Abstract:
Abstract: In this brief essay, Professor Jordan argues that the Supreme Court missed the boat in both Christensen v. Harris County and U.S. v. Mead. In both decisions, the Court held that certain agency statutory interpretations qualify for Chevron deference, while others are to be reviewed under the principles of Skidmore v.Swift and Co. Christensen held that informal agency statements such as opinion letters qualify only for Skidmore review. Mead held that Chevron deference applies only when the agency has been delegated the authority to make rules with the force of law and has issued its interpretation in the exercise of that authority. Professor Jordan argues that Christensen will result in the same interpretive issue being decided by the courts in some instances and by agencies in other circumstances, depending upon the format in which the agency stated the interpretation under review. Thus, the courts will sometimes decide questions of statutory interpretation that have been delegated to a federal agency. This creates a tension between the branches and considerable confusion about the status of interpretations initially reached by courts. Professor Jordan then argues that Mead further complicates matters by creating an amorphous test that will generate a great deal of litigation without any discernable benefit. Professor Jordan suggests an alternative approach that avoids any need to choose between Chevron and Skidmore. Drawing upon arguments that Chevron Step 2 review is comparable or equivalent to arbitrary and capricious review, he suggests that Step 2 review itself would inherently distinguish among various types of agency decisions. The more formal the decision, the greater the authority of the agency office issuing the interpretation, the more likely it is that the interpretation would be supported by a well-reasoned explanation. The less formal the decision, the lower its source in the agency hierarchy, the less likely there will be a well-reasoned explanation that could pass review in the nature of the "hard look" test under the arbitrary and capricious standard. Thus, he argues, there is no need to draw fine and difficult distinctions between different types of agency interpretations. Active review under Chevron Step 2 would do the job.
Abstract: The Paper explores the peculiarity of the judicial approach of the European Court of Justice in the delicate field of the principle of equality. The main relevant decisions are examined under two different points of view. First of all, in order to answer to the question "how", it is analysed the legal reasoning which has allowed the Court to reach a certain solution. Secondly it is analysed, in order to answer to the question "why", the reason, very often of a political nature, behind a certain judicial approach of the European Court of Justice.
Abstract: A growing body of literature shows that law students exhibit unique signs of psychological distress, including elevated levels of depression, stress, and anxiety. Law students also report significantly higher incidences of alcohol and drug abuse than their peers at other graduate schools. The article assesses the programs that 75 top law schools currently use to combat these alarming trends and finds that they are primarily reactive and that they do not sufficiently address the source or the scope of the problem. This article explores some of the ways in which positive psychology may be uniquely suited to address this student distress. The scientific literature offers a number of methodologies that law schools could utilize to help insulate students from stress and depression. The article then presents the results of an empirical study in which one of these methods was tested in the law school context. The study showed high rates of depression and stress, similar to the results of earlier studies, and shows a very high correlation between stress and depression. The results also confirm that students who find ways to use their top strengths are less likely to suffer from depression and stress and more likely to report satisfaction with life. Encouraging students to utilize their personal strengths may therefore act as a buffer against psychological distress in law school. The article concludes with suggestions for law schools to incorporate these findings and other well established positive psychology principles into a proactive program to benefit their students.
Abstract:
In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous, seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This paper examines its resilient appeal (with a particular focus on Scalia's Textualism).By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin's value theory, and Minimalism), the paper demonstrates that the heart of Originalism's appeal rests in its promise of objectivity. The paper also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity.
Abstract:
Compensatory Justice Jurisprudence took birth in the case of Rudal Sah when the Hon'ble Supreme Court broke one more link in the shackles of restrictive interpretation and added another feather in the cap of Article 21 to crown the personal life and liberty of people. Post Rudal, there are a series of judgments discussed in the present paper which strengthened the power of Supreme Court and High Courts to compensate the victims or their dependents for the excesses done by the State machinery or on failure of State to take care when there was a duty imposed upon them to exercise reasonable care. There are cases ranging from 'birth after vasectomy' to 'death due to open manholes' to 'custodial death' wherein Supreme Court has ventured out to grant compensation. Over a period of time, the Hon'ble Supreme Court has given a dynamic interpretation to the constitutional remedies provision under the Constitution so as to enhance the fundamental rights of an individual. The present paper examines the cases in which the Courts have awarded compensation for the excesses committed by the state or for negligence of the State as well as examine the self-imposed restrictions of Supreme Court in not awarding compensation in certain cases. However, the question always remain as to what is the rationale for providing such compensation and if granted how much is to be granted. Further what is the criterion for providing the compensation or it is ad hoc. What about the erring officials in discharging their public duty and finally whether judicial activism has led to judicial adventurism.
Abstract:
I review and comment herein on Anupam Chander's article, Minorities, Shareholder and Otherwise, 113 Yale L.J. 119 (2003). My critique focuses mainly on his underlying premise or, to put it another way, on showing that his analysis of corporate law doctrine is fundamentally flawed. Chander argues that, unlike constitutional law, "corporate law places minorities at the heart of its endeavor." Central to his project is an empirical claim that corporate law has an "elaborate framework" for "minority interests in the corporation." I argue that Chander's theoretical construct rests on a doctrinal foundation of sand. He persistently overstates the extent to which corporate law protects minority shareholders, while understating the freedom that law gives majority shareholders.
Abstract: Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.
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