Journal of Legal Analysis最新文献

{"title":"Unsettled: A Global Study of Settlements in Occupied Territories","authors":"E. Kontorovich","doi":"10.2139/SSRN.2835908","DOIUrl":"https://doi.org/10.2139/SSRN.2835908","url":null,"abstract":"This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy. Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically. To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.The deeper understanding – based on a systematic survey of all available state practice – of the prohibition on settlements should ","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"103 1","pages":"285-350"},"PeriodicalIF":2.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77757554","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":"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}

{"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}

{"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}

{"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}

{"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}

{"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}