW003","url":null,"abstract":"The modern American administrative state is a regime of lawmaking by ad hoc managed democracy. It is the product of modern affluence and technology—which have reduced political transactions costs, increased demands for government intervention, and enabled Congress to supply the increased demands by transferring lawmaking to executive agencies. Specialized, hierarchical agencies can employ communication and information technology much more thoroughly than a conflict-riven legislature, and thereby generate law on a much larger scale. Today’s administrative state departs from traditional rule-of-law values in important respects; understanding its roots in affluence and technology points to both constraints and opportunities for legal reformers. 1. I NTRODUCTION","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"29 1","pages":"121-190"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88349938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Concerns about the rule of law in the modern administrative state are not only the result of our current legal system, but of our historical experience. Our legal tradition provides us with no precedents for imposing rules on executive power or authority. English kings created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced the scope his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law.Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act (APA) reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know that category as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. The unsolved problem in administrative law is to impose rules on action that falls within that category, that is, executive action, without impairing government’s ability to act. Methods for doing so could include substantive standards such as rationality, imposed by a revised APA and enforced by courts, or new supervisory institutions such as an the ombudsperson, or new procedural requirements, such as a revision of the APA notice and comment provisions that would be based on the concept of policy making rather than legislation by elected representatives.
{"title":"Executive Action: Its History, its Dilemmas, and its Potential Remedies","authors":"E. Rubin","doi":"10.1093/JLA/LAW008","DOIUrl":"https://doi.org/10.1093/JLA/LAW008","url":null,"abstract":"Concerns about the rule of law in the modern administrative state are not only the result of our current legal system, but of our historical experience. Our legal tradition provides us with no precedents for imposing rules on executive power or authority. English kings created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced the scope his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law.Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act (APA) reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know that category as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. The unsolved problem in administrative law is to impose rules on action that falls within that category, that is, executive action, without impairing government’s ability to act. Methods for doing so could include substantive standards such as rationality, imposed by a revised APA and enforced by courts, or new supervisory institutions such as an the ombudsperson, or new procedural requirements, such as a revision of the APA notice and comment provisions that would be based on the concept of policy making rather than legislation by elected representatives.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"35 1","pages":"1-46"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81811483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast
Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.
{"title":"Executive Opportunism, Presidential Signing Statements, and the Separation of Powers","authors":"Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast","doi":"10.1093/JLA/LAV013","DOIUrl":"https://doi.org/10.1093/JLA/LAV013","url":null,"abstract":"Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"8 1","pages":"95-119"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89215513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：