This article argues that modern economic formalism is nothing more than an argument for purportedly rational ignorance and closed-mindedness in courts. Although individuals may well be ignorant in many circumstances, courts ordinarily should not strive to be. The article first describes why rational ignorance and (to coin a phrase) “rational closed-mindedness” in individuals fail to generalize to courts. It then responds in detail to a leading formalist argument in contract law, demonstrating some characteristic failures of formalist arguments.
Finding Instruction from Punjab’s “Missing Girls”: Towards a Global Feminist Perspective on “Choice” in Abortion employs the current phenomenon of sex-selective abortions in Punjab (India) to call for a re-evaluation of the concept of “choice” as it pertains to women’s reproductive freedom. It is hoped that this case study of sex selection in Punjab will […]
Over the past two decades, the number of lawsuits filed against multinational corporate entities for environmental degradation and human rights abuses has skyrocketed. At the same time, U.S. courts have shown an increasing reluctance to hear such cases, turning to the common-law doctrine forum non conveniens (FNC) as a basis for dismissal. FNC dismissals usually […]
This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, the authors show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely […]
This article challenges the standard narrative of the Lochner era by challenging one of its most basic assumptions: that the idea of right existing at the beginning of the twentieth century was the modern notion of right-as-trump. Precisely the opposite view prevailed during the first two decades of the century: rights could easily be trumped […]
Unlike many other developed (and developing) nations, the United States does not have a statute authorizing preventive detention without charges. U.S. law has no formal statutory mechanism by which such a person could be detained. Some have suggested that this is a potentially profound defect in our national security armature. Indeed, had a rational preventive […]
Over the past decade, scholars have paid increasing attention to Japanese-American constitutional history. For the most part, this literature focuses on the government’s decision during World War II to intern people of Japanese ancestry. But the trope of the Japanese as perpetual foreigners predates internment. My aim in this Article is to explore another historical […]