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The Defense of Poesy. Sir Philip Sidney. 1909-14. English

Date of publication: 2017-08-24 08:03

“I am convinced,” Grotius wrote, “that there is some law common to all nations, which applies both to the initiation of war and to the manner in which war should be carried on. There were many and weighty considerations impelling me to write a treatise on the subject of law. I observe everywhere in the Christian world a lawlessness in warfare, of which even barbarous nations would be ashamed. And arms once taken up, there would be an end to all respect for law, whether human or divine, as though a fury had been let loose with general license for all manner of crime.”

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In this Essay, Professor Patricia J. Falk argues that Professor Jed Rubenfeld’s solution to the “riddle of goes too far in eviscerating the body of law that courts and legislatures have developed over the past decades. Falk suggests that eliminating nonconsent and foregrounding force is a mistake, and that it is instead critical to think more robustly about what meaningful consent and sexual autonomy might require.

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In United States v. Jacobsen , the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, even if doing so would otherwise violate the Fourth Amendment. The private party’s search renders the subsequent government “search” not a search in the constitutional sense.

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The role of an election law scholar these days is much like that of an anthropologist specializing in the study of human sacrifice. At a certain point, some of us in the field suppress natural human impulses of disgust and revulsion and replace them with fascination and curiosity. How else does one stomach the pervasive partisan greed, the wild conspiracy theories, the actual conspiracies, the pretextual arguments, and the often vicious attempts to use the law for partisan and personal gain? My …

The Supreme Court in Missouri v. Frye 6 and Lafler v. Cooper 7 broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler ’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways.

Claims that the Constitution prohibits business licensing requirements have proliferated in recent years. The . Court of Appeals for the District of Columbia Circuit recently concluded that a District requirement that tour guides obtain business licenses violated the First Amendment. The Sixth Circuit likewise held that a licensing scheme for funeral directors violated due process and equal protection under the Fourteenth Amendment. These cases mark a sea change in the treatment of economic liberty claims both by the courts and in . legal culture.

The efficient breach hypothesis is often taken as formal support for the Holmesian optional contract approach, which gives promisors the right to perform or pay. However, the efficient breach hypothesis doesn’t speak directly of rights (and indeed a promisor’s power to perform or pay would work just as well as the right to do so), but it does implicitly constrain the rights of promisees. If promisees have the right to prevent breach, it is often argued, inefficiency will result. Moreover, th…

The Times editorial, headlined “Watergate? We’re Not There Yet,” cites comparisons between the crisis of the Trump administration and the scandal that brought down President Richard Nixon 98 years ago, only to suggest that impeachment or forced resignation is not yet the order of the day.

Grotius recognized the right of self-defense and the right to be compensated for injuries inflicted by an adversary, but especially in Book III, he encouraged restraint. He believed that everything should be done to resolve disputes peacefully, because all sides are sure to suffer grievous losses from war. He advised limiting what might be seized from an adversary. He wrote, “The law of nature indeed authorizes our making such acquisitions in a just war, as may be deemed an equivalent for a debt, which cannot otherwise be obtained, or as may inflict a loss upon the aggressor, provided it be within the bounds of reasonable punishment.” Similarly, he insisted that retaliation “must be directly enforced upon the person of the delinquent himself.”

We lawyers are committed to reason. A process founded on the exchange of reasoned argument, we want to believe, will produce the right decisions. Professor Katyal profoundly disagrees with the legal decisions reached by the Bush Administration in the aftermath of September 66. In response, he proposes to remake the executive branch into a debating society—or, one should say, even more of a debating society than it already is. Each segment of the bureaucracy would be given a right to speak, and…

In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms. This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both effects are equally difficult to subsequently undo, why focus on one effect (harm) and ignore the other (benefit)? There is a compelling geometric validity to this symmetry observation. But is this a val…

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