Genetic Property

Under U.S. law, there is no property interest in mere facts. But with respect to factual data relating to human genes, a de facto property regime has emerged in all but name. The level of control that individuals have exerted over genetic data exhibits the classic hallmarks of Blackstonian property: the right to exclude, the […]

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Coercive Insurance and the Soul of Tort Law

Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives […]

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Enduring Originalism

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, […]

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The Votes of Other Judges

Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them—statutes, regulations, […]

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Finding a Free Speech Right to Homeschool: An Emersonian Approach

On May 25, 1993, the Supreme Court of Michigan decided that one family was constitutionally protected from the state’s stringent homeschooling requirements but another was not. The key difference between these families was not the quality of the education each provided—the trial records indicate that the education both families’ children received was as good as, […]

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Online Loans Across State Lines: Protecting Peer-to-Peer Lending Through the Exportation Doctrine

In 2005, the first online peer-to-peer lending platform appeared in the United Kingdom. The premise was simple: provide a system for facilitating lending and borrowing between individuals. Rather than borrow through financial institutions, borrowers were provided the opportunity to bypass those intermediaries and find individuals willing to lend through an online platform. By 2006, peer-to-peer […]

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