Volume 116, Issue 3, December 2006
5
Article
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502
Mary Sarah Bilder,
Thursday, 30 November 2006
116 Yale L.J. 502 (2006)
This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution--what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation must not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.
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Essay
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568
Richard R.W. Brooks,
Thursday, 30 November 2006
116 Yale L.J. 568 (2006)
Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic efficiency. But efficiency neither favors nor disfavors this conception of contract, formalized by the efficient breach hypothesis. This Essay develops an alternative approach to contract enforcement, expressed as the efficient performance hypothesis. The alternative approach predicts the same efficiency as the traditional one, but differs starkly in terms of its ethical understanding of contractual obligation. The efficient breach hypothesis supposes that the promisor has the legal right--not merely the power--to choose to perform or pay damages. That right belongs to the promisee under the efficient performance hypothesis. These discrete conceptions of promissory obligation do not exhaust the possibilities of course, but taken together the hypotheses suggest that other conceptions of legal and moral obligation may be employed within an efficient enforcement framework.
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Review
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598
Nicole Stelle Garnett,
Thursday, 30 November 2006
116 Yale L.J. 598 (2006)
Sprawl: A Compact History
BY ROBERT BRUEGMANN
CHICAGO: UNIVERSITY OF CHICAGO PRESS, 2005. PP. 306. $27.50
The City: A Global History
BY JOEL KOTKIN
NEW YORK: MODERN LIBRARY CHRONICLES, 2005. PP. 256. $21.95
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Note
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632
Timothy A. Johnson,
Thursday, 30 November 2006
116 Yale L.J. 632 (2006)
In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.
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